Righting Victim Wrongs: Responding to Philosophical Criticisms of the Nonspecific Victim Liability Defense

Source: (2004) Buffalo Law Review. 52: 433-510.

In recent decades, victims have become a much more integral participant in the criminal justice process. This is in large part due to the victims’ rights movement. Along with this, writes Aya Gruber, has been the promotion of a highly positive image of the victim – a “narrative of victimhoodâ€? in which the victim is utterly blameless, truthful, worthy of special consideration and rights, and trustworthy not to abuse those rights. Hence, while there is an increased presence of the victim in the criminal trial, there is not an equally increased scrutiny of wrongful victim behavior that may or may not assess a degree of possible liability on the part of the victim. In response, some advocate a nonspecific victim liability defense on behalf of the accused. It consists of a general defense that mitigates punishment or exculpates a defendant when his or her criminal behavior occurs in direct response to wrongful behavior on the part of the victim. In this context, Gruber seeks to develop and justify the nonspecific victim liability defense by responding to potential criticisms of the defense based in penal theory.