Victim Wrongs: The Case for a General Criminal Defense Based on Wrongful Victim Behavior in an Era of Victims' Rights

94 Pages Posted: 11 Nov 2004

See all articles by Aya Gruber

Aya Gruber

University of Southern California Gould School of Law


Criminal law scholarship is rife with analysis of the victims' rights movement. Many articles identify with the outrage of victims harmed by deviant criminal elements. Other scholarly pieces criticize the movement's denuding of defendants' constitutional trial rights. The point upon which proponents and opponents of the movement tend to agree, however, is that the victim should never be blamed for the crime. The helpless, harmed, innocent victim is someone with whom we can all identify and someone to whom we can all express sympathy. Victim blaming, by all accounts, is an act of legal heresy to feminists, victim advocates, and many criminal law scholars. The aversion to victim-blaming is likely part of the reason why there is a dearth of legal scholarship concerning formal victim blaming defenses.

The reality is, however, that the criminal law currently contains doctrines that absolve defendants of liability based on the conduct of the victim. Most obviously, self-defense exculpates a defendant for killing when the victim has engaged in imminently life-threatening conduct. Other victim liability defenses in the criminal law include provocation, defense of others, and defense of property. The problem is that there is no true doctrinal coherence in the existing victim liability defenses. They arbitrarily provide defenses to some defendants who respond to victim conduct and not others. Consequently, defendants who commit crimes, not because the victim is wrongful, but rather because the victim possesses certain minority traits disfavored by the defendant, are eligible for defenses under the current system. Current victim liability law often provides a pass to "reasonable racists," "provoked" wife-killers, and those who kill because of homosexual advances.

A critical analysis of victim blaming defenses is more important now than ever. The victims' rights movement has elevated the crime victim to near party status in the criminal prosecution, propelling the once very public arena of criminal law toward privatization. The political force of the victims' rights movements is derived at least in part from a one-side characterization of victimhood, which portrays victims as ultimately irreproachable, truthful, and almost saintly. Juxtaposed with this is an image of the criminal defendant as guilty, unremorseful, and evil. As a result of this incomplete characterization, victims who are themselves wrongful actors are able to utilize the prevailing victimization narratives to gain the panoply of rights and moral sanctity conferred by the victims' rights movement.

As a response to this problem with the privatization trend, this article proposes that the criminal law take a fuller view of victims and provides a coherent mechanism through which victim wrongdoing may be assessed at the liability level. The "non-specific victim liability defense" is a defense that applies to any crime. It requires that: (1) the victim engaged in sufficiently wrongful conduct; (2) the wrongful conduct caused the defendant to commit the charged offense; (3) the defendant was not predisposed to commit the charged offense; and (4) the defendant's response balances against the victim's wrongful conduct dictates that the defendant should be exculpated or punishment should be mitigated. This defense represents both a philosophical response to the privatization trend and a logical reformation of existing law. It solves some of the difficult race and gender problems of current victim liability law because it is more prescriptive than descriptive: It requires that the defendant respond to wrongful victim conduct. The defendant is subsequently prevented from asserting the defense if his criminal conduct was based, not on wrongful conduct, but on his own patriarchal, homophobic, or racist belief system.

Part I of the article examines the trend toward increased focus on the victim and the movement in criminal law toward privatization. Part II analyzes the problem with the victims' rights movement and discusses the need for a more complete picture of the victim. Part III discusses several problems with the current collection of specific victim liability defenses that can be remedied by substituting the non-specific victim liability defense. Part IV expounds upon the meanings of the elements of the defense and its practical application.

Keywords: criminal law, defenses, victims' rights, provocation, self-defense, battered women

JEL Classification: K14, K42

Suggested Citation

Gruber, Aya, Victim Wrongs: The Case for a General Criminal Defense Based on Wrongful Victim Behavior in an Era of Victims' Rights. Available at SSRN:

Aya Gruber (Contact Author)

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

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