Basic Values and the Victim's State of Mind

Abstract

The definitions of some criminal offenses, such as theft and rape, make explicit reference to the victim's state of mind. But the victim's psychology, either in the form of pain and suffering, or in the form of lack of consent, is an important, if tacit, consideration in many other offenses as well. In this paper I undertake a preliminary systematic investigation of this general topic. I do so by examining the relevance to criminal law of victims' states of mind in light of different basic values that law can be said to advance. Within the liberal tradition, the moral significance of pain and suffering is underwritten most emphatically by classical utilitarianism and its experiential conception of human welfare. But the significance of such negative experiences must be qualified by recognizing that even such offenses as assault and rape can be sometimes committed without the victim's awareness and, hence, without experiential consequences of any kind. It is natural to shift here to a different value, autonomy, that highlights the importance in such cases of the victim's lack of consent. The bulk of the article focuses, however, on a third group of cases, in which the allegedly wrongful action is consensual, and does not detract from the putative victim's overall welfare. To account for such cases, in which the offense bears no negative relation to the victim's psychology, we need to invoke a third value, dignity. Due to their symbolic social meaning, I argue, certain actions can convey disrespect toward their victims and thus offend against their dignity quite apart from how these actions relate to the victims' welfare or their will.