Comparative Fault in Criminal Law: Conceptual and Normative Perplexities

Abstract

Vera Bergelson has provided an ambitious defense of the thesis that victim fault is and ought to be relevant to the criminal liability of perpetrators. No theorist should respond that this thesis is fundamentally misguided; anyone who contends that victim fault is and ought to be irrelevant in all cases simply does not know what he is talking about. As Bergelson explains, pleas like selfdefense and provocation are clear instances in which the criminal liability of the perpetrator is altered by the faulty conduct of the victim. From here, the most powerful of Bergelson’s several arguments involves consistency of principle. If the fault of the defendant is so obviously significant on these occasions, why should it not be important elsewhere? Indeed, Begelson endorses a fairly radical change in our understanding of the nature of criminal liability by making victim fault relevant throughout broad areas of the criminal law.