The Relevance of Victim Conduct in Tort and Criminal Law

Abstract

In her ambitious and wide-ranging article, Professor Vera Bergelson challenges a fundamental precept of criminal law doctrine and theory—that victim conduct is and should be largely irrelevant to the defendant’s criminal liability. Bergelson believes that this supposed irrelevance is overstated as a descriptive account of the criminal law, and is normatively indefensible. She offers her own specific proposal for accommodating victim conduct in determining criminal liability and sentencing. In this comment, I will suggest that her counterproposal is highly problematic, especially in its reliance on superficially analogous comparative fault principles in tort law. After describing her proposal in more detail, I identify some difficulties with the “conditionality of rights” framework, with the assumption that consent is a species of victim fault that can readily be compared to the defendant’s fault, and with the claim that tort comparative fault principles are a desirable model for determining the relevance of victim fault in criminal law.