NCLR 2005 8 2 503

Blaming the Victim: A Response to the Proposal That Criminal Law Recognize a General
Defense of Contributory Responsibility

Author(s): Heidi M. Hurd
Source: Buffalo Criminal Law Review, Vol. 8, No. 2 (January 2005), pp. 503-522
Published by: University of California Press
Stable URL: http://www.jstor.org/stable/10.1525/nclr.2005.8.2.503 .
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Blaming the Victim: A Response to the

Proposal That Criminal Law Recognize a
General Defense of Contributory
Responsibility
Heidi M. Hurd†
There is, perhaps, little that instills greater

professional pride in academics than to watch former
students go on to thriving careers within their disciplines.
The success of one’s students within one’s own professional
world seems proof that the pursuit of knowledge is a relay
race in which the scholars of each generation pass the
batons of the discipline to the next, with the promise that
the strides of each will preserve the advances made by the
strides of those who ran before. And so it is that I indulge
a great deal of selfish pride in commenting upon the recent
work of Professor Vera Bergelson, who, as a student of
mine at the University of Pennsylvania Law School all too
long ago, proved herself very adept at picking up and
running with the batons she was handed by her admiring
faculty members.
The particularly slippery baton that Professor
Bergelson so adeptly runs with in her provocative and
insightful article, “Victims and Perpetrators: An Argument
for Comparative Liability in Criminal Law,”1 is the
chestnut puzzle concerning the criminal law’s refusal to
recognize an explicit defense of “contributory
responsibility,” as I shall call it, on the part of the victim.
Consent is no defense to a crime, it is often said, nor is
assumption of risk or contributory negligence. But are
these mantras true? asks Professor Bergelson. And if they
are true, why would this be? Can a refusal to take account
of the victim’s own contributions to the harm for which the
† Dean and David C. Baum Professor of Law and Philosophy, Co-Director of

the Program for Law and Philosophy, University of Illinois College of Law.
1. Vera Bergelson, Victims and Perpetrators: An Argument for Comparative
Liability in Criminal Law, 8 Buff. Crim. L. Rev. 385 (2005).

504 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503
defendant is prosecuted really be justified? And how might

the criminal law craft a doctrine of contributory
responsibility so as to avoid the reductio ad absurdum that
all victims who could have foreseen their possible
victimhood are to blame for having become victims?
Professor Bergelson’s article examines these questions
at considerable length, providing, first, a detailed account
of the ways in which certain traditional criminal law
doctrines in fact make room for considerations of victim
complicity; second, a searching exploration of reasons why
the criminal law ought to embrace a general defense of
contributory responsibility if it is to honor rule of law
values and the principles of responsibility upon which its
other doctrines have long been thought to rest; and third,
an account of when victims can properly be held wholly or
partially responsible for the wrongdoing of others in ways
that reduce or eliminate the punishment owed those who
have harmed them.
It is the third part of her article on which I wish to
focus, but I would be remiss if I did not say that Professor
Bergelson’s treatment of the first two questions is
admirably thorough and persuasive. In part I, she aptly
makes clear that the common claim that victims cannot be
blamed is belied by several core defenses—namely, the
defenses (or partial defenses) of consent, self-defense, and
provocation/passion. While consent is classically no
defense to homicide, torture, maiming, or breach of the
peace, it makes all the difference in the world to the
viability of a prosecution for rape, kidnapping, assault,
theft, or trespass. As I have put it in past work, consent in
many circumstances is “morally magical”: by itself it alters
the moral ontology of another’s act, making it altogether
impossible to describe that act as involving even a prima
facie rights violation.2 Thus, consent turns a rape into love-
making, a kidnapping into a Sunday drive, a battery into a
football tackle, a theft into a gift, and a trespass into a
dinner party. Even minor maimings (tatoos and ear
2. Heidi M. Hurd, The Moral Magic of Consent, 2 Legal Theory 121 (1996).

2005] BLAMING THE VICTIM 505
piercings) and forms of torture (sadomasochism in the

bedroom) are converted from wrongs to rights by the
consent of those injured; and we can forsee the real
possibility of the law soon allowing a victim’s consent to
convert murder into suicide.
Certainly, the doctrine of self-defense explicitly takes
the role of the victim into account in assessing the
punishment owed to the defendant. Where the victim was
himself culpably aggressing against the defendant, the
defendant has a complete justification for resorting to
proportional force as a means of defending herself from
injury. And where the victim was an innocent aggressor,
the law has been considerably more ambivalent about
granting a justification (as opposed to an excuse) for
resorting to deadly force, thus revealing a preoccupation
with the fault that can be assigned to the victim in
assessing the penalty owed to the defendant. As Professor
Bergelson shows, this preoccupation is revealed most
clearly in the fact that persons are never thought to be
justified in defending themselves by using deadly force
against an innocent bystander—even when that would be
the only means of defending against a culpable aggressor
(or innocent aggressor) against whom deadly force would be
thought justified.
Finally, Professor Bergelson makes a compelling case
for provocation functioning as much as a partial justification
for a killing, as a partial excuse. Certainly it is hard to
make sense of a number of limitations on the Anglo-
American doctrine of provocation/passion without
attributing to the law a commitment to mitigating penalties
when victims have partially authored their own harms. For
example, one cannot make sense of why the common law
(and the jurisdictions that now embrace the common law’s
provocation/passion doctrine) would require provocation in
addition to passion at all, unless the victim’s provocative
conduct partially justified the defendant’s passion, and
thereby partially justified the deeds perpetrated in passion.
One cannot, by extension, make sense of the doctrine of
“misdirected retaliation” under which defendants do not get

the benefit of a penalty reduction when their provoked rage

led them (non-accidentally) to kill innocent bystanders,
unless one thinks that the innocence of the victims defeats
any claim to justification. One cannot account for why
passion would be unique in justifying a reduction in
homicide liability, given the similarly overwhelming
emotions of fear, despair, temptation, greed, and the like
(none of which provide grounds for reduced liability when
crimes are committed while in their grip), unless one thinks
that what is relevant to passion is that it follows from a
victim’s provocation. And one cannot morally motivate the
Model Penal Code’s simultaneous willingness to abandon a
provocation requirement, while preserving a requirement
that the defendant must have a “reasonable explanation or
excuse” for the “extreme mental or emotional disturbance” to
which his killing is attributed,3 except in cases in which that
requirement allows one to smuggle back in concern for the
victim’s conduct. The first part of Professor Bergelson’s
article thus nicely establishes that the criminal law has
sown the seeds for a general defense of contributory
responsibility by recognizing the “moral magic” with which a
victim’s consent often erases wrongdoing on the part of a
defendant altogether, and the justification (full or partial)
that a victim’s own wrongdoing gives a defendant who
responds to the victim with force.
Part II of her article advances a set of reasons why the
criminal law would do well to allow such a general defense
to spring from the seeds sown by the doctrines of consent,
self-defense, and provocation. First, as she maintains,
fundamental to a retributivist theory of criminal
punishment is the principle of “just desert”: punishment is
justified only if it accords with a defendant’s just deserts,4
3. Model Penal Code § 210.3(1)(b) (Official Draft and Revised Comments

1980).
4. This principle is often called the “weak principle of retributivism,” for it
makes desert a necessary but not sufficient condition for punishment. Such a
principle can as readily be embraced by mixed theorists as by retributivists. It is
to be distinguished from the more controversial “strong principle of
retributivism,” which holds that punishment is justified if and only if it accords
with a defendant’s just deserts”—a principle that makes desert a sufficient

and no one deserves to be held liable for harms she did not
culpably cause. When a victim has been a culpable
contributor to her own injury, a defendant’s liability ought
to be reduced in proportion to the victim’s culpable
contribution.5 Second, there are considerable efficiencies in
piggybacking the doctrines of responsibility within the
criminal law on common moral presuppositions: by so doing
the law requires fewer sanctions to make its messages
known, and causes fewer surprises that thwart reliance
interests and unsettle expectations in ways that are
chilling to liberty. Inasmuch as common moral practice
reveals that people give moral discounts to those who do
wrong to someone “who asked for it,” the law ought not to
set itself at odds with that practice by refusing to allow
jurors to do the same when assessing the blameworthiness
of a defendant. Third, the rule of law makes a virtue of
consistency, and unless and until the criminal law
recognizes a general defense of comparative responsibility,
it will generate inconsistencies “externally” between its
results and those of tort law (which does reduce damage
awards in cases involving culpably contributing plaintiffs),6
and internally between defendants who enjoy the ability to
condition for punishment, in addition to a necessary one.

5. Professor Bergelson puts her claim as follows: “Under the principle of just
desert, individuals should be responsible only for the amount of harm they
caused. Accordingly, to the extent the victim is responsible for a portion of the
harm, the offender’s liability should be reduced” (emphasis added). Bergelson,
supra note 1, at 454. I find this an unfortunate way of putting the principle, as it
suggests that the just desert principle requires comparative causation, rather
than comparative fault. When comparative negligence was first recognized in tort
law, some courts and commentators made the mistake of thinking that it invited
causal apportionment of damages, rather than an allocation of damages in
accordance with attributions of culpability, but that error has faded, and it would
be important not to reintroduce it in criminal law if the principle of just deserts is
a principle about relative fault, rather than relative causal contribution (as any
retributivist would believe it to be). I have thus put her point above in terms that
make this more clear.
6. Professor Bergelson treats the analogy to tort law as an argument
separate from the one concerning consistency. See id. at 446-54. But the point is
the same. Law ought to be consistent across its areas, and if it is going to reduce
tort defendants’ damage awards because of plaintiffs’ contributory fault, it ought
to reduce criminal defendants’ punishments because of victims’ contributory
responsibility.

defend against liability by invoking comparative

responsibility doctrines (consent, self-defense, and
provocation) and those who do not get to claim the
advantage of those doctrines, but who have nevertheless
done a wrong that could not have been done without the
culpable participation of the victim. Finally, Professor
Bergelson quite compellingly argues that inasmuch as the
victim’s fault is already a relevant “penalty mitigator” in a
court’s assessment of the appropriate punishment to be
imposed upon a convicted criminal, consistency demands
that it be considered an “eligibility mitigator” at the time of
trial, reducing not only the punishment received, but the
wrong for which the defendant is convicted.
In my view, while the first two parts of Professor
Bergelson’s article are interesting and at many points quite
compelling, the real interest of the article, and its greatest
contribution, lies in part III—the part devoted to
articulating what ought to count as contributory
responsibility on the part of a victim, and how the
responsibility of the victim for her own injury ought to be
balanced against the responsibility of the defendant so as
to mitigate the defendant’s punishment. Professor
Bergelson smartly sums up her thesis in part III as follows:
[C]riminal liability of the perpetrator should be reduced to

the extent that the victim, by his own acts, has diminished
his right not to be harmed. The victim may reduce his right
not to be harmed either voluntarily, by consent, waiver, or
assumption of risk, or involuntarily, by an attack on some
legally recognized rights of the perpetrator. The reduction
of the victim’s right not to be harmed correlates with the
reduction of the perpetrator’s liability.7
There is much to admire about the lengthy analysis

that leads up to this summary. But I want to suggest that,
in the end, the thesis, as stated and defended, is both
under- and over-inclusive: it would result in ascribing
liability to victims in cases in which so doing would be
7. Id. at 486.

morally counterintuitive, and it would result in failing to

mitigate a defendant’s liability in cases in which culpable
victims indeed invite their own injuries in ways that
seemingly demand reflection in the blame owed their
wrongdoers.
Let me begin with the fear of over-inclusivity that
derives from Professor Bergelson’s treatment of how
victims can voluntarily reduce their rights against others’
wrongdoing by assuming the risk of that wrongdoing.
According to Professor Bergelson, “[a]ssumption of risk is a
form of consent.”8 “Specifically,” she maintains, “it
constitutes express or implied consent to undertake a
certain risk of harm. Implied consent is given by, or may
be imputed to, the victim when he undertakes a substantial
risk—whether recklessly, negligently, or even non-culpably
(e.g., in a situation when the dangerous conduct may be
justified or excused by the circumstances).”9 According to
Professor Bergelson, a victim who impliedly consented to
encounter a substantial risk of another’s wrongdoing
reduced his right not to be harmed; and this, in turn, made
it less of a rights violation when the other’s wrongdoing in
fact materialized in injury. Thus, for example, a victim
who played Russian roulette (in a game in which players
held the gun to one another’s heads), knowing the risks
with mathematical precision and encountering them
precisely because he had an appetite for such risk, was
seemingly complicit in his own killing in a manner that is
relevant to assessing the punishment owed to the
participant who in fact pulled the trigger. And the victim
who eagerly participated in a drag race that cost him his
life appears to have been sufficiently responsible for his
own death as to justify a reduction in the homicide liability
imposed on his fellow racers.10
Professor Bergelson goes on to say that “[t]he
requirements for the valid assumption of risk are
8. Id. at 469.
9. Id.
10. See e.g., Commonwealth v. Peak, 12 Pa. D. & C.2d 379 (1957).

essentially the same as for consent in general.”11 If true,

that would mean that a victim could be thought to have
assumed the risks of a defendant’s wrongdoing whenever
she knew of those risks and voluntarily encountered
them.12 Certainly in the cases cited above in which we are
sympathetic to claims of assumption of risk, those criteria
are amply satisfied. But by themselves, these criteria will
not do. For we should then find that a woman who wore a
low-cut red dress to a rough bar reduced her rights against
rape if she knew that in dressing provocatively she might
incite the unwanted attentions of a drunken aggressor.
And we should find that the jogger who entered Central
Park at dusk knowing of the risk of being mugged was
complicit in his own mugging; his voluntary assumption of
a known risk properly reduces the penalty imposed on the
predictable assailant. And we should find that the woman
who ran to the store for a jug of orange juice on New Year’s
Eve voluntarily reduced her rights against being struck by
a drunk driver, for she knowingly and voluntarily invited
those risks when she ventured onto the roads on that
treacherous night. And we should find that a person who
knowingly left her keys in her car invited its theft, thus
reducing the penalty justifiably imposed on the car thief.
As these hypotheticals demonstrate, the law would be
unwise to articulate an assumption of risk defense that
reduced the criminal penalty for wrongdoing every time a
victim knowingly and voluntarily encountered its prospect.
What additional criteria might be added, beyond the
conditions of knowledge and voluntariness, in order to
distinguish the Russian roulette player, who indeed
appears complicit in his own death, from the lady in red,
whose appreciation of the risks of her attire seems a far cry
from making her complicit in her rape?
11. Bergelson, supra note 1, at 470.

12. As Professor Bergelson says, “[t]he less conscious the victim’s decision to
engage in a dangerous activity is, the more appropriate it may be to treat his
behavior as an involuntary, rather than a voluntary, reduction of rights.” Id. at
469.

One possibility is to place emphasis on Professor

Bergelson’s requirement that the risk encountered be
“substantial.” One might say that the Russian roulette
player and the drag racer are complicit in their deaths
because games of this sort are particularly high risk,
whereas the chances of being mugged in Central Park or
raped as a result of wearing provocative clothing are far
smaller. But I suspect that this criterion will fail to sort
the cases properly as well. Just imagine a game of Russian
roulette with a gun that has one hundred cylinders, instead
of six, making the risk of death identical to the risk of being
raped at the end of a long night in a bar in which one has
been provoking a good deal of attention with scanty attire.
Does the change of odds do anything to affect our view that
one who agrees to play Russian roulette is partially
responsible for his own death, in a way that one who
dresses provocatively cannot be said to have asked to be
raped?
An alternative possibility is suggested by Professor
Bergelson’s rather idiosyncratic unpacking of how consent
functions when it is employed as a defense in tort law. As
she says, “[u]nder the tort law, in order to be effective,
consent must be given for the particular, or substantially
the same, conduct of the actor.”13 Now this is a peculiar
way to put things. If the alleged tort is battery, the victim
must have consented to the contact inflicted by the
defendant—not simply to conduct on the defendant’s part
that might cause contact.14 If the alleged tort is trespass,
the victim must have consented to the defendant’s entry
upon her land; not simply to conduct that might result in
an entry.15 The point: Consent must take as its object the
actus reus of the alleged tort. A battery is a contact that is
deemed harmful or offensive by tort law. Hence, for
13. Id. at 470.

14. One who consents to another swinging her leg will not be thought to have
consented to a kick unless she equated a leg-swinging with a kicking.
15. One who consents to another swinging over her land does not consent to a
physical intrusion onto her property unless she knows or intends that the person
will drop from the swing.

consent to function as a defense, the plaintiff had to have

consented to the defendant’s contact: nothing short of that
will do.
It is tempting, however, to think that Professor
Bergelson’s somewhat misleading way of unpacking the
consent requirement is in fact revealing of what one might
want to add in order to construct an assumption of risk
defense in criminal law that would accurately parse
between those who drag race and those who leave their
keys in vehicles stolen by drag racers. One might want to
say that in order for a victim to reduce her rights against
wrongdoing voluntarily, she has to consent to the
defendant’s wrongful conduct, and not just to the risk that
that conduct will occur. A doctrine of this sort would be
different from the traditional consent defense as it
functions in intentional tort law, and different from the
traditional assumption of risk defense as it functions in
negligence law. Unlike in the traditional consent case in
which the victim must have consented to the defendant’s
contact, a victim to whom this doctrine would apply would
not have had to consent to the contact that ultimately
caused her injury—just as the Russian roulette player did
not consent to the penetration of his skull by the bullet.
But unlike in the traditional assumption of risk case in
which it is enough that the victim voluntarily consented to
a known risk, a victim who simply anticipated criminal
wrongdoing but did not license it—as in the case of the
jogger, the scantily clothed lady in red, and the woman who
left her keys in her car—cannot be thought to have reduced
her rights against such wrongdoing.
If adopted, this friendly amendment would alter
Professor Bergelson’s thesis concerning the circumstances
in which persons voluntarily reduce their rights as follows:
(1) One who consents to another’s physical contact to his
person or property voluntarily reduces (or altogether
waives) his right against that contact. Thus one who
consents to sexual intercourse cannot claim rape; one who
consents to a lethal injection must be thought to have
committed suicide; and one who leaves her cabin open as

an invitation to lost hikers to take shelter has negated the

claim that their use constitutes a trespass. In all such
cases, consent is morally magical: it eliminates wrongdoing
altogether. (2) One who consents to another’s wrongful
conduct, under circumstances in which he appreciates its
risks and its wrongfulness, must be thought complicit in
the wrong done him as a result of that conduct. Thus the
unlucky player who consents to another holding a gun to
his head and pulling the trigger during a game of Russian
roulette is partially responsible for his own death. The
landowner who consents to another’s lighting of a fire on an
unowned lot adjacent to his own is complicit in the loss of
his property when the fire spreads and burns down his
buildings. But no rights reduction occurs when a victim
drives on New Year’s Eve, knowing of others’ drunk
driving, but not consenting to it; or leaves money in a
plastic bag on her front porch, knowing of its temptation to
others but not consenting to their taking of it; or wears
provocative clothing to a rough bar, knowing of its risk, but
not consenting to intercourse by whomever might follow
her home.
I take there to be considerable analytic promise in
splitting the doctrinal baby this way. But the problem with
this proposed amendment is that it makes instances in
which we will find voluntary rights reductions by victims
far smaller in number than Professor Bergelson seems to
hope. Indeed, the category will largely remain occupied by
cases in which consent in its traditional form is doing the
work—cases in which the victim consented to the contact to
her person or property that ultimately proved harmful. It
is a rare thing for persons to consent to (as opposed to
knowingly encounter) wrongful conduct without also
consenting to the prima facie invasion of bodily integrity or
property that ensues. One consents to sexual intercourse;
one rarely consents to (as opposed to knowingly encounters)
conduct that is wrongful because it is likely to result in the
defendant subjecting one to non-consensual intercourse!
One consents to having another take one’s property; one
rarely consents to (as opposed to knowingly encounters)

conduct that is wrongful because it is likely to result in a

non-consensual taking of one’s property. In short, it is very
rare for a victim to consent to conduct on the part of a
defendant that is wrongful precisely because it threatens a
rights invasion, without also consenting to that rights
invasion so as to make it not a rights invasion at all. And
thus we can anticipate returning again and again to cases
and hypotheticals involving drag racing and Russian
roulette, precisely because these activities appear to be
rare exceptions to a general rule—exceptions generated by
peculiar persons who positively want others to put them in
deadly peril, without simultaneously consenting to their
own killings. In the end then, on pain of articulating a
grossly over-inclusive doctrine of contributory
responsibility, Professor Bergelson can ultimately extend
the reach of a victim’s voluntary reduction of her rights
barely beyond the reach of the current defense of consent.
Now let me take up why Professor Bergelson’s
conception of involuntary rights reductions makes her
proposed defense of contributory responsibility
counterintuitively under-inclusive. Professor Bergelson
repeatedly states that “[p]eople may not lose their rights
involuntarily if they have not violated a duty to the
perpetrator.”16 On the other hand, a victim who threatens
to wrong a defendant or a third party can be properly
thought the author of her own subsequent harm when the
defendant is forced to employ proportionate force as a
means of defending himself or others. And a victim who
wrongs a defendant in ways that provoke retaliation can be
thought partially complicit in her own subsequent injury.
Claims Professor Bergelson, it is the violation of a duty
owed by the victim to the defendant that makes sense of
why responsibility for a victim’s harm is and should be
visited upon that victim, in whole or in part.
Professor Bergelson aptly employs the conditions for
involuntary rights reductions to make clear why the
woman who leaves her keys in the car, and the jogger in
16. Bergelson, supra note 1, at 474; see also id. at 486.

Central Park, and the provocatively dressed woman in the

bar, do not involuntarily reduce their rights against theft,
assault, or rape. As she says, “[t]here is no legal duty that
requires people to lock their cars, or not walk down a street
after dark, or dress conservatively.”17 Hence, as we can
conclude on her behalf, unlike the provoker who
successfully provokes more than he intended, or the
culpable assailant who invites self-defense, those who
merely provide opportunities for wrongdoing, but who
violate no duties in so doing, may not be thought to have
reduced their rights.
Yet despite Professor Bergelson’s repeated claims that
involuntary rights reductions can occur only in cases in
which victims have violated duties to defendants, she often
crafts examples or issues claims that reveal an assumption
that a victim’s contributory negligence may mitigate a
defendant’s penalty. She says, for example:
When the perpetrator and the victim are equally culpable

(e.g., in cases of drag racing, dueling, or Russian roulette)
the conduct of the victim should be a stronger mitigator
than in cases when the perpetrator is more culpable than
the victim (e.g., in a case of a car crash, in which the
perpetrator drove recklessly whereas the victim was merely
negligent).18
As this suggests, Professor Bergelson clearly contemplates

that the criminal law ought to reduce the punishment of a
reckless driver by the contribution of a negligent victim
(even though that reduction will not, of course, match the
reduction of liability that would occur if the victim were
drag racing the defendant, or positively employing the
defendant’s driving as a means of committing suicide).
Similarly, she says: “[N]egligent or reckless behavior that
normally reduces the victim’s right not to be hurt may be
given little or no weight if the victim was a minor or
17. Id. at 474.

18. Id. at 485 (emphasis added).

incompetent and the perpetrator was aware of that.”19

Such a caveat clearly reveals a background commitment to
the general view that negligence on the part of the victim
ought to be a basis for claiming that the victim has reduced
her rights against injury, and that the defendant’s
wrongdoing ought therefore to be punished proportionately
less.
But if contributory negligence is a basis for claiming
that a victim has reduced her rights against others’ wrongs,
then we have an altogether different category of rights-
reducing behavior than any explicitly carved out in
Professor Bergelson’s article: for contributory negligence
can neither be reduced (necessarily) to a kind of voluntary
rights reduction (a form of consent to, or assumption of the
risk of, a defendant’s wrongdoing), nor does it always
involve a violation of a duty to a defendant, such that it
counts as the kind of involuntary rights reduction that
Professor Bergelson has in mind when she elsewhere
repeatedly claims that involuntary rights reductions occur
only when victims violate duties to defendants. Professor
Bergelson thus has a choice to make: she can boldly defend
the claim that the criminal law ought to embrace
contributory negligence as a (partial) defense to criminal
liability, and add contributory negligence to her list of ways
in which a victim reduces her rights against others’ wrongs,
or she can purge her article of references that somewhat
confusingly suggest that she believes this to be true,
despite the failure of a contributory negligence defense to
cohere with the formally stated criteria upon which victims
can be thought to reduce their rights against wrongdoing.
And this is no small choice, because the thesis concerning
contributory negligence that best coheres with what she
says elsewhere in the paper is a thesis that is surely under-
inclusive of cases in which we would think victims to be
coauthors of their own harms.
Contributory negligence is traditionally unpacked as a
failure on the part of a plaintiff or victim to accord herself
19. Id.

due care. It is thought to consist of violations of duties to

self, rather than duties to others. Certainly many
contributorily negligent actions also risk harms to others,
but the force of the defense lies in a defendant’s ability to
morally motivate the claim that he ought not to have had to
care for the victim or plaintiff more than she cared for
herself. And it seems to me plausible to suppose to that
when a victim violates a duty to herself (as opposed to, or in
addition to, one she owes to others), she ought to bear the
costs of her violation, for those costs are of her own
authorship; and thus, in the criminal law context, a
defendant who is culpably involved in the victim’s injury
ought to have his penalty reduced in proportion to her
contributory fault. Thus, a victim who failed to strap her
seatbelt, or who herself drove drunk, or who neglected to
service the brakes of her vehicle, might plausibly be
thought a coauthor of the injury that ultimately ensues
from an accident with a drunk driver (assuming that her
negligence was causally relevant to the injuries sustained).
There are many things to be said, of course, about a
proposal to adopt the analogue in criminal law of the
defense of contributory negligence long recognized in tort
law. It might be argued that it would afford highly
culpable defendants “windfalls” when they have the good
fortune of victimizing someone careless about her own
safety, and so offend against notions of distributive justice.
It might be claimed that it would fail to punish defendants
in accordance with desert, because, far from the reverse,
the fact that the victim was or might be careless about her
own safety is grounds, indeed, for thinking the defendant
should have exercised an elevated standard of care so as to
mitigate the chances of harming a more-than-usually-
helpless victim. It might be thought that recognizing a
contributory negligence defense would fail to set the proper
incentives for defendants to avoid criminal activities,
because it would give them incentives to target, or to
indulge the belief that their activities would incidentally
affect harms only to, those who are contributorily negligent
in not protecting themselves. And such incentives would

not be offset by increased incentives of care on the part of

victims, because whether a would-be wrongdoer would be
punished in full or only in part for a harm done to one who
is herself negligent is far too remote a consequence to
meaningfully tip the balance in favor of due care on the
part of a would-be victim. And it might generate worries
about unseemly trial proceedings in which victims were
made every bit as much the objects of investigation, blame,
and humiliation as the defendants who participated in
their injuries, thus chilling motivations to report and
testify against wrongdoers.
But from Professor Bergelson’s vantage point, what
ought to be most troubling about the prospect of
recognizing a contributory negligence defense in criminal
law is that it fails to cohere with her conviction that
defendants ought to be relieved of (some or all) liability for
harms done to victims only when victims have voluntarily
released them from such liability (through consent or
assumption of risk), or reciprocally invaded their rights so
as to justify a resort to force in response. As she insists,
“rights are conditional,” and “[t]he inherent limitation on
the victim’s involuntary reduction of rights, therefore, is:
the offender’s liability may be mitigated by the conduct of
the victim only if the offender has the right that the victim
does not behave that way.”20
Now Professor Bergelson could hold tight to this claim
and argue for the recognition of a contributory negligence
defense only in cases in which the victim’s lack of due care
risked the defendant as much as herself—and so violated
his rights as much as it violated her own. Thus, in an
accident involving both a drunk defendant and a drunk
victim, the defendant could claim the defense of
contributory negligence because the victim’s drunkenness
posed an undue risk to him as well as to herself, and so
violated his rights in a manner contemplated by Professor
Bergelson’s thesis. But surely this limitation would make
Professor Bergelson’s thesis under-inclusive, for it would
20. Id. at 474.

exclude all cases in which victims are most obviously the

authors of their own harms—cases in which their
negligence was self-directed.21 It would, for example,
preclude a defendant from raising contributory negligence
in the case of an auto accident in which the victim failed to
wear a seatbelt or failed to have her shattered windshield
repaired or permitted a knife to be attached to the steering
wheel aimed straight at her heart. It is when victims “ask
for” injuries by failing to take adequate care of themselves
that we get the strongest intuitions that the blame for their
injuries ought to be shared, rather than assigned solely to
defendants who have behaved no worse than the victims
themselves in failing to protect them from harm.
It would thus seem that if her general defense of
contributory responsibility is going to accommodate all
cases in which victims are coauthors of wrongs done to
them by others, Professor Bergelson is going to have to
make room for a defense of contributory negligence in cases
in which victims have violated duties to themselves, but
not duties to defendants. But if she embraces such an
expansion of her thesis, she is not out of the woods. For
fears of over-inclusivity should again arise. What of the
driver whose sole failure was in not appreciating the
prospect of the defendant’s wrongdoing—a driver who
advanced on a green light without taking seriously the
possibility that the defendant was going to run a red light
and careen into her? Is she to be thought contributorily
negligent? Or what of the homeowner who left her doors
unlocked and lost her valuables to a thief? Is she to be
21. Were Professor Bergelson to embrace this suggestion, I would have

considerable complaints with it beyond its under-inclusivity. For it would be to
embrace the claim that risks to others are, by themselves, wrongs, and that
individuals can have rights against risks (rather than simply rights against
harms). I have killed far too many trees contesting these popular claims, and am
hopeful that they did not die in vain. See e.g., Heidi M. Hurd, The Deontology of
Negligence, 76 B.U. L. Rev. 249 (1996); Heidi M. Hurd, Nonreciprocal Risk
Imposition, Unjust Enrichment, and the Foundations of Tort Law: A Critical
Celebration of George Fletcher’s Theory of Tort Law, 78 Notre Dame L. Rev. 711
(2003); Heidi M. Hurd, What in the World Is Wrong?, 5 J. Contemp. Legal Issues
157, 193-208 (1994).

thought a culpable contributor to her own harm? If the

failure to anticipate the wrongdoing of would-be defendants
is itself a basis for ascribing a failure of due care to victims,
then recognition of a contributory negligence defense will
return us to the claim that the jogger who was mugged in
Central Park at dusk, the provocatively dressed woman
who was raped after a night in a rough bar, and the car
owner whose car was stolen with the keys she left in the
ignition were complicit in their own injuries.
I have elsewhere devoted a fairly lengthy analysis to
the question of whether it is wrong (contributorily
negligent) to fail to anticipate and mitigate wrongdoing
(intentional, reckless, or negligent) on the part of others.22
As I outlined in that work, American tort law certainly
holds us liable for preventable wrongs perpetrated by
others in far more circumstances than one might initially
think. On pain of comparative negligence liability, it forces
us both literally and metaphorically to “drive defensively”
so as to protect ourselves from others’ anticipated
wrongdoing. It calls on us to protect culpable aggressors at
a cost to ourselves, by, for example, refusing us the ability
to defend ourselves and our property when the only means
of defense would involve force disproportionate to that
threatened by the assailant. And it compels us to avert
injuries to third parties when we can anticipate that our
otherwise legitimate activities would provide opportunities
for intervening actors to commit wrongs to those others, as,
for example, when we would want to leave our keys in our
car’s ignition, or hold a party to which someone might come
who drinks and then drives, or leave our house unlocked
when it houses guns or other potentially dangerous
materials that could be used to harm others if stolen by
thieves.
The best account of tort law’s willingness to construe
actors as negligent when their only failing is to have
assumed the best of others, rather than the worst, is that
22. Heidi M. Hurd, Is It Wrong to Do Right When Others Do Wrong?: A

Critique of American Tort Law, 7 Legal Theory 307 (2001).

tort law rests on patently utilitarian presuppositions. It

presumes that the cheapest cost avoider ought to be
induced to take precautions against an accident, and when
the cheapest cost avoider is a victim who can anticipate
and avert otherwise inevitable wrongdoing by a defendant,
that victim ought be forced to take precautions against the
defendant’s wrongdoing, on pain of being forced to share
the liability for his harm if she does not. Whatever the
merits of a utilitarian theory of tort law, there are very
compelling reasons to think that the doctrines of the
criminal law are not best explained by such a theory. And
certainly Professor Bergelson references several times her
allegiance to the view that “the fundamental principle of
criminal law is, and should be, ‘just desert.’”23 “Otherwise,
the state would be justified in punishing an innocent as
long as that brings about a net social gain.”24 She thus
cannot articulate a theory of contributory negligence that
countenances the possibility that victims could
involuntarily reduce their rights against others’ wrongs
simply by failing to anticipate and avert those wrongs.
The challenge, then, is to articulate a conception of
negligence that does not equate it with cost-inefficient
conduct, as it was famously analyzed by Judge Learned
Hand in United States v. Carroll Towing.25 Professor
Bergelson must construct a conception of contributory
negligence that accords persons “a right to do right when
others do wrong”—namely, a right to exercise their rights
despite the forseeability that so doing will afford
wrongdoers greater opportunities for wrongdoing. For only
by so doing will she be able to craft a general defense of
contributory responsibility that properly relieves
defendants from liability for injuries authored by their
victims, while ensuring that we do not try every victim
23. Bergelson, supra note 1, at 420.

24. Id.
25. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (“[I]f
the probability be called P; the injury, L; and the burden [of precautions required
to avert the injury], B; liability depends upon whether B is less than L multiplied
by P: i.e., whether B [is] less than PL.”).

together with every defendant for the wrongs that have

been done to them.
Of course, crafting a rights-based theory of negligence
in opposition to the theory that has been made dominant in
tort law by the law and economics movement is no small
feat. But I have considerable faith in Professor Bergelson’s
ability to tackle this challenge in the same way that she
has tackled the thorny challenges with which she so
adeptly engages in “Victims and Perpetrators: An
Argument for Comparative Liability in Criminal Law.”
“Victims and Perpetrators” is an exercise in persuasion
that succeeds precisely because of its analytic rigor and
intellectual integrity. And at its core is an irresistible
moral conviction: that persons ought to bear responsibility
as much for their own harms as for the harms they do
others. I have little doubt that if Professor Bergelson
extends the project initiated in this article to future work,
she will succeed in articulating a comprehensive, very
powerful theory that persuasively defines how blame ought
to be allocated for harms coauthored by offenders and their
victims.


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Blaming the Victim: A Response to the Proposal That Criminal Law Recognize a General

Defense of Contributory Responsibility

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Blaming the Victim: A Response to the

There is, perhaps, little that instills greater

† Dean and David C. Baum Professor of Law and Philosophy, Co-Director of

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504 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

defendant is prosecuted really be justified? And how might

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2005] BLAMING THE VICTIM 505

piercings) and forms of torture (sadomasochism in the

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506 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

the benefit of a penalty reduction when their provoked rage

3. Model Penal Code § 210.3(1)(b) (Official Draft and Revised Comments

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2005] BLAMING THE VICTIM 507

condition for punishment, in addition to a necessary one.

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508 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

defend against liability by invoking comparative

[C]riminal liability of the perpetrator should be reduced to

There is much to admire about the lengthy analysis

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2005] BLAMING THE VICTIM 509

morally counterintuitive, and it would result in failing to

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510 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

essentially the same as for consent in general.”11 If true,

11. Bergelson, supra note 1, at 470.

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2005] BLAMING THE VICTIM 511

One possibility is to place emphasis on Professor

13. Id. at 470.

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512 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

consent to function as a defense, the plaintiff had to have

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2005] BLAMING THE VICTIM 513

an invitation to lost hikers to take shelter has negated the

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514 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

conduct that is wrongful because it is likely to result in a

16. Bergelson, supra note 1, at 474; see also id. at 486.

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2005] BLAMING THE VICTIM 515

Central Park, and the provocatively dressed woman in the

When the perpetrator and the victim are equally culpable

As this suggests, Professor Bergelson clearly contemplates

17. Id. at 474.

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516 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

incompetent and the perpetrator was aware of that.”19

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2005] BLAMING THE VICTIM 517

due care. It is thought to consist of violations of duties to

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518 BUFFALO CRIMINAL LAW REVIEW [Vol. 8:503

not be offset by increased incentives of care on the part of

20. Id. at 474.

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2005] BLAMING THE VICTIM 519