Posted 1:10 PM by Robert

Blame The Victim - But Send The Criminal To Jail

Most informed people know that leaving keys in an unattended motor vehicle is a crime in many localities, including the entire State of Texas, just by way of example. Why? Because nearly 20% of all vehicles stolen have the keys in them - and the driver of a vehicle stolen with keys left in it quite obviously should bear some responsibility in the crime committed against the driver. But it doesn't take a criminal law to make this point. Failure to lock one's car is not, to my knowledge, a crime anywhere. But it is very important to lock your car because, among other things, approximately 50% of all vehicles stolen were left unlocked.

The law's affixing blame for a crime on a victim is common and proper, even with respect to the most heinous crimes imaginable. A parent who leaves a baby unattended on a New York sidewalk would quite properly spend considerable time in prison in the event of a murder of the baby by a passing psychopath, even though the parent (in addition to the baby) is also very much a victim of the criminal act. The fact that a voluntary, psychopathic action by a passer-by killed the baby instead of, say, accidental crushing by a passing bicycle messenger, is not particularly material - the parent obviously helped to cause the death of that baby and such a parent should be held criminally liable.

Some victims quite obviously should bear some responsibility in some crimes committed against the victim. The crimes for which a victim is held criminally liable for the criminal act are generally crimes which could have been avoided if that victim had taken some obvious precaution (although the victim is not deemed culpable in all such crimes).

But there are many other cases in which a victim is held civilly liable for the damages caused by a crime against the victim. For example, if two people each own a half-interest in a car which is stolen on account of one owner's negligence (such as leaving those keys in the car), the negligent driver would ordinarily be liable to the non-negligent co-owner for half the loss. That the loss was caused by a third party's crime wouldn't make any difference.

And there is an even larger class of crimes for which the victim is not potentially criminally or civilly liable to anyone else, but nevertheless obviously bear some responsibility in the crime. Again, by way of example only, someone who leaves his front door unlocked in a crime-ridden neighborhood obviously bears some responsibility for the burglary of the house. In some cases, the owner may be criminally liable - if the house contained a gun which was stolen in the burglary, for example. In some cases, the owner may be civilly liable - if the house contained a valuable, borrowed painting which was stolen in the burglary, for example. And the owner's insurer may hold the victim/owner accountable by refusing to pay. But, in most cases, the owner will simply be considered to be careless or an idiot by many people who will deem the owner to bear some responsibility - and who, thereafter, will take practical measures such as declining to lend valuable paintings to the owner.

Assigning responsibility for a crime is not a zero-sum game. A car thief, child murderer or burglar is not made any less responsible for the car theft, infanticide or break-in because a victim should bear some responsibility in the crime. It's not just obvious - in many cases it's the law.

Yet, despite the many case in which a victim is often considered to bear some responsibility in the crime committed against him or her, Robin Wallace writing for Fox News nevertheless leads off with this preposterous assertion:

Rape is different from other crimes. Though society as a whole has made tremendous progress in understanding the crime of rape, the pathology of rapists and the unique trauma of rape victims, many people still cling to ignorant notions about rape, and many victims are still forced to suffer enormous shame and blame. Rape is still the only crime where the victim is often considered to bear some responsibility in the crime committed against her.

The assertion is bizarre enough on its face, but what is even more peculiar is the litany of example Ms. Wallace produces to support her claim. They are copied in italics below, with my comments in bracketed text thereafter:

When a convenience store is the target of a stick-up, the robber doesn’t get a pass because the store is open in the middle of the night, located in a bad neighborhood, is known to have a certain amount of cash on hand, or is tempting thieves by having its goods displayed in the window. [True, but confused. Whether the store is considered to bear some responsibility in the crime committed against it is not the same thing as saying that the robber "gets a pass." A convenience store which is the target of a stick-up will often be held civilly liable to its injured employees (or their survivors) if the store did not structure its security measures to take into account that the store is open in the middle of the night, located in a bad neighborhood, is known to have a certain amount of cash on hand, or is tempting thieves by having its goods displayed in the window. If the risk to the employees is bad enough, the store may even be criminally liable for exposing them to the danger.]

When a home is burglarized, the owner’s history of leaving his doors unlocked, or failure to have an alarm, or choice to live in an expensive neighborhood that flaunts the wealth inside, does not figure into the defense. [It's the same confusion on Ms. Wallace's part. Those aspects do not figure into the defense - but the owner may nevertheless be considered to bear some responsibility in the crime in many ways, as noted above.]

When a tourist is mugged, the defense doesn’t usually argue that the victim asked for it by visiting a city he was unfamiliar with, or carrying her pocketbook in plain sight, or getting off the subway at the wrong stop. [More of the same. If the tourist was carrying a borrowed or partially-owned diamond (a common occurrence in the diamond business) which the robber takes, that tourist better be prepared to write some big checks, not to be reimbursed by insurance and to be turned down the next time he asks to borrow a diamond.]

Ms. Wallace's approach - which is a common one - not only confuses the issue of possible partial responsibility of a victim with the exoneration of the criminal, but completely ignores the main way in which rape is different from many other crimes: all sexual contact is rape unless there is consent.

That means that every, single rape case in which sexual contact is admitted comes down to exactly one issue: was there consent?

It's not rocket science. Rape is a crime, so if the defense can raise a reasonable doubt that consent was given, the crime is not sufficiently "proved." How does one show consent - or raise a question that it was given?

Since the issue is whether rape victims are being treated "differently" let's first consider the issue of "consent" in other criminal contexts. For example, physically knocking someone to the ground and piling on is a crime - unless there was consent. How would someone charged with assault and battery for tackling someone else in a pick-up tackle football game in a park prove that the injured party has "consented" to be injured? There is not likely to be a written consent. One would probably first look to the venue: the injured party went to the park, where it is common knowledge that tackle football takes place. What if the injured party says he thought the game was actually "tag" football and told the defendant that was his belief, which the defendant denies? Well, showing that the injured party had often or sometimes participated in tackle football games in similar circumstances would be one natural way to go about it - in other words, the matter would likely center around evidence of the injured party's personal history. The defendant's past personaly history would also be relevant. And the focus on such evidence wouldn't change a bit just because it is perfectly possible that the injured party may have consented to be tackled any number of other times by any number of other people and still not consented to be tackled this time.

Obviously it is much more painful to have one's past sexual history explored than to have explored one's history of past participation in pick-up football. In that sense rape is different.

But proving or disproving "consent" often involves exploration of the parties' prior course of dealing, with each other or with other people in similar situations. That's never going to end - and it shouldn't.

And, quite independently of the possible criminal liability of Mr. Bryant, the public has an interest in whether his accuser/victim should be considered to bear some responsibility in the crime committed against her in the way the public have an interest in whether a home owner who is the victim of a burglary should be considered to bear some responsibility in the crime committed because of the owner’s history of leaving his doors unlocked, or failure to have an alarm, or choice to live in an expensive neighborhood that flaunts the wealth inside - and not taking appropriate measures to address those risks. But just as homeowners who leave their doors open in crime-free neighborhoods are not generally negligent, the public is interested in questions such as: should the victim/accuser have known and acted as if there were a rape risk in going to Mr. Bryant's room? That must be very painful for the victim/accuser.