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

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,” 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