A theory of criminal victimization.
This Article sets forth the concept of "victimization"--the idea that the moral status of a wrongful act turns in part on the degree to which the wrong's victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence. It shows the concept to be implicit in both the doctrine and practice of criminal law. And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.
A concluding section reflects methodologically on this Article's approach to moral philosophy in lawman approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.
INTRODUCTION: THE CONCEPT OF VICTIMIZATION IN CRIMINAL LAW I. THE CONCEPT ITSELF A. Describing the Intuition B. Some Familiar Explanations That Don't Work C. A Moral Relationship D. Vulnerability and Beneficence, Innocence and Justice II. THE CONCEPT AT WORK A. Legal Doctrine 1. Naming the concept in doctrine 2. Children, the elderly, and the disabled a. In general b. Child sex 3. Combatants and adulterers B. Social Practice 1. Police a. Qualitative evidence b. Quantitative evidence 2. Capital juries a. Qualitative evidence b. Quantitative evidence III. THE CONCEPT CRITIQUED A. The Case for Victimization B. The Objection from Equality and the Victorian Compromise C. Prisoners, Prostitutes, and Moral Luck D. Self-Awareness Serves Justice CONCLUSION: CRIMINAL LAW'S IMMANENT MORAL CONTENT
INTRODUCTION: THE CONCEPT OF VICTIMIZATION IN CRIMINAL LAW
This Article is about a concept at work in moral culture and criminal law that has not yet been given a name, and so it helps to start with examples. There's a character in The Wire named Omar Little who is a sort of raider: he robs drug dealers and only drug dealers, and though an aggressive, shotgun-wielding professional criminal, he is nonetheless and however ambiguously a hero in the broken social landscape the show gives us. In a climactic exchange, denounced in the courtroom because of the violent nature of his work, Omar delivers his apologia ("not an apology in our sense of the term ... but a defense" (1)). He says: "I ain't never put my gun on no citizen." (2) What I would like to understand in this Article is: why does that response make sense? And in particular, that strange yet somehow also obvious use of the word "citizen" for "noncriminal"--why do viewers understand what that term means without ever being told? The scene is effective; what is the moral logic of that effect?
Consider now a real case: in Ohio in 1997, Raymond Tibbetts killed his wife and the elderly, invalid man for whom she was a live-in nurse. (3) Both murders were unprovoked and unmitigated; both involved a ferocity of violence--stabbing and beating and the like--that cannot fail to shock and disturb; and both were submitted to the jury for the death penalty. But the jury sentenced Tibbets to death only for killing the old man, not his wife. (4) Why? The jury effectively declared that what he did to his wife was terrible, but what he did to the old man, still worse. That judgment made moral sense to the jury, and one can feel the pull of their view. But what is the view exactly? Why not think the opposite--that it is worse to harm those close to you than strangers? When judges used to give capital sentences, one would see the same pattern. In Arizona in 1986, Milo Stanley shot his wife three times in the head over a trifle, then placed the muzzle of the gun downwards against the top of the head of their five-year-old daughter and pulled the trigger. (5) The judge gave him a life sentence for killing his wife and death for killing his daughter. (6) Those accustomed to capital cases will not be surprised at these verdicts; they are familiar in type. But why do judges and juries feel this way?
Turning now to criminal theory, there is a prominent view under which, given an otherwise fixed actus reus and mens rea, the victim's characteristics should have no bearing on how wrong a crime is or what punishment it merits. A murder is a murder, whether the victim is the most vile predator or the most innocent child; the norm against killing having been violated, the punishment--the very same punishment--must follow. Our commitment to the equality of persons, the thought goes, requires upholding norms in this sort of formal, neutral way, in which the particularities of the agents on either side of the norm don't matter. And the thought is also that, since most crimes are defined by the offender's act and state of mind--his or her culpable transgression of a "Thou shalt not"--victims' characteristics are just irrelevant: if an intentional killing is a murder, it is so regardless of whether the victim is tall or short, male or female, black or white. Thus, as George Fletcher has remarked with respect to the theory of retributive justice: "You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment." (7) And thus Moore can respond: "I think victims should and must be ignored if you are claiming to be doing retributive theory." (8) Of course, Moore added, victims are naturally taken up in the criminal norms themselves: there can't be a murder unless someone is killed. (9) But he saw no role for them beyond that. That is, he saw no role for them, given a fixed crime, in answering Henry Hart's famous question (which might be criminal theory's cardinal question): "what are the ingredients of moral blameworthiness which warrant a judgment of community condemnation?" (10) Moore's assumption--the assumption that victim characteristics don't figure in the calculus of blame--is typical of the field: mainstream criminal thought has not traditionally looked upon the position of the victim as the sort of thing that needs a theory. What was distinctive about the Moore/Fletcher exchange was that Fletcher's challenge brought Moore's assumption, unmentioned throughout the eight hundred pages of his book, to the surface. Usually the assumption stays below the surface, implicit in a silence that extends from high theoretical work like Moore's to the black-letter doctrine of leading casebooks (11) and treatises (12) to the Model Penal Code (MPC). (13) And while, in the wake of the victims' rights movement, the silence has come increasingly to be noticed and remarked upon, (14) victims' new prominence has been expressed mainly in the context of criminal procedure, as with victim impact statements. The proposition that most mainstream work has not addressed--and in fact, like Moore, has implicitly rejected--is that victims might be "integrate[d] ... into the justification for punishment." (15) That is "[t]he interesting challenge." (16) As Cornelius Prittwitz has written, the fundamental idea of victimology and the theoretical center of the victims' rights movement is that one cannot "look only at the offender ... in order to understand criminal acts" but must instead view crime as "an interaction" between criminal and victim. (17) The dominant view in criminal law does not look at crime in that way, and indeed lacks the theoretical resources to look at crime in that way.
Yet surely the dominant view is partly true. A victim's race shouldn't matter if we are committed to equality, nor his social class, nor his religion. And some characteristics are indeed just irrelevant--whether a victim has blond hair or speaks with a stutter, or some such. But is the dominant view really wholly true, that is, true without exception? Is it really true that it shouldn't matter whether the victim is a child? That seems mistaken. And what if a state's criminal code says that a victim's characteristics matter in some way--that murdering a child, for example, is an aggravating factor that shifts ordinary intentional murder to some more serious category (as some do (18))? Are we then to think that no victim characteristic should matter, unless the code says it does, and then it should? That seems confused. In fact, most penal codes contain a variety of provisions--indeed, a vast array (19)--that build victim characteristics into either the definition of certain crimes (statutory rape, for example), their grading, or both. Those provisions would be incoherent if nothing about the victim could matter. Part of the office of criminal theory is to offer an account, a rationalization in the nonpejorative sense, of why our criminal law is the way it is. Criminal law does respond to victim characteristics in some instances. The dominant view seems incapable of explaining why.
Let's turn now from law to ordinary moral thought--by which I mean nothing grand or mysterious, but just those everyday intuitions of right and wrong, good and bad, sometimes reflective, sometimes not, that most people make simply in virtue of being evaluative creatures in an evaluative culture. Victims indubitably have a place here. We make a moral distinction between one gangster attacking another and a gangster attacking a bystander, though the assaults might be formally identical, or between selling drugs to an adult and selling them to a child, though the penal code might treat the two as the same (as a matter of fact, some don't (20)). We think there is something especially objectionable about financially defrauding the elderly. (21) We think there is some thing horrible, loathsome almost without peer, in raping young children. (22) These are comparative judgments: they in no way excuse or minimize the seriousness of ordinary assault, drug dealing, fraud, or certainly rape, but they find something still worse about those crimes where the victims are--like bystanders, the elderly, or children--particularly vulnerable or particularly innocent.
So, in short, the situation is this: there is a dominant theoretical model of criminal law that supposes the characteristics of a crime's victim to be irrelevant in determining how wrong the crime is or what punishment it merits, at least given two instances of an otherwise fixed criminal violation. But ordinary moral intuition does not concur, and it is not clear that actual criminal law can plausibly or even coherently be described along the lines the dominant theoretical view proposes. Something is out of joint here. Something--either criminal theory or ordinary moral intuition or criminal law itself--has to give.
This Article carves out a place in criminal theory for certain kinds of victim characteristics; it is a critique of the dominant theoretical view. The core of the argument is a concept I term "victimization"--the idea that the moral status of a wrongful act turns in part on the degree to which the wrong's victim is vulnerable or innocent, and the wrongdoer preys upon that vulnerability or innocence. (The concept extends, as we'll see, to victims on the opposite side of the spectrum as well: the nonvulnerable or noninnocent--the powerful or culpable.) My basic claim is that the concept of victimization is at work in both the doctrine and practice of criminal law; that is, the criminal system is drenched in concern for the vulnerability or innocence of victims. I also claim that, with important exceptions, this pattern in condemnation and punishment is a good thing. To the extent criminal theory has denied those claims, it has misdescribed the criminal law, or mistaken the moral situation, or both.
There are three parts to the argument. Part I clarifies the victimization concept itself--what it amounts to and what it is based on--by filling in the moral intuition with philosophical content. This is an exercise in descriptive moral philosophy; the interest is in "studying morality as a phenomenon or as a set of concepts, rather than in preaching." (23) As Emile Durkheim (a model for the mode of thought at work throughout this Article) puts it: "Moral reality, like all reality, can be studied from two different points of view. One can set out to explore and understand it and one can set out to evaluate it. The first of these problems, which is theoretical, must necessarily precede the second...." (24) Part I is about that anterior problem: the concept of victimization is not just a normative command but also a social fact with a socially given content. To describe that social fact philosophically is thus to clarify a feature of our culture--this is moral philosophy as the study of moral culture--and the signal of a good description will be less that the claim comes to seem attractive or binding as that certain resonant cultural patterns light up as the concept on which they're based comes into view. (Examples from popular culture are thus evidence, not color.) Now, admittedly, there's no purely descriptive way of going about moral philosophy. Even simply identifying a moral idea's conceptual foundations is justificatory insofar as those foundations prove to be minimally rational. But the chief aim in Part I is to understand rather than to endorse or oppose.
It is one thing to identify a moral concept and another to show the moral concept to be at work in the law. Part II takes up that latter goal. The claim here is that the concept of victimization is present in our law--that is, the concept is at work, though almost always implicitly, in the legal doctrine and social practices that make up the criminal system. Victimization is part of the criminal system's unstated normative logic; it runs through the law like a red thread. Again, this is a descriptive rather than a normative claim; we are still engaged with the first of Durkheim's two points of view. The issue is not whether we should approve of victimization thinking in criminal law--only that it is there.
Part III turns finally to the second half of Durkheim's equation: the normative questions. Should we want this concept in our moral lives and criminal law? If equality before the law means anything, it means that the wrongness of killing one person and killing another is the same--right? But then, is it really mistaken to think there is something morally distinctive about, say, killing a child, or tricking someone with Alzheimer's, or assaulting a blind man? My view is this: victimization is at base a moral insight and properly a component of criminal justice, but it is also peculiarly susceptible to distortion, to being misapplied in operation in ways that offend the basic commitments of a liberal and democratic criminal order. It thus has to be understood and managed rather than simply supported or opposed. Consider, by way of analogy, the principle of loyalty: it too is a deeply rooted and rationally grounded element of ordinary moral thought that is nonetheless dangerous and often misplaced or carried to excess in practice, and it too is something one does not sensibly oppose or endorse wholesale but rather chaperones, aware of what is best and worst in it. I view the concept of victimization with the same kind of qualified affirmation. My aim, then, is not simply to defend the concept, but also to make us more self-aware with respect to it. Self-awareness serves justice.
One final note will help forestall confusion. I don't claim that victimization is the only determinant of a crime's wrongness (that would be ridiculous), or even the only victim-based determinant of a crime's wrongness. We have special punishments for killing the president; those aren't based on vulnerability or innocence. We also have special punishments for those who harm the agents of the criminal system (police, prosecutors, judges, witnesses, and jurors); those aren't vulnerability- or innocence-based either. Grading the seriousness of offenses is a complicated and undertheorized business. (25) I take victimization to be one of the principles that give criminal justice its normative order, one among a number of moral and practical considerations that go toward answering Hart's great question. It comes into play whenever a crime puts vulnerability or innocence (or their opposites) particularly at stake.
The concept is thus quite specific, but it has, I submit, a general theoretical implication. When Prittwitz argues that we must learn to view crime as "an interaction" between criminal and victim, (26) he may be right, but he's not telling us how to do so. When Fletcher says that integrating victims "into the justification of punishment" is "the interesting challenge," (27) he is pointing to a question but not answering it. I don't think there is at present a fully adequate answer in the literature. Coming to terms with the concept of victimization is a theoretical key that can unlock that door.
I. THE CONCEPT ITSELF
A. Describing the Intuition
The first step in explaining the concept of victimization is to bring the intuition of victimization more clearly into view--for though the intuition is a familiar part of moral experience, it has not to my knowledge come in for philosophical examination before. (28) And it displays some odd dynamics.
First--a simple point--the intuition really does seem to respond to the vulnerability or innocence of victims. It's spurred when we turn our thoughts to harms or wrongs inflicted upon children, the elderly, the mentally or physically handicapped, or animals, among others. It's spurred when we think of able-bodied adults attacked while in a position of helplessness, as in a beating, and not spurred (though we might yet disapprove of the wrong) when we think of such people suffering merely in the course of combat or other conflict, as in a fair fight. (When, after all, does a fight become a beating? Could we even make sense of that distinction without something like the concept of victimization?) One of the functions of literature is to teach us to see the contours of moral life more clearly, and we've already witnessed the concept of victimization at work in The Wire. (29) In fact, victimization is a literary trope.
In a central scene in Victor Hugo's Les Miserables, Jean Valjean, after nineteen years in prison for a trifle, hardened and embittered until "[t]he beginning and the end of all his thought was hatred," has just encountered a saintly bishop, who does him a rare kindness and thus throws his soul into confusion. (30) He is in a state of bewildered distraction when "[a] boy of about ten ... one of those gay and harmless child vagrants" comes upon him, tossing coins into the air and catching them on the back of his hand, "singing as he came." (31) The boy drops one of the coins, which rolls over to Jean Valjean, who sets his foot on it. "'Monsieur,'" says the boy "with the childish trustfulness that is a mingling of innocence and ignorance, 'may I have my coin?'" (32) Valjean refuses. The boy pleads; Valjean ignores him. The boy starts to cry; Valjean reaches for his stick. The boy becomes angry; Valjean threatens him. Now the boy is frightened. He looks up at Valjean in "a moment of stupefaction" and then turns and runs away without a sound, until off in the distance, pausing for breath, the sounds of his sobbing drift back to Valjean's dazed, distracted ears. (33) It takes Valjean a few minutes to realize what he has done, but when he does, he calls after the boy, frantically searches for him, gives twenty times what he stole to a priest for the poor, tries to have himself arrested, and finally collapses, crying, calling out to the heavens, "Vile wretch that I am!" (34) And this is the experience that finally breaks his shell. He had, Hugo says, in robbing the boy finally committed an act he could not bear--"an act of which he was no longer capable. (35)
Now, this is an effective scene; it makes sense. But why? Why isn't the whole affair trivial? Valjean has done worse and had worse done to him. Indeed, the aesthetic energy of the scene turns exactly on a deed so minor implying a moral devastation so great. If one were to try to explain the moral devastation, surely that explanation would have to turn on the victim being a child; the scene would not work if he were a grown man (unless perhaps he were blind, or mentally retarded, and then it would--which itself is telling). And if one were then to explain what makes the victim's childhood important, surely that further explanation would turn on his innocence and vulnerability. Those are the terms in which Hugo sells the scene; he goes to great pains to emphasize the boy's innocent trust and harmless goodwill. And that "moment of stupefaction"--what is it for, as a literary matter, if not to signal a moment at which something significant has happened? Something significant did happen. That was the moment at which Valjean took the child's innocence away.
Second, vulnerability and innocence are disjunctive. Hugo's child vagrant was both vulnerable and innocent--children usually are--but to have both together is not necessary for the victimization intuition to take hold. The elderly and physically handicapped are typically just vulnerable, not innocent (although senility might change that). If two men get in a fight at a bar, one loses consciousness, and the other continues beating him, the victim is also just vulnerable, not innocent. By contrast, a fierce animal in an unarmed physical confrontation is innocent but not vulnerable. The same animal under the control of a person may be both vulnerable and innocent, though not necessarily to the same degree. (As Senator Robert Byrd said during the Michael Vick dog-fighting scandal: "The depravity of dogfighting ... involves training innocent, innocent, innocent, vulnerable creatures to kill...." (36)) The two pieces of the intuition can be coupled or decoupled, and the intuition may still take hold.
Indeed, innocence is internally disjunctive: it has an interior complexity that vulnerability does not. We'll need some distinctions to puzzle through it. The first distinction is between situational and general innocence. Situational innocence is the state of being blameless with respect to the particular situation in which one is subjected to a wrong--the ordinary adult killed by a stranger while strolling down the street, as opposed to the bank robber killed by his accomplice for an extra share of the loot. We have a term in our culture for these situationally innocent victims: "innocent bystanders." (Omar's term for them was--tellingly, wonderfully--"citizens," (37) but the usual term has its own advantages, for it is a fixture in our language that would not even be intelligible without the concept of victimization.) General innocence, by contrast, is about moral purity, about being an innocent rather than innocent of something, as with animals and young children, who, lacking full agency, are free of both moral guilt and moral stain. (Logically, general innocence could include a mature, agential moral perfection as well, like a saint. The case rarely arises. But the crucifixion story is an account of a morally perfect victim.)
The second distinction internal to innocence is between innocence based on culpability and innocence based on risk-taking. Culpability innocence is a matter of wrongdoing: one has it in virtue of being upright and loses it in virtue of misdeeds. Risk-taking innocence is a matter of responsibility: one has it in virtue of prudence and loses it in virtue of recklessness or assumption of risk. It makes a difference to us, for example, whether the person killed in an accident was engaged in extreme sports or was merely unlucky in the course of ordinary life, and we care as well whether the person harmed in combat was a soldier who volunteered for the job or a conscript who didn't. The common thread in all these distinctions internal to innocence is blamelessness, but blame is a capacious concept in our moral culture, and it pulls different kinds of phenomena under the innocence heading. Thus innocence has internally disjunctive pieces that can take hold individually, be variously assembled together, or be variously coupled with vulnerability. (38)
Third, the victimization intuition is symmetrical--that is, it not only extends an extra measure of concern to wrongs visited upon the vulnerable or innocent, but also withdraws a measure of concern from wrongs visited upon the nonvulnerable or noninnocent--the powerful, risk-taking, or culpable. (39) We are less saddened to hear that a rapist was killed by his victim than to hear that his victim was killed by him. That is not to say we think it good, upon reflection, that the rapist was killed--rape is not a capital crime--but where the judgment is comparative, where there is a quantum of badness that must fall somewhere and the only question is on whom it will fall, we prefer that it fall on a wrongdoer. Again, literature has picked up on this pattern of thought: the figure of the culpable victim is a tremendous fund of dramatic tension. Law & Order: Special Victims Unit, for example, started its immensely successful run with an episode about two rape victims who kill their rapist; the show's energy comes from the officers' dilemma over whether to enforce the norm against killing even in that case (they sort of do and sort of don't). (40) It's a popular motif.
Fourth, the victimization intuition comes in degrees; it's a spectrum, more-or-less phenomenon, not an either/or. Attacking a child is an extreme case; attacking a physically handicapped bystander is a little less extreme; and attacking an ordinary bystander, a little less still. This makes good sense because the components of the victimization intuition--vulnerability or innocence on the one hand, power or culpability on the other--vary by degree. Not all wrongdoing is like this. If a person is killed, his right to life either was invaded or it wasn't, and by and large, the killing either was criminal or wasn't; it typically doesn't make sense to say a murder victim's right to life was "a little" violated. Even for wrongs or crimes that can vary by degree in a sense--theft, say, where the property taken can be more or less valuable--they do not vary by degree in the same sense that victimization does. An act is equally theft whether the thing taken is a hundred-dollar bicycle or a thousand-dollar watch, but the act is not equally victimizing whether the victim is a gangster or a bystander or a child. I like to think of victimization as being like the volume knob on a stereo: in some wrongful acts the volume on the victimization knob is turned up to the max; in others it's turned down low.
Fifth, note how the last few points work in combination. Because the intuition is symmetrical, it can take hold in any case in which a victim is notably vulnerable or innocent on the one hand, or nonvulnerable or noninnocent on the other. Because the intuition is disjunctive, those two pairs represent at least four possibilities--the victim can be notably vulnerable, innocent, nonvulnerable, or noninnocent. (41) And because the intuition is analog, it can take hold to a small degree even in cases where "notably" doesn't mean very much, where the victim is only a little vulnerable or innocent or a little powerful, culpable, or risk-taking. These three points together expand vastly the range of cases to which the intuition applies. Previously it might have seemed that the intuition is reserved for extraordinary cases, like crimes upon children. But given the logic of the above, it should take hold also where the victim is just a little responsible for bringing the crime about (or the opposite), or a little more vulnerable than average (or the opposite). And indeed, the intuition does take hold in such cases. After the attack on the "Central Park Jogger," it was not uncommon to hear people point out that she was, after all, running through Central Park at night--pointing it out apologetically, perhaps, for fear of appearing to excuse the crime, but withdrawing a little sympathy for a little risk-taking (not even culpability!) nonetheless. (42) It was not uncommon in the last financial crisis to hear a little extra sympathy going to those who were encouraged to make bad investments while lacking the financial education to understand the risks, and a little less sympathy to the big institutional players and wealthy individuals who were similarly misadvised or ripped off. In other words, the victimization intuition is not just reserved for extreme situations but is at work all the time, as if there were a hypothetical median victim to whom every other victim is compared and found to be either more or less vulnerable, innocent, powerful, risk-taking, or culpable. As I see it, the intuition is most interestingly and importantly at work where the situation is extreme--with child victims and gangster victims and so on--but it is not only at work in such cases. It is a general and basic feature of moral life, a regular part of the way in which we go about making judgments of blame and wrong.
As the examples of victimization multiply, one has the sense of the concept working itself through in the social world, opening up logical spaces like slots into which cultural content can flow. There is a slot for the child (vulnerability with general innocence) and another for the innocent bystander (vulnerability with situational innocence); there is a slot for the warrior or hero (situational assumption of risk without culpability or vulnerability) and another for the villain (general culpability and risk-taking without vulnerability); there is a slot for the daredevil (situational recklessness without culpability or vulnerability) and another for the fool (situational recklessness and vulnerability without culpability). For every conceptual possibility victimization carves out, the culture, to the extent it has need for it, generates an archetype. The concept is realized in social life. (43)
Two final caveats. First, this intuition, being essentially a feature of social life, won't resonate equally with every individual. Some people may not feel it; many won't feel it in all respects. But the chief issue is not whether it is present in our feelings but whether it is present in our culture. Second, the intuition, being merely an intuition, may have fuzzy edges not because of a failure to see it clearly but because, as an intuition, it lacks the propositional content to answer all reasonable questions that might be asked of it. That is as it should be. The hard questions have to await a conceptualization of the intuition. Indeed, the process of conceptualization is partly one of trying to find good answers to those questions.
B. Some Familiar Explanations That Don't Work
We turn now from bringing the intuition into view to explaining it--which is surprisingly difficult. It resists many familiar modes of moral explanation.
First, the concern for victimization cannot be explained on the basis of rights. What makes the concept such an astonishing feature of the moral universe is precisely that a person can, in two instances, invade the very same right with the very same intention and yet, in one of those instances, be worse or more blameworthy than in the other. In the language of criminal law, the same actus reus with the same mens rea can be wrong to different degrees based on a characteristic of the victim. That should impress us as a deep puzzle. On some views, a wrong just is the invasion of a right. Some forms of deontology, for example, in picturing human beings essentially as rightsholders, understand wrongdoing essentially as rights-invasion. Victimization on such a view is almost impossible to make sense of.
Could one fit victimization into a rights framework by postulating, say, a "right not to have one's purity (general innocence) taken away," or a "right not to be harmed where blameless (situationally innocent) in occasioning the harm," or a "right not to have one's vulnerabilities exploited," or something else of that sort? The problem is that these postulated rights don't explain victimization: they just recast the concept in other language. Furthermore, these claims of right are implausible on their own account: a young and vigorous adult has a right not to be beaten up just as surely as an old and frail one; whatever significance youth and vigor might have, they do not impair the right to physical security. And finally, even forced, implausible claims of right may not be able to capture the victimization concept in full--for what claim of right could explain reducing the protection afforded risk-takers and wrongdoers? In the end, if we accept that the concept of victimization is minimally rational, we must also accept that two equally purposeful invasions of the same right might not have the same moral status, or even be quite the same moral phenomenon. To steal from a blind person and from a sighted person is not the same thing, though in both cases the right invaded is the right of property. This is also to say, of course, that the framework of rights cannot give a complete picture of moral life.
Second, victimization cannot be explained on the basis of norm violation, at least insofar as norms are thought of (rather thinly) as commands or rules--another common deontological focal point and the main issue in retributivist accounts like Moore's. (44) The problem is just what we saw a moment ago with respect to rights. If on the one hand we define norms in general terms that make no reference to victim characteristics--"intentionally taking another's property is wrong," for example--then victimization is impossible: two violations of the same norm cannot imply two different degrees of wrongdoing if wrongdoing just is norm violation. If, on the other hand, we define norms so as to include reference to victim characteristics--"intentionally taking another's property is wrong, and intentionally taking a blind person's property is even more wrong," for example--we simply beg the question of why victim characteristics matter, and thus explain nothing.
Third, victimization cannot adequately be explained by reference to harm or suffering--the focus of concern among many consequentialists and particularly utilitarians (45)--although the issues here are closer (hence the caveat). The blind person who has her wallet stolen does not necessarily or even probably suffer more, and is not necessarily or even probably harmed more, than the sighted person who has her wallet stolen. The child who is beaten up won't feel more pain than the adult who is beaten up, and might heal better both physically and emotionally. The gangster killed in a gunfight suffers no less than the bystander killed in the crossfire. Indeed, there can be considerable suffering and harm with very little victimization (as when Omar assaults a drug dealer) and considerable victimization with very little suffering and harm (as with Jean Valjean and the vagrant boy). The two categories of victimization and harm (or suffering) can thus become almost totally detached from one another.
What makes the "adequately" caveat necessary is that the two categories do line up in some cases. A raped child is typically more harmed than a raped adult, harmed though the adult may be; (46) an elderly adult is predictably more harmed by an otherwise equal physical assault than an ordinary adult. Can we just use the familiar concept of harm in these cases, then, and do away with the foreign concept of victimization? The problem is, if one asks why a raped child is more harmed than a raped adult, it seems almost impossible to answer without reference of some kind to the premature invasion of the child's sexuality--which just is a form of innocence. Likewise, if we try to explain why an elderly assault victim is more harmed than an ordinary adult assault victim, we'd have to say something about the physical brittleness of the elderly--that is, about a feature of their vulnerability. In other words, in the subset of victimization cases in which victimization and harm are correlated, vulnerability and innocence are actually doing the explanatory work; they are the independent variables and harm the dependent one. Or perhaps the way to think about it is that the greater harm does indeed account for the greater wrongfulness, but the greater vulnerability and innocence accounts for the greater harm--which is to say, we need to build vulnerability and innocence into our understanding of harm itself. In the messy way that moral concepts are lived, it isn't surprising--and it isn't a rebuttal--to find this sort of overlap.
Fourth, victimization cannot adequately be explained (again a caveat is necessary) on the basis of social cost or deterrence--also common modes of explanation among consequentialists and particularly utilitarians. (47) The problem with explaining victimization in terms of social cost is parallel to the problem of explaining it in terms of suffering or harm (that is, individual cost). First, social cost and victimization can move independently and even in opposing directions: the murder of an elderly person past her productive working years, for example, would ordinarily be thought to involve less social cost than the murder of a middle-aged person with many productive years left--so tort law views them--but the one involves a high degree of victimization and the other, all else equal, a lower one. And second, where social cost and victimization do move together, the explanation for that judgment turns on victimization's two components, vulnerability and innocence, not the other way around. If, for example, we regard the death of the rapist as less costly as a social matter than the death of his victim, the explanation turns on the diminishment of the rapist's social value on account of his wrong or, in other words, on his culpability.
Deterrence at first glance presents a greater challenge. It can explain concern for victims' vulnerability insofar as an extra measure of punishment may be necessary to deter wrongdoing against those who cannot deter it of their own power. And it can explain concern for victims' innocence insofar as a lesser measure of punishment for those who harm wrongdoers and risk-takers may discourage people from becoming wrongdoers and risk-takers in the first place. I'm not sure if the overlap here is partial or total, but even if total, I don't think it undermines the need to give an explanation of victimization in the terms in which it is experienced: noninstrumental terms of blame and wrong, desert and virtue. There's nothing new about moral instrumentalists and noninstrumentalists explaining the same phenomenon in different ways (and wrestling over whose explanation is better). In fact, the lesson of this overlap is not that the concept of victimization can be done away with, but that the concept has legs. It turns out that deterrence theorists and perhaps other criminal punishment instrumentalists, who have not to my knowledge taken an interest in victims' vulnerability or innocence before, have reason to do so. That the concept speaks to them as well as to those who think of criminal punishment in more natively moral terms (retributivists, virtue theorists, and expressivists, among others) is all to the good.
Finally, victimization cannot adequately be explained on the basis of sympathy or empathy, that is, on the basis of sentiment--the typical focal point in scholarly work that, lacking the concept of victimization, nonetheless brushes up against victimization thinking. (48) I say "adequately" because there is no question that predation upon the vulnerable or innocent elicits passionate feelings of sympathy and empathy for the victim and anger or hatred toward the wrongdoer. One could even imagine a good evolutionary case for why we would feel these passions, centering on our reproductive interest in the safety of children. But even if true, that sort of psychological explanation is not a substitute for philosophical or normative explanation of the kind this Article attempts. We want different things from psychological and normative explanation. The one is a matter of motivation; the other is a matter of testing whether our motivations are based on or linked to ideas that we can reflectively endorse. It is not enough to know that the invasion of the bodies of children, sexually or otherwise, fills us with horror and disgust, or even that it fills us with horror and disgust because we have an evolutionary interest in the well-being of children, because we want the rationale for that horror and disgust; we want to know whether and how it is justified. Furthermore, if the two forms of explanation are too independent for the one to take the other's place, they are also too interdependent--for our emotions are themselves evaluative in character, subject to correction where those evaluations go awry. (49) We would not want a moral or criminal system that excused the beautiful and condemned the ugly. We want our normative systems to act on principle, and sympathy and empathy alone, taken purely as facts about our passions rather than as elements in moral reason, are too standardless to serve that purpose. Part of the point of philosophical inquiry into moral life is to fashion our passions into sound moral guides.
But if we do not chalk victimization up to passion and sentiment, what is left to explain it? We have just rejected many of the classic modes of moral explanation--explanation in terms of rights or norms or in terms of individual or social suffering, harm, or cost. It may be tempting at this point to think that the concern for victimization cannot be accounted for rationally, but I think that's a mistake. Moral life is subtler than moral theory. When the two are out of joint, we should not be too quick to think it is moral life that has gone wrong.
C. A Moral Relationship
There are different ways of thinking about wrongdoing--that is, not just different views as to what should count as wrong, but different views as to what wrongdoing itself is. I'd like to focus here on a contrast between thinking of wrongdoing as conduct that violates a norm and thinking of it as conduct that violates another person. (50) Eve's eating the forbidden fruit is a paradigm of the first, "norm violation" category: the reason her action was wrong was that it violated God's law (indeed, no other human person was in view). Cain killing Abel is a paradigm of the second, "violation of others" category: the reason Cain's wrong was wrong had to do with a claim arising out of Abel (out of Abel's personhood, one might say). The norm violation model is the default in criminal law, (51) but to make sense of victimization--and from victimization, to make sense of the interactive approach to crime in general--we must turn to the violation of others model. (52)
Various ideas arise in connection with this distinction. One thinks of the malum in se/malum prohibitum distinction in criminal law, or the literature on "victimless crimes" and John Stuart Mill's harm principle, or George Fletcher's distinction between "wrongfulness" and "wrongdoing" (where the former "highlights the conduct standing in violation of a rule of law" or "the logical dissonance between [the] behavior and the rules of criminal law," and the latter "derives not from the violation of a rule but from a characteristically dangerous ... way of doing harm to others" and "[a]t the core ... an invasion against the victim's interests"). (53) To my mind, however, the best explication of the two categories is to be found in the philosopher Michael Thompson's remarkable paper, What Is It to Wrong Someone? (54) The question Thompson takes up in that paper is: how do we think about ourselves and our duties when we are committed to doing what is just? That is, what is the posture of mind of a person oriented to justice and trying to determine what in some particular situation justice requires of her? (55) The term "justice" here carries its traditional (indeed ancient) sense, naming "a virtue of individual humans like you and me," rather than its modern sense concerning "a feature of the larger social structures into which we fall." (56) The question is, how do we think about the moral universe when we are exhibiting the virtue of justice?
What Thompson picks out in answer is the relational--or as he puts it, "bipolar"--aspect of such thought:
The mark of this special virtue of human agents.., is that it is 'toward another'.... It is characteristic of the individual bearer of justice ... to view herself as related to others, and as other to others ...." (57)
That is, whatever the particular content of our thoughts regarding justice, the grammar of the thought is that there is a me and a you linked together in a certain morally charged relationship. As Thompson puts it, there is in the mental posture of justice a "yoking of agent to agent" (58) in a "formally distinctive type of practical nexus." (59) "[The two agents] are for me," he says, "like the opposing poles of an electrical apparatus: in filling one of these forms with concrete content, I represent an arc of normative current as passing between the agent-poles, and as taking a certain path." (60) The concrete content in that arresting image can be any particular claim of justice--that agent A owes agent B an apology, or that B owes A performance on a contract, or that A trespassed on B's land or on his freedom or whatever else--but what absorbs Thompson's focus are not those particularities but the structure in which they fall: the very fact of those two poles and the normative current passing between them. The posture of mind characteristic of justice is that one sees oneself as occupying one of those poles and all others with whom one comes into moral contact as occupying another. Justice, in short, is an other-regarding virtue. In that essential submission, Thompson joins Aristotle, Aquinas, and Kant, among others; it seems to me that this is a point on which much of the philosophical tradition concurs.
From this base, Thompson develops a more refined version of the initial contrast I offered between Eve's wrong and Cain's, between wrongdoing as a violation of norms and wrongdoing as a violation of others. In Thompson's terms, this is a contrast between "bipolar normativity" and "merely monadic normativity," between a form of moral life in which we say "AT wronged Y by doing A" and one in which we say only that "X did wrong in doing A"--Y having dropped out of the picture. (61) The former is a three-part relation between agent, victim, and norm, in which the relationship between the agent and victim has somehow become corrupted and the norm serves to describe or account for the way in which it has become corrupted. The latter is a two-part relation between agent and norm, in which the person wronged is incidental to the statement of the moral issue (though potentially necessary, depending on how the norm is defined, for the norm to have been violated at all).
One could wonder what this difference really amounts to. It seems possible to redescribe most or perhaps all bipolar moral claims as merely monadic ones ("Cain did wrong in committing murder" rather than "Cain wronged Abel by murdering him") and perhaps it would be possible to go the other direction too, redescribing merely monadic claims as bipolar ones ("Eve wronged God by violating his trust" rather than "Eve did wrong in violating God's law"--though that recasting of the issue seems somehow more strained). One could imagine a partisan of one of these two modes of moral thought trying to colonize the field. So is the difference a real one? Thompson tells us that "tradition and intuition alike assign [the merely monadic claims] a place very different from that occupied by our bipolar forms," (62) and that may be, but is there some more definite reason for the distinction than mere fidelity to tradition and intuition?
I think there are five such reasons. First and most important, our social practices fall into monadic or bipolar forms already and thus become inaccessible or unintelligible if we don't have recourse separately to each of these two options. Apology and forgiveness, for example, are bipolar: I cannot forgive a wrong done to you. (63) Private law is bipolar: the claim for breach belongs to the promisee, for tort to the injured. These practices are part of the architecture of social life, yet a merely monadic view of morality would be baffled by them. Second (and relatedly), whether we take a monadic or bipolar view of some type of wrongdoing will affect our redressive scheme because the distinction bears on whether the claim for redress belongs to the community or to the victim. A monadic understanding of promise breaking, for example, would suggest that anyone might take action to rectify the breach--the issue being that A broke a promise, rather than that A broke a promise to B whereas a bipolar understanding would suggest that the demand for redress belongs to the promisee alone. This question of redressive form is of course a major issue in the law. Third, the possibility of redescribing bipolar claims as monadic ones and vice versa does not undermine the distinctiveness of the two forms. What makes them distinct is not just how the claim is described or expressed, but whether, in accounting for, say, Cain's wrong, we would need finally to say something about Abel (about his dignity, for example, or his value), or in accounting for Eve's wrong, we would need finally to say something about God (about his divinity, for example, or his authority as moral lawgiver). The issue is what object of moral consideration is explanatorily basic. Fourth, monadic and bipolar modes of thought are importantly different in emphasis, in what they make salient. That kind of textural change is easy to disregard, but it matters: our moral ideas are part of the material from which we constitute our personalities and our cultures, and the difference between thinking of them as the product of our interlinking with other people and thinking of them as the instantiation of our duties to the abstract law changes who we are. (64) Finally, as Thompson argues, the verdict of monadic and bipolar moral judgment may diverge even in one and the same instance--a most striking claim. "If, for example, you are making an unjustly intrusive enquiry, and I tell you a lie in response," Thompson writes, "it certainly doesn't seem that I wrong you. But a lie would cover me with shame nevertheless." (65) I like to fill this example in with the thought of a Nazi soldier asking a Jew to identify his religion or ethnicity, intending to cart him off to the camps if the answer is "Jewish." A lie does not wrong the Nazi. But one might be ashamed of it nonetheless.
Something important for victimization purposes happens in Thompson's explanation of this example. If you mount an unjust inquiry and I lie in response, Thompson says, the account of this moral event would of course have to include you in some sense--you're part of the story. But you would be, as Thompson memorably puts it, "the occasion, not the victim, of my fall." (66) This is the first use of the word "victim" in Thompson's study of wrongdoing, and it is no coincidence that it should be found here, in his explanation of what is missing in a monadic and present in a bipolar normativity. In a monadic normativity, the victim is always in some sense incidental--always, at most, just the occasion of one's fall. Sometimes a monadic wrong may have no victim or no clear victim at all (think again of Eve and the apple). But even where there is a victim, a monadic way of thinking makes that victim incidental to understanding the wrong--incidental, that is, to understanding why the wrong was wrong. Consider again the story of Cain and Abel: if the essential thing is that Cain violated a norm against murder, Abel is relevant only in the sense that he was the site at which the norm was violated--he was, like the Nazi lied to, only the occasion of Cain's fall. But on a bipolar understanding, the essential issue is the violation of Abel (of his rights or dignity or personhood, perhaps); the two of them are in a moral relationship ("like the opposing poles of an electrical apparatus" (67)) and the very nature of the wrong has to do with the way in which Cain's violence trod upon that relationship. In a word, bipolar wrongdoing is victim-creating. That is what makes it the substrate of the concept of victimization. And that is why understanding victimization is a theoretical key that can open up the entirety of the interactive approach to crime. To understand victimization is to understand bipolar wrongdoing. And to meet Fletcher's "interesting challenge" of integrating victims into the justification for punishment, to work out any version of Prittwitz's view of crime as an "interaction" between criminal and victim, we need the idea of bipolar wrongdoing; it is the foundation on which the entire edifice, not just the particular concept of victimization, must rest. (68)
Now, there is a great deal of thought about how law works swirling around this monadic/bipolar contrast. Thompson takes the expression "bipolar" from the legal theorist Ernest Weinrib, for whom bipolarity is the molten core of private law. (69) Monadic normativity, meanwhile, is characteristic of public law. In the one case, the claim belongs to the wronged and the architecture of the suit is offender versus victim, with the victim seeking recompense; in the other, the law issues in a "Thou shalt not," and the architecture of the suit is offender against community, with the community insisting that its norm be upheld. Indeed, for Thompson, the very model of "merely monadic normativity" is criminal law. A subsection of his paper is entitled: "Positive Law Encodes our Opposition in the Distinction between Private Law and Criminal Law." (70) He writes: "The verdict of the jury, 'Guilty!', expresses a property of one agent, not a relation of agents. If another agent comes into the matter--if there is, as we say, a 'victim'--it is, so to speak, as raw material in respect of which one might do wrong." (71) Indeed, Thompson goes further, suggesting not only that criminal law reflects a monadic form of thought but that criminal law is "the implicit model" for monadic thought--all monadic thought. (72) Criminal law actually becomes, for him, the ground of monadism rather than monadism the ground of criminal law.
And this is where I dissent. Thompson has arrived here at what I earlier called the "dominant view" of criminal justice and associated with Michael Moore. (73) Criminal law on this view is understood as a system committed by its very architecture to monadism--a system in which the victim serves only as the occasion for a norm violation, and in which the essential thing is to uphold and defend the community's norms rather than to vindicate the violations of victims. There are deep structural grounds for this view. And formally it is so. But operationally it is not so, at least not consistently and not in full. Consider, by way of contrast with Thompson's picture, this one from George Fletcher:
As the criminal law has matured in the last few centuries, ... the movement has been away from paradigms of wrongdoing toward rules laying down the definition of offenses. In all the jurisdictions of the Western world, the legislature has gained the upper hand over the courts. And with legislative dominance has come the method of law-making in which legislatures specialize: formulating rules that define offenses. The violation of state-supported rules has displaced the violation of the victim's interests as the rationale for punishment.... Yet the ancient idea of crime as wrongdoing, as a paradigmatic wrong against a victim, continues to shape the rhetoric of prosecutors and the passions of the public.... In modern systems of criminal law we must live with an uneasy accommodation of wrongdoing, (the violation of victims' interests) and wrongfulness (the violation of rules). (74)
If Thompson, the philosopher, has the better account of bipolar and monadic moral thought, Fletcher, the criminal lawyer, has the better account of the law. For Fletcher, the monadism in criminal law is a historical and institutional phenomenon, not an essential one--and there are chinks in the armor. I agree with that. What I mean to add is that the bipolar aspects of criminal law can sometimes be found in specific and identifiable places, and victimization is one of them.
We are thus now in a position to state this Article's thesis more technically and precisely than was possible at the outset. What I oppose is a merely monadic conception of criminal law. Criminal law is structurally monadic, but it is operationally bipolar in some ways: criminal law in action is drenched in bipolar normativity. Indeed, one way of thinking about my point is that the gap between criminal law and tort law--cousins both conceptually and historically--is not as wide as it is generally taken to be. The private and public systems of redressing wrongdoing do not occupy wholly different universes; victims' place in the normative order of criminal law is too great for that.
D. Vulnerability and Beneficence, Innocence and Justice
There is one last piece to the philosophical puzzle: bipolar normativity, with its understanding of wrongdoing as fundamentally one person's violation of another, brings the victim back into moral picture, making his or her situation a part of our moral understanding. We can thus start to see why a victim's individual characteristics might matter. But we have so far said nothing about vulnerability or innocence. Bipolar normativity is like the big circle in a Venn diagram, victimization the little circle within it. Within the big circle are other varieties of bipolar normativity, other victim-oriented normative logics, that don't particularly put vulnerability or innocence at stake. (75) I earlier mentioned the special penalties in criminal law for harming political officials (which would seem to turn on concerns for preserving stable government) or the agents of the criminal system (a condition for having a functioning criminal law at all). Some cultures with Confucian moral traditions specially protect parents and ancestors; (76) ancient Greek society specially protected what for them was a near-sacred relationship between guest and host. (77) Bipolar normativity is the philosophical substrate of it all, but we came to that broad moral category in an effort to understand something more specific--namely, the particular form or manifestation of bipolar normativity involved when we respond in a morally distinctive way to predation upon the vulnerable or innocent. Victimization is one way in which normative relationships can become distorted or infected--a way with which our moral culture, perhaps due to its Judeo-Christian roots, (78) is markedly concerned. It is this particularity that remains to be explained.
The value driving our concern for innocence, I submit, is our higher-order commitment to just deserts. When one gangster kills another in a turf war, the reason we view the killing as less bad than that gangster killing an innocent bystander is that the murdered bystander is less deserving of his fate than the murdered gangster. That is not to say the murdered gangster deserved to be killed, but it is to say that, comparatively, he was more deserving of it than the bystander. (Perhaps it would be better to say he was less undeserving.) Desert here is a looser concept than it is in academic criminal theory. It is not limited to state punishment for a morally culpable deed in strict proportion to culpability. More basic and more ancient than that refined, academic's conception of desert is the simple insistence that fault be conjoined with a bad fate. And furthermore, "fault" for this substructural desert is a broad enough concept to encompass risk-taking as well as wrongdoing and general deservedness as well as situational deservedness. As compared to the innocent bystander, the murdered gangster is responsible for his fate because he assumed the risk of violence when he became a gangster and engaged in a turf war. And as compared to the innocent bystander, the murdered gangster earned his fate because being a gangster and engaging in a turf war is wrong. His death is thus, though wrongfully excessive, a quasi-punishment; it shares the most essential feature of punishment, which is not state action (that is a lawyer's fetish), but, in the final analysis, merely the infliction of harm for wrong. (79) Thus the reason predation upon the innocent offends us more than identical predation upon the culpable has to do with the ideal of retributive justice, operating in criminal law as it always does.
There is in this a solution to the puzzle of how the very same act can, depending on the characteristics of the victim, be more or less bad or wrong. The ideal of just deserts is not just a principle of punishment but finally a psychological and even spiritual longing for a world in which happiness is proportioned to virtue. (80) It is the yield of our yearning for a world that is morally under control--a world that, if you only behave properly, won't do you ill. We have a stake, socially, in building such a world. Predation upon the innocent offends that ideal and that goal in a way that the same deed, done against someone who has himself transgressed, does not. Thus the very same act can, depending on the characteristics of the victim, be more or less bad or wrong. It is more or less bad or wrong because the innocence of the victim changes the position of the act with respect to justice.
As to vulnerability, I submit that the value driving our intuitions is what might be called beneficence. The key idea is that a vulnerable person's limited capacity to care for himself imposes on others a greater responsibility to care for him--for we have a stake not only in a just universe, but also in a humane one. Any two connected people are put into some sort of a moral relationship from the standpoint of bipolar normativity; a person habituated to justice always takes herself to be "related to others, and as other to others." (81) But to think all such relationships are exactly the same is a mistake, a failure to take the concreteness of the other into account. It is different, morally, to walk down the street and notice a lost-looking adult and to walk down the street and notice a lost-looking toddler; a different sort of normative current passes between the agents and links them together. Vulnerability thus changes the character of the relationship between two linked persons. It adds a layer to that relationship. To walk away from the lost toddler manifests a degree of human indifference that walking away from the lost adult does not.
We can therefore again explain the puzzle of how the same act can be, depending on the characteristics of the victim, more or less bad or wrong. It is more or less bad or wrong because the vulnerability of the victim changes the character of the relationship between victim and victimizer in such a way that the act--the very same act--registers differently with respect to beneficence. And we have a stake, socially, in building a society committed to beneficence.
Just deserts and beneficence are, I think, the two major values at work in the concept of victimization, but there are a few miscellaneous others worth noting. In situations involving general blamelessness or purity--that is, in situations involving an innocent--there is something at work analogous to the vulnerable person's need imposing on others a special responsibility to be caring: the innocent's trust puts others under a special responsibility to be trustworthy. The financial advisor who rips off a child has done something morally different, though formally identical, from the financial advisor who rips off a professional investor. The latter merely defrauds; the former both defrauds and exploits. In addition--and old-fashioned an idea as it might be--I think it is still true that we place special value on childlike innocence, that we think of purity as a good just as we think of beauty or knowledge as a good, and as such, innocence calls on us to act in such a way as to protect and preserve it. Thus there is something worse about a deed that shatters innocence as compared to the very same deed where it does not. To rape an adult is to violate a person's sexual self-determination; to rape a child is both to violate a person's sexual self-determination and to take his or her innocence. There is an extra wrong done.
One closing point is in order. I've been applying the concept of victimization chiefly to acts; the focus has been on how the same act can be better or worse depending on characteristics of the victim. But it is crucial that the concept applies also to actors. (82) Virtue theory is a natural home for the concept of victimization: the person who directs his wrongs against the vulnerable or innocent has a worse character than the one who does not; predation upon the vulnerable or innocent reflects back upon the disposition of the wrongdoer in a particularly vivid and revealing way. And now, having noticed the relationship between innocence and justice, vulnerability and beneficence, we're equipped to see why. One's treatment of the innocent is a measure of one's commitment to the project of building a society based upon justice. Someone who preys upon the innocent has, as it were, launched himself out of that project. Likewise, one's treatment of the vulnerable is a measure of one's commitment to the project of building a society based upon beneficence; to prey upon them is to reject that project, to display a soul indifferent to human need. It is to some degree this issue of the offender's character that makes victimization properly one concept--a unity--despite the disjunctiveness of its two component parts. (After all, if those two parts were altogether disjunctive, victimization might just be two things.) The unity is not just that the qualities of vulnerability and innocence are often conjoined in the same victim; it is even more that the mind of the person who would prey upon the vulnerable is also the mind of the person who would prey upon the innocent. Perhaps victimization is thus what we mean in criminal law when we speak of "depravity." (83) It is a mind heedless of all moral limits.
By contrast, think again of Omar, committing acts of robbery for a living, inviting and sometimes involved in violence, yet still a heroic character in the story in which he plays a part. How is that possible? It is possible because, having "never put [his] gun on no citizen," (84) Omar never turned his back upon the projects of justice or beneficence. We still might not approve. But we do not condemn to the same extent.
II. THE CONCEPT AT WORK
I take it that the concept of victimization is now reasonably clear: it is a moral intuition with a certain internal structure and logic and a prominent place in ordinary moral life. But it is one thing to define a concept philosophically and another thing to show that the concept actually has some life in the law. We transition now to that legal and legal-sociological analysis. The goal is to demonstrate that, as a descriptive matter, American criminal justice is systematically concerned with the phenomenon of victimization. The inquiry is in two halves: the first centered on legal doctrine and the second on social practice.
A. Legal Doctrine
A methodological remark is necessary before we get started. My doctrinal aim is to engage interpretively with penal codes in such a way as to render one of their implicit normative commitments explicit. It is necessary to engage with them interpretively because the codes, though filled to the brim with moral ideas, consist not in direct statements of principle but in definitions of crimes and defenses, requirements of liability, prescriptions of punishment, and the like. There is always a gap between legal command and moral idea, which interpretation fills. So the challenge here is to work backwards from command to idea in a process of normative statutory interpretation--which invites a question: how are we to detect the concept of victimization in a criminal code? How are we to find it?
There are different ways to answer that question, but the one I'll be using is this: imagine you were a legislator inclined to put the concept of victimization to work in a criminal code. What options would be available to you? There are three obvious ones. First, you could break ranks and name the concept explicitly, establishing as law that, given two otherwise identical crimes, the punishment is to be more severe as the "volume" on the victimization knob goes up or less severe as it goes down. But if you don't do that, you'd need a more subtle approach. So, second, you could identify, expressly or by implication, a class of victims who are characteristically vulnerable or innocent and stiffen up penalties for crimes committed against that class. And third, you could identify a class of victims who are characteristically powerful, risk-taking, or culpable and reduce penalties for crimes against them (this you would almost certainly do by implication). The argument below is organized according to these three options. It is an argument of jabs rather than knockout blows, but the overall picture strongly indicates that the concept of victimization is present in criminal doctrine.
1. Naming the concept in doctrine
That there is anything in this category of "naming the concept in doctrine" should come as a surprise. It's of course possible for a legislature concerned with victimization to just write the concept into the criminal code and pass it into law, but to actually do so is unusually, almost jarringly self-aware and morally transparent. Yet we have in the "Vulnerable Victim" provision of the Federal Sentencing Guidelines an exception to the norm. (85) Perhaps we have it because it was originally the product, not of a legislature directly, but of the Federal Sentencing Commission, and criminal sentencing commissions are supposed to be self-aware and morally transparent, or at least to make something that is so. In any case, the provision appeared with the first edition of the Guidelines in 1987; (86) was clarified and broadened on Congress's express instruction in 1995 (87) and again in 1998; (88) and is now a fixture of federal criminal law.
In its 2012 form, the Vulnerable Victim enhancement directs sentencing judges to increase an offender's sentence by two levels in any case in which he "knew or should have known that a victim of the offense was a vulnerable victim"--meaning someone who is "unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." (89) The commentary explains that a handicapped robbery victim or someone sold a fake cancer cure would qualify an offender for the enhancement, while a bank teller, whose exposure to crime was "solely by virtue of the teller's position in a bank," would not. (90) The commentary also instructs that the enhancement is not to be applied where "the factor that makes the person a vulnerable victim" is already incorporated into an offense's specific guideline provision, as when the guideline already enhances the penalty for the very old or very young. (91)
That is a strikingly penetrating rendition of the vulnerability prong of the victimization concept (innocence is missing). The commentary in particular leaves no doubt (not that the main text left much) that vulnerability in the sense we have been using the term is the provision's concern. Courts have caught the flavor of the idea and, in applying the provision, have given voice in the Federal Reporter to aspects of the victimization intuition. (92) The addition of a mens rea term ("knew or should have known") is interesting; it suggests that greater blameworthiness and not merely greater wrongfulness is the enhancement's concern, that the focus should be on the offender and not merely his deed. (I'll pick up on the mens rea suggestion in Part III.C-D.) Also interesting is the exception for sentences that already take into account "the factor that makes the person a vulnerable victim"; this constitutes recognition of the fact that an implicit concern for vulnerability runs throughout Title 18 and the Sentencing Guidelines already, in their many preexisting provisions concerning victim age and disability and the like. But these are details. The remarkable thing here is that the first Commission, tasked with uncovering the proper principles of offense grading, saw its way to one part of the concept of victimization and simply made that part of the concept into law.
I like this example because it shows that there is at least something to the idea that criminal law exhibits concern for victimization. It remains to show that victimization is systematically part of American law (including with respect to innocence and in state law), but the claim that victimization is present in our law is, given the enhancement, at least not false.
2. Children, the elderly, and the disabled
a. In general
I argued before that one option available to a legislature with victimization on its mind is to expressly identify certain classes of characteristically innocent or vulnerable victims and prescribe special penalties for crimes committed against members of those classes. I'd like to begin here with a simple point: criminal codes are absolutely chock-full of special provisions for crimes committed against children, the elderly, and the disabled.
What astonishes is the array of examples. We've already seen a few from federal law: penalties go up for dealing drugs to a person under twenty-one, (93) for committing telemarketing fraud against the elderly, (94) or for knowingly committing any crime against "vulnerable victims" (specifically including children, the elderly, and the disabled). (95) Federal law also treats crimes in which a disabled victim was selected because of her disability as hate crimes, (96) as do California, New York, and Texas (97)--the three largest states in the country, and the three I'll focus on here. (98) But these are one-off examples; more striking is to work systematically through a state's crimes against the person looking for special reference to one or all of our three victim groups.
In Texas, for example, a murder becomes death penalty eligible if the victim is under age ten. (99) Unlawful restraint becomes a felony if the victim is under age seventeen. (100) Assaults that are otherwise Class C misdemeanors become Class A misdemeanors where the victim is elderly or disabled. (101) In fact, Texas has a special type of assault--delineated by its own independent subdivision, making it formally its own crime--precisely for offenders who cause injury to "a child, elderly individual, or disabled individual," and no other group; intentional assaults against these victims count as first-, second-, or third-degree felonies. (102) Abandonment of children or leaving them in vehicles is specially criminalized. (103) Of course there is the array of sex crimes involving children, including sexually based human trafficking (which becomes a felony of the first degree if the victim is under age eighteen, equivalent to human trafficking of adults that results in death); (104) continuous sexual abuse of a child (which in especially serious cases receives a harsher penalty than virtually any other crime except capital murder); (105) indecency with a child; (106) improper relationship between educator and student; (107) and sexual assault upon a child, (108) which becomes aggravated sexual assault if the child is younger than fourteen (and which also carries some of the harshest penalties in the code). (109) The special provisions governing sex have a good deal to say about the elderly and disabled as well. It is, for example, sexual assault to have sex with someone with a serious mental disability, (110) and not only does sexual assault become aggravated where the victim is a child, but also where the victim is disabled or (perhaps surprisingly) elderly. (111)
There aren't that many offenses against the person; the list just given is comprehensive. There is in Texas no category of offense against the person without special provisions for one or more of our three victim groups. Furthermore, the pattern seems to hold if one looks past the category of crimes against the person (fraud, for example, is specially criminalized where the victim is a "child, elderly individual, or disabled individual" (112)) and past Texas. It might, in fact, be even more pronounced in California. (113)
What we are seeing here is a systematic assertion by our criminal law that it is worse to commit a crime against children, the elderly, or the disabled than it is to do precisely the same thing with precisely the same kind of intent to an ordinarily situated adult. The assertion is so pronounced as to be counted among the features of American criminal law properly considered basic. And it should be seen as a puzzling feature of the law. Some might regard it as obvious that there is something worse about assaulting or kidnapping or killing a child than committing that same crime against an able-bodied adult, but that is a mistake; just because something is intuitive does not make it obvious. Why should committing the same prohibited act with the same prohibited mental state count differently in the moral scales because the victim is very young, or very old, or in a wheelchair? Two people are raped; one is an adult, the other a child. We feel there is a difference. According to our law, there is a difference. But what is the ground of the difference? There is no extant conceptualization of the pattern, and lacking that conceptualization, even the bare fact of the pattern seems to have been overlooked. The world is hard to see until we have the concepts we need to see it. Perhaps the most basic contention of this Article is simply that a phenomenon this pronounced calls for explanation.
The concept of victimization has explanatory power here. An adequate explanation for the differential treatment afforded children, the elderly, and the disabled in criminal law, especially where it affords special treatment to them as a set, should track some feature these three groups share in common. What could that common feature be if not a victim characteristic of some sort, and what characteristic do these victims share if not their vulnerability and, with respect to the mentally immature, diminished, or disabled, their innocence? The victimization concept also has intuitive power here. If we imagine crimes in which children, for example, are beaten, raped, or exploited, and hold up to introspective view the type of outrage we feel in response--an exercise legislators must engage in when they establish criminal law--an instinct for vulnerability and innocence is, I submit, what we'll find. Really, when the law goes so far as to name three classes of victims like these three and establishes a series of exceptional penalties for harming them, the concept of victimization is a very natural explanation. Perhaps the case is not as clear as the "vulnerable victim" enhancement, but the interpretive gap here between legal command and moral idea is not a large one.
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|Title Annotation:||Abstract through II. The Concept at work A. Legal Doctrine 2. Children, the Elderly, and the Disabled, a. In General, p. 1087-1127|
|Publication:||Stanford Law Review|
|Date:||May 1, 2013|
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