Chiesa, Luis E.

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Pace Law ReviewVolume 28Issue 4 Summer 2008Symposium: Victims and the Criminal Justice SystemArticle 1June 2008Foreword Symposium: Victims and the CriminalJustice SystemLuis E. ChiesaPace University School of Law, lchiesa@law.pace.eduFollow this and additional works at: http://digitalcommons.pace.edu/plrPart of the Criminal Law CommonsThis Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace LawReview by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.Recommended CitationLuis E. Chiesa, Foreword Symposium: Victims and the Criminal Justice System, 28 Pace L. Rev. 617(2008)Available at: http://digitalcommons.pace.edu/plr/vol28/iss4/1PACE LAW REVIEWVolume 28 Summer 2008 Number 4Symposium:Victims and the CriminalJustice SystemForewordLuis E. Chiesa*On April 4, 2008, Pace Law School hosted a groundbreak-ing symposium that brought together various prominent crimi-nal law scholars to address pressing questions about theimportance of the victim in the administration of criminal jus-tice. The distinguishing feature of the symposium was its inter-national flavor. This was the first time that American andSpanish scholars engaged in an academic debate about impor-tant issues of criminal theory. As such, it constituted an impor-tant step in bridging the gap between common and civil lawapproaches to penal responsibility issues. At first glance, onemight be tempted to conclude that Anglo-American criminallaw scholars have little to learn from their continental counter-parts and vice-versa. The contributions to this symposium is-sue reveal, however, that there is much to gain and little to losefrom reaching out to scholars on the other side of the Atlantic.* Associate Professor of Law, Pace Law School.6171PACE LAW REVIEWMter all, if the problems of criminal law are universal in na-ture, it seems obvious that we will profit from engaging in atransnational debate about the fundamental problems of crimi-nal theory. And profit we did.The contributors to the symposium presented papers on awide array of issues. Some, like Leo Zaibert and Ifigo Ortiz deUrbina, broke new ground by focusing on old (and not so old)debates. Zaibert took the George Fletcher/Michael Moore ex-change on the role of victims in the theory of retribution' to thenext level by cogently arguing that an appeal to victims is pre-sent in many conceptions of retributivism, including-notwith-standing his contention to the contrary-Moore's own version ofthe theory.2 This approach constitutes a direct affront to theconventional wisdom, for retributivists usually argue that thevictim's desires should have little, if any, bearing on determina-tions of punishment. Ortiz de Urbina, on the other hand, seizedon a debate sparked by Vera Bergelson's impressive article oncomparative liability in the criminal law3 to shed light on vari-ous important issues. With great acuity (and a healthy dose ofhumor), Ortiz de Urbina undertook several notoriously difficulttasks, such as ascertaining the rationales underlying the con-sent, self-defense, and provocation defenses and explaining thedifferent ways in which the rights specification, conditionalityof rights, and forfeiture theories may inform our conception ofjustification defenses. 4A couple of interesting articles focused on answering thequestions about "how, what, and how much to punish." JesfisMaria Silva Sdnchez tackled the "how to punish question" bysuggesting that, as a general rule, victim-centered theories ofpunishment should lead to rejecting offender imprisonment, forvictim vindication can be successfully achieved by resorting to"symbolic" and "expressive" declarations of condemnation (e.g.,1. See George P. Fletcher, The Place of Victims in the Theory of Retribution, 3BUFF. CRIM. L. REV. 51 (1999); Michael S. Moore, Victims and Retribution: A Replyto Professor Fletcher, 3 BUFF. CRIM. L. REV. 65 (1999).2. Leo Zaibert, The Ideal Victim, 28 Pace L. Rev. 885, 899 (2008).3. Vera Bergelson, Victims and Perpetrators: An Argument for ComparativeLiability in the Criminal Law, 8 Buff. Crim. L. Rev. 385 (2005).4. See generally Ortiz de Urbina, Old Wine in New Wineskins? AppraisingProfessor Bergelson's Plea for Comparative Criminal Liability, 28 PACE L. REV. 815(2008).618 [Vol. 28:6172http://digitalcommons.pace.edu/plr/vol28/iss4/1FOREWORDby procuring a guilty verdict).5 Regarding the '"how much topunish" question, Guyora Binder argued that victims' sufferingprovides the State with good reason to punish actual harm moreseverely than risky conduct that does not cause harm. This ar-gument offers a solution to the moral luck puzzle: the punish-ment of harm matters because doing so "contributes to thelegitimacy of the criminal justice system by vindicating victims"that have been humiliated by the perpetrator's injuriousconduct. 6Vera Bergelson, Manuel Cancio MeliA, and Russell Christo-pher discussed how the victim's acquiescence to engage in cer-tain conduct with the alleged offender may operate to relievethe defendant of criminal responsibility. Bergelson offered awell-reasoned plea in favor of a general defense of consent.However, she suggested that the defense should only attach ifthe following three requirements are met: (1) the victim freelyconsented to the perpetrator's conduct, (2) the state of affairsthat results amounts to an objectively preferable outcome, and(3) the offender is subjectively aware of the victim's consent andbelieves that it is necessary to harm the victim in order toachieve the preferable outcome.7While Bergelson focused on the exculpatory effect of con-sent, Manuel Cancio MeliA inquired about whether the victim'svoluntary decision to engage in a risky joint enterprise with theoffender should preclude imposing liability on the offender. ForCancio Melid, a person with freedom to act must assume re-sponsibility for the harms directly caused by his autonomousconduct, regardless of whether the person harmed is a thirdparty or the victim herself. Therefore, those who engage in adangerous joint enterprise must assume responsibility for theirown harms in much the same way as they must accept responsi-bility for the injuries that their dangerous conduct may cause to5. Silva Sanchez, Doctrines Regarding "The Fight Against Impunity" and "TheVictim's Right for the Perpetrator to be Punished", 28 PACE L. REV. 865, 877-79(2008).6. Guyora Binder, Victims and the Significance of Causing Harm, 28 PACE L.REV. 713, 736 (2008).7. Vera Bergelson, Consent to Harm, 28 PACE L. REV. 683, 699 (2008).20081 6193PACE LAW REVIEWothers.8 In such cases it is difficult to single out one of the par-ties that is jointly engaging in the conduct as either victim oroffender.Russell Christopher's article also discusses the subtle waysin which victimhood and offenderhood intertwine by examining,among other cases, instances of statutory rape in which a minorconvinces an adult to engage in sexual intercourse by falselyrepresenting that he or she is over the legal age of consent.Christopher argues that while the perpetrator who has sex withthe underage child is the offender of the crime, the child hasalso committed rape, in his case, by fraud. Thus, both the childand the adult should simultaneously be considered both victimsand offenders of the crime of rape. When the victim and of-fender labels get confused in such a manner, Christopher ar-gues that both parties should have a defense for the crime thatthey have otherwise committed. The child should be relieved ofresponsibility for rape by fraud and the adult should not be heldliable for statutory rape.9Several of us attempted to expand the concept of "vic-timhood" to encompass offenses that would traditionally be con-sidered "victimless crimes." Carlos G6mez Jara Diez, forexample, argued in favor of affording victimhood status to cor-porations that are mismanaged, even when both the sharehold-ers and the management .consent to the mismanagement. 10This amounts to a reconceptualization of the status of corpora-tions, for the traditional view holds that their interests are in-extricably tied to the interests of management andshareholders. Audrey Rogers undertook a reconceptualizationof her own when she proposed that we reject the traditional in-terpretation of possession of child pornography statutes as of-fenses that merely seek to deter future harmful conduct. In heropinion, it is better to think of these crimes as offenses that seekto redress conduct that causes actual harm to the child depicted8. See generally Cancio MeliA, Victims and Self-Liability in Criminal Law: Be-yond Contributive Negligence and Foreseeability (Without Blaming the Victim), 28PACE L. REV. 739 (2008).9. See generally Russell Christopher, Should Being a Victim of a Crime Be aDefense to the Same or a Different Crime?, 28 PACE L. REV. 783 (2008).10. See generally Gomez Jara-Diez, Corporations as Victims of Mismanage-ment: Beyond the Shareholders vs. Managers Debate, 28 PACE L. REv. 795 (2008).[Vol. 28:6174http://digitalcommons.pace.edu/plr/vol28/iss4/1FOREWORDin the photo." I also attempted to challenge the conventionalunderstanding of victimhood when I proposed that animals betreated as "victims" for many purposes, including the possibilitythat restitution be paid to the creatures. The point of departurefor my argument was the surprising decision of a United StatesDistrict Court to order that the now infamous football superstarMichael Vick make restitution for the full amount associatedwith the care of the dogs that he kept for his illegal dog fightingoperation. 12Finally, David Aaronson provided us with a thorough ex-amination of the ebbs and flows of the victims' rights movementfrom the early 1980s to the enactment of Crime Victims' RightsAct of 2004.13 Aaronson's piece helps us understand the ways inwhich the criminal process has changed in order to accommo-date the interests of victims and the challenges that suchchanges raise.I am delighted to see these papers published in the PaceLaw Review. The contributions to this special issue demon-strate the benefits that can be reaped from engaging in a trans-national dialogue about fundamental issues in criminal theory.One can only hope that this will be the first of many conversa-tions between American and Spanish criminal theorists. It wasan honor to have played a small role in this venture alongsidethe members of the Pace Law Review, especially JenniferRamme, Ayokeji Ayorinde and Deborah Sommers. Withouttheir invaluable assistance this project would not have comeinto fruition.11. See generally Audrey Rogers, Child Pornography's Forgotten Victims, 28PACE L. REV. 847 (2008).12. See generally Luis Chiesa, Of Persons and the Criminal Law: (SecondTier) Personhood as a Prerequisite for Victimhood, 28 PACE L. REV. 759 (2008).13. See generally David Aaronson, New Rights and Remedies: The FederalCrime Victims' Rights Act of 2004, 28 PACE L. REV. 623 (2008).2008]5

Foreword Symposium: Victims and the Criminal Justice System

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