Victimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important topic for this symposium on “The Role of the ‘Victim’ in the Criminal Legal System.” This blind spot, and the concomitant failure to address the root causes and cyclical nature of violence, perpetuates a racialized narrative of individual culpability and a stark moral binary between those who harm and those who are harmed, while also impeding meaningful change. In this article, I posit some explanations for the persistence of the legal construct of the victim/offender binary, before arguing that the overly reductionist, and arguably false, binary masks the complexity of violence, as well as its often cyclical nature. Recognizing the overlap exposes the normative and contingent nature of what is criminalized, complicates traditional rationales for punishment, including retribution and deterrence, and strengthens calls for a different approach to preventing and redressing harm.
The Victim/Offender Overlap and Criminal System Reform,
87 Brook. L. Rev.
Available at: https://brooklynworks.brooklaw.edu/blr/vol87/iss4/10