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Publication Title

Washington University Law Review

Abstract

Part I of this Article briefly summarizes the commentary and studies that have examined the effect of victim-offender relationships on criminal justice decision making. It also notes instances where the treatment of stranger violence as more serious crime than comparable non-stranger violence has been codified in statutes or other written regulations. Possible justifications for the prioritization of stranger violence over non-stranger violence are explored in Part II. Those justifications include (a) a perception that stranger offenders are more culpable than nonstranger offenders; (b) a perception that stranger offenders are more dangerous than non-stranger offenders; (c) a belief that the non-stranger victims are at least partially at fault for the offenders’ actions; (d) a belief that non-stranger violence is best resolved as a private or non-criminal matter; and (e) fear and general public concern caused by stranger crime. This Part examines the empirical evidence that supports and contradicts each explanation, as well as the soundness of each justification for differentiating between offenders who are similar in all respects except for whether they knew their victims prior to the offenses. Part III makes the affirmative case for according non-stranger violence the same level of priority as stranger violence by identifying three arguments that suggest non-stranger crime is more serious than stranger crime. Drawing on the role of victim harm in criminal liability and sentencing decisions, it argues that the prioritization of violent crimes committed by strangers ignores the unique harms associated with nonstranger violence, such as increased victim injuries and breach of trust. Violence within personal relationships is also distinct from stranger violence in that a non-stranger offender violates not only the ordinary duty of one citizen not to physically harm another, but also the additional obligations and duties associated with many close social relationships. This Part briefly outlines the various positive obligations that the law imposes in close personal relationships, and it concludes that in prioritizing violence by strangers, the criminal law is inconsistent with other areas of law. The final affirmative argument in favor of equal prioritization of stranger and non-stranger violence is an argument about the interplay of criminal law and social norms: in treating stranger violence as more serious than non-stranger violence, the criminal justice system reinforces the questionable notion that violence is an unavoidable, and thus potentially excusable, aspect of personal relationships. The final Part of this Article briefly sketches my conclusions and their implications, explaining that my conclusions do not necessarily require more severe treatment of non-stranger violence, but indicate that nonstranger violence should receive equal treatment to stranger violence. This Part also notes that the two types of crime differ in some practical respects, and those differences must be considered in setting crime prevention and enforcement policies. Ultimately, the most effective prevention and enforcement techniques for non-stranger violence may require changing the public perception of non-stranger violence as less serious than stranger violence. The last several decades have already seen significant changes in public attitudes towards the seriousness of domestic violence and acquaintance rape. But even today stranger violence continues to garner a disproportionate amount of public attention and criminal justice resources. If, as this Article concludes, the more serious treatment of stranger violence cannot be justified, then public attitudes toward non-stranger violence require further change.

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