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Victim and Criminal During the Same Offence


In criminal law, there several instances when cases involve two distinct parties, the accused and the prosecutor. In ordinarily legal parlance, the accused refers to the criminal. It is the duty of the state to prove that the accused did actually commit the crime. In that vein, most jurisdictions place the onus of prosecution on the state. This is because crime is regarded not as an offense against a person, but an offense against the state. The state is, therefore, the custodian of criminal justice. The prosecutorial duty is executed on behalf of the actual victim, usually treated as a witness. Crime, however, involves two parties, the criminal and the victim. The victim refers to the innocent party to whom the crime is committed against or suffers the consequences of the crime. It could also be the person who is negatively affected by the commission of the crime. On the other hand, the criminal refers to the perpetrator of the crime who either directly or indirectly commits the crime or omits to do an action that would essentially prevent occurrence of the crime. It remains important to note parties to crime. The knowledge and understanding is useful for purposes of administration of justice without any miscarriage founded on ignorance of the law. Legally, criminal responsibility accrues to the criminal after proof that is beyond reasonable doubt. It is noteworthy that before a criminal is proved guilty, the person or group of persons are usually referred only as the accused or the appellant in cases where rulings have been appealed against (Herring, 2011, p. 34).

However, it is not always that in every case the parties to a crime would be clear and distinct. Situations do occur where the parties do not necessarily restrict their position as either victims of crime or criminals. The law appreciates such occurrences and provides for mechanisms in which justice can be administered in such instances. This paper briefly discusses situations in which the criminal and the victim are one and the same party depending on prevailing circumstances (Gardner & Anderson, 2008, p. 34).


Within the boundaries of criminal law, a party to a crime could be considered to be both a victim and a criminal depending on how he behaves and reacts in the events of incidents leading to crime. This paper analyses criminal defenses and the manner in which those defenses could expose a victim to a crime into becoming a criminal. Ordinarily, the law allows for crime victims to defend themselves against crimes. There are three broad classes of defenses. These are as follows: defense of self, defense of property and defense of third party (Elliott & Quinn, 2008, p. 44).

Defense of self

Defense of self arises when a victim is faced with imminent danger or threat that risks his or her life. In such cases, the victim usually has been attacked by a criminal or a group of criminals. The law allows the victim to use force or violence when in the defense of his own life. Usually, the victim is required to use force only equal or lesser in measure to the actual threatened force or violence. For instance, a victim attacked by a stick cannot react with a gunshot. The rule of the thumb is that the victim ought not to do more than is necessary to defend his own life. This requirement could be quite difficult to observe. This is because ordinarily a victim on being attacked usually would not be within normal reasoning circumstances. The victim would be compelled to do anything, which in his opinion, would be sufficient and adequate to defend his own life from the threat. Logically, victims would do action that is over and above normal. It is under these circumstances that victims usually find themselves crossing the line between being victims into being criminals. The moment, in the eyes of the law, it is considered that the victim used unnecessary and excess force or violence or action in his defense, some criminal liability would devolve on the victim. He would be expected to incur the criminal blame for the action that was unnecessary. Ordinarily, victims would plea defense of self. They would assert that they acted in the spur of the moment and therefore criminal liability ought to be lifted from them. However, such pleas merely mitigate the cases.

Courts usually minimize sentences that they award to such victim criminals. The spirit of the law is to punish victims who use excess and unnecessary force, violence or action in defense of their lives while still allowing them a little leeway for the crime. It is a recognized fact that usually the victims are not offenders by choice but are constrained into crime by supervening circumstances. The law, therefore, isolates such victims through preferential treatments. In murder cases, for instance, this class of criminal victims have their cases relegated from murder charges to manslaughter charges. The principle hinges on the fact that a crime is a crime. It ought not to be committed in the first place. This principle could be seen as irrational and impractical (Emanuel, 2007).

However, critics assert that such a principle essentially prevents abuse of the law for the sake of personal expediency. Imagine scenarios where these victims were allowed to go away scot free. This loophole might be exploited by individuals to aimlessly commit murders and other crimes in the name of defense of self. The law must set a benchmark in form of precedents that do not unnecessarily create confusion and uncertainty. For victims to avoid uncovered situations in which they are punished for crimes they had no mental intent to commit, they have to exercise restraint and calmness in the face of adversity. Victims are best advised to react in a manner that would save their lives with least possible damage or crime committed in return. Courts have taken a rather lenient approach as concerns the defense of self. Ordinarily, the standard of proof in criminal law is that of beyond reasonable doubt. However, in proving defense of self, victims are expected to demonstrate a lower standard, that is, on a balance of probability. The prosecutor is also required to prove that the force, reaction or action the victim used was necessarily excess and unnecessary. The prosecutor must show that the victim had the opportunity of using other alternatives to save himself from the ensuing situation. It should be noted that unlike the lower standard of proof on the victim, for the prosecutor, standard of proof remains that of beyond reasonable doubt (Singer & La Fond, 2010, p. 43).

Defense of property

In addition to defense of self, defense of property could also pose situation in which victims become criminals. Ordinarily, the law allows for one to use necessary force, action or reaction in the defense of his property from theft, damage, unpermitted use or any other action that infringes on his right as a property holder. Under normal circumstances, one is expected to enjoy unrestricted use and access of his property without any prohibition. The law necessarily facilitates that by providing security and avenues that ensure property can devolve to personal ownership. In the event one’s right to his property is infringed upon, the law allows for the party to defend his right and property using reasonable standards and procedures. In cases where the property is forcefully derived from its owner through illegal means, the owner is allowed to defend this illegality using reasonable force. What is reasonable is a question of fact. It is left upon the judge’s discretion to decide whether action of the victim in defense of his property was reasonable or not.

The spirit of the law, like in defense of self, is for victims to get a leeway for their actions which in their own rights are justified and at the same time ensure no miscarriage of justice occurs. The rule of law and natural justice dictates of property owners should desist from taking the law in their hands.However, all laws have exceptions. It is considered illogical for owners of property to observe blatant abuse or infringement of their rights to property without doing anything in defense. It is only logical and natural for property owners to defend their property from damage or abuse. These owners, however, should limit their actions to only justified and necessary levels. It would be illogical, for example, for an attacker armed with a spade to be counter-attacked by a spear. The level of force used in defense must be reasonable and justifiable in the eyes of an ordinary man (Emanuel, 2007, p. 52).

It would be appreciated that unlike defense of self, where the stakes are high, in defense of property, the fact that property does not possess life and is non-living limits the amount of action allowed for victims to exert against the attackers. In some cases, attackers to property usually threaten the lives of property owners as well. In these circumstances, the stakes are high and victims are allowed a wider range of reaction. They should consequently react in a manner that would both defend their own lives and their properties. In extreme cases, even murder is justified and allowed. What determines the amount of force applicable is not limited by any written law. There exist no hard and fast rules. The onus is left on the victim to apply reasonable force in consideration of supervening circumstances. The boundary between reasonable defense and actual crime is therefore thin and varies in respect of circumstances. It is in these instances that victims could find themselves being considered as criminals. Like in defense of self, courts tend to give this class of criminals preferential justice. The burden of proof of defense of property remains with the criminal. The standard of proof is reduced to that of a balance of probability. However, the prosecutor’s burden of proof is unaffected and stands at that of beyond reasonable doubt. It should be appreciated that the prosecutor must also prove that the force applied by the criminal victim was unnecessary or excess of the threatened force (Herring, 2011, p. 34).

Defense of third party

Finally, the third circumstance in which a victim could become the criminal can be examined in the context of defense of third parties. In this case, third parties refer to likely victims of a criminal activity. The law allows for a person or group of persons to defend third parties from criminal activities. Ordinarily, the position of the law is that the third party and the victim defending him or her must have a reasonable relationship. Again, in this case, what is a reasonable relationship is a question of fact and not a question of law. The discretion is upon the judge to rule on whether the relationship was reasonable or not. No written law expressly specifies who fall within the bracket of reasonable relationship (Singer & La Fond, 2010, p. 39).

However, as is the nature of law, reasonable relationships could be observed from the body of judicial precedents from various jurisdictions. We can surmise to say, then, that reasonable relationship is present in the following relationships: immediate family members such as father, mother, son and daughter and spousal relationships like wife, husband and fiancé. The law allows persons to commit or omit action that although of criminal consequence, would be able to prevent criminal activities from occurring on the third party. However, persons are advised not to take the law into their own hands. Persons are likely to act out emotions or out of what in legal parlance is called ‘in the heat of the moment’.

Persons should only apply reasonable force or action that would prevent the occurrence of the criminal activity. The duty of the prosecutor would be to proof that the criminal victim applied excess and unreasonable force. Of course, as in the earlier two cases, the standard of proof for the prosecutor is that of beyond reasonable doubt. However, the criminal victim is allowed a lower standard of proof, that is, on a balance of probability. The intention and spirit of the law is to allow persons to do what is reasonable in defense of their loved ones yet at the same time prevent abuse of the law. It should be appreciated that the general spirit of the law is to prevent criminal activities blatantly committed against persons. In the same vein, the law equally ensures it does not necessarily open doors to an anarchical society. Allowing everyone the right and ability of react to criminal activity amounts to opening of a Pandora’s Box. The general principle of the law is that criminal offenses, being against the state though through direct action on victims should be punished and remedied by the state and not individuals or groups of individuals (Gardner & Anderson, 2008, p. 90).

Personal opinion

The law essentially strikes a balance between logic and legality. It is logical that a victim to a crime would react in one way or another. Violence, physical force and pressure all fall under the class of logical reaction. The human psyche naturally would want to employ the Mosaic tactic of a tooth for a tooth. However, it is also the responsibility of the law to ensure that it is not blatantly abused and overlooked. Man must desist from taking the law into his own hands. Otherwise the rule of law and the practice of natural justice would be defeated. What would result as a consequence is anarchy (Elliott & Quinn, 2008, p. 88).

I appreciate the dilemma these situation present. However, in my opinion, the law should extend its leniency in favour of the criminal victims. It must be accepted that the victims do not form the mental intention to commit crimes. The crimes they commit only have actus reus present. One noble principle of criminal law is that proof of crime usually inculcates two essential elements. These are the mental intention and the actus reus otherwise referred to as the act. One appreciates the preferential treatment the law has adopted in these matters. However, mere reduction of murder cases to manslaughter, in my opinion, does effectively remedy the situation. It skews the scales against criminal victims and consequently amounts to miscarriage of justice. This class of victims ought to be excused and let free. The rationale for my argument lies in the fact that mental intent is entirely absent. Critics argue that this would open a Pandora’s Box and expose society to anarchical systems. This could be stretching the truth to wide. Enough and sufficient legal mechanisms could be instituted to contain such anomalies. In addition, to assuage critics further, the standards of burden of proof can be heightened from that of a balance of probability to that of beyond reasonable doubt. The criminal victims would, therefore, be required to prove beyond reasonable doubt that their reactions were justified and fair. This would effectively reduce cases in which justice is easily miscarried. It would cushion victims against attacks by criminals and provide a remedy that is practical, fast and immediate rather than having to rely on the courts which remedy the situation only after occurrence. Lastly, it would warn offenders against unnecessary attacks on people for the latter would be able to react in the ways they know best (Gardner & Anderson, 2008, p. 77).


The matter at hand is a serious practical occurrence that needs remedial measures. Situation in the world do occur where innocent persons are compelled into acting in a criminal manner. The principle usually is that: no man must not take the law into their own hands. The fear is that such a practise would essentially lead to anarchical systems of power. However, as the law currently stands, criminal victims do not necessarily go unpunished for crimes they commit out of pressure. Their crimes would be given preferential treatment. The defenses primarily aim to give victims some leeway out of full sentencing. It is no wonder that the penalties for manslaughter, in most jurisdictions, are lower when compared to penalties for murder. In addition, burdens of proof of such defenses devolve on the victim with the standard having been reduced from that of beyond reasonable doubt to that of on a balance of probability (Herring, 2011, p. 33).

In my opinion, the law ought to be more lenient to the victims. The entire absence of mental intent should suffice to drop the charges in their entirety. To prevent escalation into anarchy, legal mechanisms could be instituted and developed including making the balance of proof from that of on a balance of probability to that of beyond reasonable doubt. In addition, the citizenry should be substantially educated on the levels of force or action to undertake (Emanuel, 2007, p. 12).


Elliott, C., & Quinn, F. (2008). Criminal Law. New York: Pearson Longman. Emanuel, S. L. (2007). Criminal Law. New York: Aspen Publishers Online. Gardner, T. J., & Anderson, T. M. (2008). Criminal Law. New York: Cengage Learning. Herring, J. (2011). Criminal Law. New York: Palgrave Macmillan. Singer, R. G., & La Fond, J. Q. (2010). Criminal Law. New York.