Hornle - Distribution of Punishment. The Role of A Victims Perspective PDF

Distribution of Punishment: The Role of a Victim's Perspective
Author(s): Tatjana Hörnle

Source: Buffalo Criminal Law Review, Vol. 3, No. 1 (April 1999), pp. 175-209
Published by: University of California Press
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HORNLE MACRO 175
1/18/00 4:15 PM
Distribution of Punishment:
The Role of a Victim’s Perspective
Tatjana Hörnle*
At first glance, the title of this article might create an

inaccurate impression; therefore, it seems appropriate to
start with a short clarification what the essay is not about.
Generally speaking, discussions of victim’s rights in the
field of criminal policy are connected with demands for
more punitiveness. Especially in the U.S., violent crimes
have been used as major issues in election campaigns (e.g.,
Willie Horton). More repressive criminal policies also have
been justified by focusing public attention on the fate of
individual victims (e.g., Polly Klaas).1 In Germany, the use
of extreme cases for immediate political purposes, such as
election campaigns, is less prevalent. But during the last
few years, victims and their families have increasingly
appeared in public, especially on television, and thus have
gained influence in the field of criminal policy. From a
psychological point of view, public expressions of individual
grief can function as a coping strategy that enables victims
and their families to verbalize emotional pain. Obviously,
however, emotions do not provide guidance in the field of
criminal law, and the exploitation of individual suffering
for political campaigns cannot be supported from a legal
viewpoint. Accordingly, it is not my aim to advocate more
punitive responses to crime or legal reasoning based on this
kind of public discussion.
To rely on a victim’s perspective in sentencing,
however, should not be equated with the political misuse of
emotions or the demand for harsher sentences. This article
does not focus on the politics of the victims’ rights
movement, but rather on methodological questions related
* Institut für Rechtsphilosophie und Rechtsinformatik, Ludwig-Maximilians-

Universität München; e-mail: <Tatjana.Hoernle@jura.uni-muenchen.de>.
1. See Lynne N. Henderson, The Wrongs of Victim’s Rights, 37 Stan. L. Rev.
37 (1985); Markus Dirk Dubber, Regulating the Tender Heart When the Axe Is
Ready to Strike, 41 Buff. L. Rev. 85, 124 (1993).
HORNLE MACRO 1/18/00 4:15 PM
176 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175
to sentencing. It conceptualizes the victim’s perspective as

a device to identify the appropriate relationship between
the severity of the offense and sentence length. I will not
rely specifically on legal sentencing provisions in Germany2
or the United States, but on more general concerns in crime
assessment. In order to make such assessments, it is
necessary for normative reasons and helpful for practical
reasons to take a victim’s point of view. Parts I and II of
the article address the question of why the seriousness of
the offense should be judged from a victim’s perspective. In
the following parts, I attempt to show that this approach
yields more precise standards for severity assessments
because it allows us to make more principled judgments
about the harm done and the relevance of attendant
circumstances.
The phrase “victim’s perspective” does not imply
basing sentencing on the preferences of the individual
person victimized by the offense. Her vindictiveness, her
empathy, her indifference are irrelevant. I do not advocate
the use of victim impact statements at sentencing.3 Such a
subjective approach lets emotions shape legal decisions. As
a result, sentences for similar offenses often vary
considerably depending on individual attitudes. Thus, a
subjective standard raises concerns about uniformity and
equity in sentencing. Instead, normative considerations
should define the victim’s viewpoint. Thus, the standard
for evaluating the impact of an offense on a victim should
be objective and should ask how a reasonable person in the
place of the victim would react to the offense. The interests
and considerations of such a person are important in
assessing the severity of the offense.
The distinction between victim impact statements and
a normative understanding of a victim’s viewpoint also
should be reflected in the use of language. Therefore, I
2. §§ 46-60 StGB [German Penal Code].

3. See Maureen McLeod, Victim Participation in Sentencing, 22 Crim. L.
Bull. 501 (1986); Donald J. Hall, Victims’ Voices in Criminal Court: The Need for
Restraint, 28 Am. Crim. L. Rev. 233 (1991); Henderson, supra note 1; Dubber,
supra note 1.
1999] DISTRIBUTION OF PUNISHMENT 177
refer to “a victim’s perspective” rather than “the victim’s

perspective,” as the latter can be easily confused with the
subjective assessments of the victimized individual.
I. THE THEORETICAL PREMISE: A REPROBATIVE ACCOUNT

OF LEGAL PUNISHMENT
My central thesis is that a victim’s perspective

facilitates the rational assessment of a crime’s severity.
This implies that such an assessment is essential for
sentencing. The most straightforward foundation for this
claim can be found in a desert-based theory of legal
punishment, according to which the severity of the crime
must be established in order to determine the severity of
the sanction. Only penal theories which reject the notion of
desert altogether and explain legal punishment only with
respect to (assumed) future benefits for the offender or
society do not need to develop methods to assess the
severity of crimes. But all theoretical concepts, which
include at least some retrospective elements, presuppose
the existence of methods to compare the gravity of criminal
conduct.4 It is not possible to analyze preventive versus
reprobative or mixed general justifications of punishment
here. Thus, I must limit myself to outlining briefly a
sentencing theory that emphasizes the reprobative function
of punishment.
The notion that the penal sanction encompasses more
than incarceration, that is, material deprivation or
deprivation of liberty, is a good starting point. The crucial
difference between a fine and a tax, or between compulsory
military service and imprisonment, lies in the fact that a
fine and imprisonment express society’s disapproval of the
4. The leading sentencing theory in Germany, the so-called

“Spielraumtheorie,” combines retrospective assessment of the offense
(“Bewertung der Tatschuld”) with considerations of crime prevention, which are
allowed to influence the sanction to a certain degree (“Spielraum”). The
retrospective element thus requires criteria to determine the gravity of an
offense, a task which has been neglected for a long time in the German literature.
See Tatjana Hörnle, Tatproportionale Strafzumessung (1999).
person’s criminal conduct. Conveying blame is an essential

element of legal punishment.5 The expressive feature of
punishment is widely acknowledged,6 and is an appropriate
response in the socio-cultural contexts of modern societies.
The alternative would be to view sanctions as deterrent
disincentives without any blaming features, comparable to
certain taxes that aim to regulate behavior by making it
expensive. When dealing with clearly reprehensible
conduct, a mere deterrent approach would, however, run
contrary to deep-rooted modes of reaction and
communication. Our ordinary interpersonal attitudes are
not compatible with a purely objective stance toward the
offender, but require the expression of disapproval in
reaction to her conduct.7
The next step in the argument points to the necessary
correlation between the amount of hard treatment and the
extent of the blame. In our tradition of criminal
proceedings, disapproval is expressed not as a separate,
formal act, but through the imposition of the sanction at
the end of the trial. In Feinberg’s words “[c]ertain forms of
hard treatment have become the conventional symbols of
public reprobation.”8 Blame and hard treatment are
5. See Joel Feinberg, The Expressive Function of Punishment, in Doing and

Deserving 98 (1970); R.A. Duff, Trials and Punishments 235 (1986) [hereinafter
Duff, Trials and Punishments]; R.A. Duff, Penal Communication: Recent Work in
the Philosophy of Punishment, 20 Crime & Just. 1 (1996) [hereinafter Duff, Penal
Communication]; Andrew von Hirsch, Censure and Sanction 9 (1993); Dan M.
Kahan, Punishment Incommensurability, 1 Buff. Crim. L. Rev. 691, 695 (1998).
6. For the German discussion, see Peter Noll, Die ethische Begründung der
Strafe 16 (1962); Heinrich Henkel, Die “richtige” Strafe 7 (1969); Karl-Ludwig
Kunz, Prävention und gerechte Zurechnung: Überlegungen zur normativen
Kontrolle utilitaristischer Strafbegründung 98 ZStW 826 (1986); Ulfrid
Neumann, Neue Entwicklungen im Bereich der Argumentationsmuster zur
Begründung oder zum Ausschluß strafrechtlicher Verantwortlichkeit, 99 ZStW
586 (1987); Wolfgang Frisch, Gegenwärtiger Stand und Zukunftsperspektiven der
Strafzumessungsdogmatik, 99 ZStW 366 (1987); Claus Roxin, Strafrecht AT 1 §
3/45 (3d ed. 1997); Heinz Schöch, Gutachten C zum 59 1992 Deutschen
Juristentag, München, at C75, C89; Nikolaos K. Androulakis, Über den Primat
der Strafe, 108 ZStW 309 (1996); Hans Heinrich Jescheck & Thomas Weigend,
Strafrecht AT 65 (5 th ed. 1996).
7. See Peter F. Strawson, Freedom and Resentment and Other Essays 4
(1974); von Hirsch, supra note 5, at 9.
8. See Feinberg, supra note 5, at 100.
therefore intertwined with the effect that the severity of

the sanction necessarily communicates the degree to which
the offender is blamed. Against this background, it would
be impossible, for example, to ascribe blame only to parts of
the sanction and to ground the remainder of the sanction in
preventative or deterrent considerations. It is logical to
conclude that the amount of punishment must reflect the
blameworthiness, i.e., the seriousness of the offense. If the
sanction is not proportionate to the severity of the crime,
the blaming feature becomes distorted.9
II. ASSESSING THE CRIME: A VICTIM’S OR THE

COMMUNITY’S PERSPECTIVE?
Assessing the severity of the crime is a crucial element

in the sentencing process. This raises the question of how
to rank different crimes. In order to establish the
determinative factors in a sentencing proceeding, a decision
must be made: Whose perspective is relevant? There are
two choices: either the impact of the crime on a victim
matters, or the impact on a collective entity matters. The
latter could be outlined differently. In the older German
literature, each offense harms the state; thus it follows that
crimes should be assessed by their detrimental effect on the
state’s interests.10 One could rephrase this notion to reflect
modern views by pointing to negative effects on the
community. In this way, the community would rank the
severity of a particular crime, just as modern German
literature emphasizes the damage to social or legal order
(“Sozial- oder Rechtsfriedensstörung”).11
9. See von Hirsch, supra note 5, at 15.

10. See, e.g., Ernst von Beling, Die Vergeltungsidee und ihre Bedeutung für
das Strafrecht 36 (1908).
11. See Ernst-Joachim Lampe, Das personale Unrecht 210 (1967); Hans-
Jürgen Bruns, Das Recht der Strafzumessung 153 (2d ed. 1985); Michael Köhler,
Über den Zusammenhang von Strafrechtsbegründung und Strafzumessung
erörtert am Problem der Generalprävention 51 (1983) [hereinafter Köhler, Über
den Zusammenhang]; Michael Köhler, Strafrecht AT 599 (1997); Bernd
Schünemann, Die Funktion des Schuldprinzips im Präventionsstrafrecht, in
Grundfragen der modernen Strafrechtssystems 191 (Bernd Schünemann ed.,
Obviously, a collective viewpoint is necessary when the

crime harms interests protected by the state. Examples of
such crimes include espionage, corruption, counterfeiting,
or crimes against the environment. It is characteristic of
such offenses that the wrongdoing does not harm specific
individuals. Counterfeiting, for example, is the production
of false bills. But this act does not, without more, inflict
financial harm on any individual.12 However, proponents of
a collective viewpoint do not limit its application to crimes
against collective interests, but extend it to crimes against
individuals. This version of a collective viewpoint will be
questioned.
The choice between a collective viewpoint and an
individual viewpoint has substantial practical
consequences. For example, any reference to collective
interests allows one to take cumulative effects into account.
Imagine a town frequented by groups of juveniles who play
noisy music and commit offenses like painting graffiti or
inflicting other minor property damage. Although each of
these incidents is not very serious, the accumulation of
petty offenses and nuisances can damage the community if,
as a result, the other inhabitants find themselves in a
situation of permanent distress and anxiety. When the
juveniles appear in court for small property damages, one
could, therefore, opt for the community perspective and
assess the offenses as more serious. The assessment of the
community and of a victim can differ in other ways as well.
If, for example, the offender has been a benefactor to the
community, the collective viewpoint may require a less
serious sanction than might a victim’s perspective.
There are two major objections to viewing crimes from
a collective viewpoint. The first is pragmatic and the
second goes back to the theoretical underpinnings of the
censuring feature of punishment.
A collective viewpoint is difficult to apply in practice
because it is impossible to measure the degree to which
1984); Reinhard Maurach et al., 2 Strafrecht AT, § 63/28 (7th ed. 1989).
12. § 146 I Nr. 1 StGB; Model Penal Code § 224.1(1)(b) (Proposed Official
Draft 1962).
crime disturbs the social and legal order. The legal and
social orders are empirical concepts that should be capable
of measurement. However, social order is a vague notion
that is difficult to operationalize. As it is not possible to
define a normal state of legal or social order within a
certain society, variations are beyond measurement. Thus,
such pseudo-sociological definitions only obscure the issue.
The community perspective is easier to handle, but
still raises important questions. First, who constitutes the
“community?” Defining a community is not difficult if the
community has clear-cut socio-geographical boundaries (if,
for example, the juveniles mentioned in the example above
annoy a village). But in most cases, the geographic and
attitudinal limits of a particular community are less
obvious. It is hard to divide with sufficient precision large
numbers of people living in the same general area into
subgroups cohesive enough to have a shared will. We
cannot rely on ordinary geographic divisions, for example,
Greenwich Village or TriBeCa in New York City. Such
areas are simply too large to constitute “communities” in
this sense.
Second, who constitutes the “community” within a
population with differing interests and opinions? Diversity
also exists in a geographically clearly defined village. What
if, in my vandalism example, only the elderly felt
threatened, while the majority of the adult population
viewed the juveniles’ behavior as a mere nuisance? In some
cases, this problem might be overcome by relying on an
“average member” of the community who is neither overly
sensitive nor tough. However, the problem will remain if
there are sharp divisions within the community, for
example, if one half loves loud music while the other half
prefers a quieter environment.
The community perspective is not only difficult to
employ, it is problematic for more fundamental reasons. To
elaborate, I return to the remarks about blame because
examination of the identity of the recipient of the censuring
message allows one to draw conclusions about the
assessment criteria. So far, we have not specified whom
the judge addresses when she expresses censure through

the sanction. The most obvious and straightforward
answer points to the perpetrator of the crime. His conduct
is blameworthy because he has intentionally injured
another person. The fact that censure is directed at the
offender is undisputed.13 Several authors have developed
more detailed concepts about how to utilize censure to
reform and reintegrate the offender. For instance, one
could try to encourage the offender to reflect on his crime in
the hope that he would accept blame, condemn himself, and
thus, modify his future conduct.14 The trial can be seen as
a means to shame the offender and to reintegrate him into
the community through this emotional process.15 However,
given the limited scope of this article, it is not possible to
examine whether it is realistic or appropriate to expect
such effects, nor is it possible to examine other reasons for
censuring the offender
Instead, I want to draw attention to another recipient
of the censuring message, the victim of the crime. This
aspect of punishment’s expressive features is mentioned in
the literature,16 but is not viewed as crucial, or as a starting
point for further reflections on a victim’s perspective in
sentencing. My thesis is that an important function of the
sentence lies in its message to the victim. The formal
disapproval embodied in the imposition of hard treatment
confirms that the victim has been wronged through the act
in question. The sentence contains a judgment about the
extent of the victim’s rights and about the demarcation
between her sphere and that of the offender. It signifies
that the act has infringed on the rights of the victim and
that the act is neither permissible nor justified by unusual
circumstances. Thus, the sentence recognizes that the
victim need not accept the offender’s conduct. It is not
13. See, e.g. Feinberg, supra note 5, at 100; Duff, Trials and Punishments,
supra note 5, at 236; von Hirsch, supra note 5, at 10.
14. Duff, Trials and Punishments, supra note 5, at 235.
15. John Braithwaite, Crime, Shame, and Reintegration 54 (1989).
16. Feinberg, supra note 5, at 104; Duff, Trials and Punishments, supra note
5, at 236; von Hirsch, supra note 5, at 10; Kahan, supra note 5, at 695.
sufficient to express disapproval to the general public (in

addition to the offender). The recipient with the greatest
interest in the declaration of wrongdoing is the person
injured through the crime.
This point seems rather obvious, but it tends to be
overlooked in a criminal justice system that has,
historically, restricted the victim’s role. From the earliest
focus of ancient German Law to the development of a
modern concept of criminal law, the role of the victim
diminished steadily as the older Germanic system of
compensation was replaced by the modern system of state
reaction to wrongdoing.17 The separation of penal
consequences from victim’s compensation played a critical
role in shaping the modern criminal trial in which the
victim participates only as a witness.18 Other essays in this
volume examine whether and to what extent a reversal of
this development might be desirable. The outcome does not
necessarily influence the argument made here. Even if one
favors the shift toward the replacement of compensation
with state punishment and the minimal influence of the
victim on the trial, it is still possible to consider the victim’s
interests in the communicative aspect of punishment. The
indisputable advantage of a criminal justice system lies in
the formalization and restriction of social control.19
However, this process does not require complete disregard
for the victim’s interests. Instead, restriction of the
victim’s power during the trial is balanced by the focus on
the victim’s rights in the final stage of the criminal trial.
Again, one must keep in mind that this is a normative
concept. To consider the victim’s interests is not to
conceptualize the trial as psychological treatment or to give
emotional support to the victim. Instead, I refer to a
17. See Eberhardt Schmidt, Geschichte der deutschen Strafrechtspflege 3 (3d

ed. 1965); Detlev Frehsee, Schadenswiedergutmachung als Instrument
strafrechtlicher Sozialkontrolle 16 (1987).
18. See Bernd Schünemann, The Role of the Victim Within the Criminal
Justice System: A Three-Tiered Concept, 3 Buff. Crim. L. Rev. 33 (1999).
19. See, e.g., Winfried Hassemer, Einführung in die Grundlagen des
Strafrechts 320 (2d ed. 1990).
formal endorsement of victim’s rights through the criminal

verdict. This may have the contingent effect of consoling
the individual victim, but the reasons for asserting the
victim’s rights go beyond the personal needs of the
individual victim.
The statement that censure not only communicates
disapproval to the offender, but also tells the victim that he
has been wronged, leads us back to the distribution
between collective and victims’ perspectives in the
assessment of offenses. The collective viewpoint may have
been appropriate when censure was directed only at the
offender and the general public, not the victim. However, it
would be inconsistent to recognize that the victim plays an
important role in the expressive aspects of the sentence but
to evaluate the criminal conduct that justifies the sanction
from a collective viewpoint. A victim’s perspective at the
sentencing stage affirms the role of the victim in the
communicative side of criminal proceedings. Thus, for both
practical and conceptual reasons, it is preferable to base
sentencing decisions on a victim’s perspective, instead of on
vague notions of community or legal order.
III. WRONGDOING AS THE KEY CONCEPT FOR THE

ASSESSMENT OF OFFENSE SEVERITY
Relying on a victim’s perspective clarifies issues that

have been treated rather superficially in traditional
sentencing doctrine. For this reason, it is useful to mention
a few distinctions in German criminal doctrine. The first is
the distinction between wrongdoing (“Unrecht”) and
culpability of the offender (“Schuld”). “Wrongdoing” refers
to the criminal act; its wrongfulness and its consequences
are judged from an outside perspective. Establishing
culpability, on the other hand, means evaluating the
offender’s personal deficiencies from an internal
perspective. Thus, the crucial determination is whether
wrongdoing can be fully attributed to the offender.20
20. For the distinction between wrongdoing and culpability, see, e.g., George
A victim’s perspective is relevant in assessing the

degree of wrongdoing. The judgment of wrongdoing is a
social one. It indicates borders between differing interests,
the interest of the victim in having her rights preserved
and the interest of the offender in exercising her liberty.
The formal distinction between wrongful and legitimate
conduct matters, but the qualitative judgment of “how
much wrongdoing” has occurred confirms the extent to
which the victim’s sphere has been violated.
“Wrongdoing” is occasionally equated with “harm.”
Andrew von Hirsch, for example, identifies harm and
culpability as critical elements on which calculations of
offense severity are based.21 But reference to harm, that is,
to the result of an intrusion, does not fully cover the range
of objective circumstances that influence the degree of
wrongdoing. Certain modes of acting do not affect the
victim but nevertheless can affect the judgment about the
offender’s conduct, for example, if an armed burglar was
lucky enough not to encounter anybody. A second
distinction in the German literature, between
“Erfolgsunrecht” and “Handlungsunrecht,” classifies the
circumstances of an offense and clarifies their relevance.
The second concept, “Handlungsunrecht,” cannot be
translated literally, but I will explain the difference.
“Erfolgsunrecht” refers to the negative consequences of the
criminal act; thus, the concept is analogous to harm. It is
the “Handlungsunrecht” that widens the perspective; it
denotes the wrongdoing of the act but not the act’s result.22
P. Fletcher, Rethinking Criminal Law 454 (1978); Albin Eser, Justification and
Excuse: A Key Issue in the Concept of Crime, in Justification and Excuse:
Comparative Perspectives 17 (Albin Eser & George P. Fletcher eds., 1987); Roxin,
supra note 6, at §7/51; Jescheck & Weigend, supra note 6, at 194; Bernd
Schünemann, Die Funktion der Abgrenzung von Unrecht und Schuld, in
Bausteine des europäischen Strafrechts 149 (Bernd Schünemann & Jorge de
Figueiredo Dias eds., 1995).
21. von Hirsch, supra note 5, at 30; Andrew von Hirsch & Nils Jareborg,
Gauging Criminal Harm: A Living-Standard Analysis, 11 Oxford J. Legal Stud.
1, 2 (1991).
22. For a discussion of this distinction, see Detlev Krauß, Erfolgsunwert und
Handlungsunwert im Unrecht, 76 ZStW 19 (1964); Hans-Joachim Rudophi, Inhalt
und Funktion des Handlungsunwerts im Rahmen der personalen Unrechtslehre,
In my opinion, a victim’s perspective is most useful

with respect to the “Handlungsunrecht.” Like any other
event, each offense can be described with an infinite
number of details; for example, the temperature at the
location, the time of the day, a description of the clothes the
actors wore, or the contents of the offender’s jacket pockets.
This listing might look odd at first, but courts and
commentators frequently cite aggravating circumstances
that raise additional questions about an offender’s
culpability. Should it matter that the offender was a
foreigner or, most important in practice, that he had
numerous prior convictions? Does the definition of crime
change when an act is committed by members of a very
sophisticated criminal organization like a gang, rather
than an unorganized group of offenders? Is it a greater
wrong to plan an offense carefully in advance? Is it
relevant that the offender carried tools (like a screwdriver)
that could be used to hurt people? In order to separate
relevant from irrelevant details, one must consider a
victim’s perspective. This process distinguishes which
circumstances characterize the wrongdoing and which will
be significant merely for preventative reasons. I will
elaborate on this argument in Part V.
Take, for instance, mitigating circumstances that can
be determined empirically. In German law, abnormal
mental conditions not only can excuse the offender,23 but
also are important for sentencing. The sentence can be
mitigated considerably when the offender’s ability to
recognize the wrongfulness of his conduct or his ability to
act according to this insight are substantially reduced.24
The victim does not, and, logically, cannot play a role in
determining whether the offender was mentally ill or
in Festschrift für Maurach 51 (Friedrich-Christian Schroeder & Heinz Zipf eds.,

1972); Jescheck & Weigend, supra note 6, at 239; Roxin, supra note 6, at § 10/88.
23. § 20 StGB.
24. This is most important in murder cases, which carry a mandatory life
sentence. See § 211 StGB. The sentence can, however, be reduced to the
mandatory minimum of three years imprisonment when § 21 is relevant. § 49 I
Nr. 1 StGB.
psychologically disturbed.
Some mitigating circumstances under German law are
based not on empirically measurable internal conditions
but on normative considerations. For example, an offense
committed to ward off present danger to life, health, or
liberty is excused.25 This excuse occasionally is said to
derive from an abnormal mental condition that leads to an
inaccurate assessment of danger.26 A straightforward
normative justification, however, which bases the excuse on
the general principle that one cannot be expected to avoid
illegal behavior in the face of immediate danger clearly is
preferable (Theorie der Zumutbarkeit).27 This principle can
be extended to other situations in which attendant
circumstances can mitigate a sentence.
The criteria for excuses and mitigations are not
influenced by a victim’s perspective. The normative
perspective requires the judge to place herself in the
position of the offender, that is, in the situation of an
endangered person. What matters is the internal conflict
the actor had to struggle with—the conflict between his
interest in self-preservation and his general interest in
obeying the law. The social conflict between the demands
of the victim and the offender has already been examined
on the level of wrongdoing. With respect to the narrower
question of culpability, the interests of the victim have no
specific relevance.
It is impossible to integrate aggravating circumstances
into the categories of justification and excuse. The
traditional German doctrine of “Schuld,” which has
dominated sentencing theory for a long time, relies on the
concept of “personal guilt,” reprehensible motives, and
attitudes sufficient to increase punishment.28 But this
25. See § 35 I StGB (necessity as an excuse).

26. See, e.g., Adolf Schönke et al., Strafgesetzbuch, vor § 32/111 (25th ed.
1997); Jescheck & Weigend, supra note 6, at 478.
27. See Andrew von Hirsch, Review Essay: Lifeboat Law, 4 Crim. J. Ethics 88
(1985); Eser, supra note 20, at 59; Günther Jakobs, Strafrecht AT 20/4 (2d ed.
1991).
28. See, e.g., Herbert Tröndle & Thomas Fischer, Strafgesetzbuch § 46/4 (49th
ed. 1999); Günter Gribbohm, Leipziger Kommentar § 46/4 (11th ed. 1995);
position is untenable because it rests on dubious

assumptions about the normative role of “Gesinnung” (an
old fashioned notion about having the appropriate
mentality) or bad character. Determining culpability
simply entails deciding whether the wrongdoing can be
fully attributed to the offender.29 If attribution is possible
and if there are no mitigating circumstances on this level,
the blameworthiness of the offender’s conduct is not a
function of the degree of his culpability. Culpability filters
all of the material from the prior level of inquiry (the
amount of blame is determined by the wrongdoing), or
moderates the amount of blame, but culpability should not
be cited as a reason to increase the punishment.30
IV. HARM (“ERFOLGSUNRECHT”) FROM A VICTIM’S

PERSPECTIVE
Harm is an important factor in sentencing practice.31

The elaborate German doctrine about disturbance of social
or legal peace (criticized above) is replaced by common
sense. Disturbing, however, is the lack of a general legal
theory about how to compare crimes with respect to the
harm done. To an extent, we can rank the severity of
crimes intuitively, as evidenced by the fact that despite all
the differences among legal systems, murder is generally
considered the most serious crime against an individual
and robbery is punished more severely than theft. But in
order to provide a rational basis for subtle distinctions, a
more principled approach is required. A victim’s
perspective offers a valuable tool to analyze intuitive
assessments of the severity of offenses against
Schönke et al., supra note 26, § 46/8.

29. Fletcher, supra note 20, at 454; Eckhard Horn, Systematischer
Kommentar § 46/41 (1995); Roxin, supra note 6, § 19/36; Christopher Erhard,
Strafzumessung bei Vorbestraften unter dem Gesichtspunkt der
Strafzumessungsschuld 162-63 (1992).
30. Eckhard Horn uses the metaphorical expression of a strainer to explain
the role of culpability in sentencing. See Horn, supra note 29.
31. See Hans-Jörg Albrecht, Strafzumessung bei schwerer Kriminalität 333
(1994); Margit Oswald, Psychologie des richterlichen Strafens 170 (1994).
individuals.32
The diversity of human interests and the resulting
diversity of harms make ranking crimes difficult. For
example, how can we compare a significant financial loss
and a sexual offense? A common criterion is necessary to
measure harm within a homogenous category. Andrew von
Hirsch and Nils Jareborg proposed the notion of a living
standard. Within this framework, the gravity of an offense
depends on its impact on conditions essential for the
victim’s quality of life.33 Because quality of life depends on
material support as well as on the integrity of certain
immaterial interests, this approach is useful in comparing
losses across different dimensions of human life. However,
for the reasons already mentioned, the criteria should not
be the individual victim’s personal preferences for a
meaningful life. Instead of a subjective evaluation, a
standardized, objective concept is required. Such a
standardized approach asks to what degree the harm
affects resources that are typically needed to achieve a
certain quality of life.34
In order to rank resources that influence the quality of
life, one must make normative judgments about the
relative values of interests and goods. Besides identifying
vital human interests and making assumptions about their
relative meanings, it is also useful to establish different
levels of quality of life. One then can rate the harm by
deciding which level is affected. If the intrusion diminishes
resources necessary for a high level of well-being, it is
much less serious than a crime that affects elementary
32. Although it is not possible to explore this topic in greater detail, it can be
assumed that such criteria are not without value even for crimes against
collective interests. The prohibition of such offenses cannot be completely
separated from human interests which would eventually, in the long run, be hurt;
thus, the assessment must at some point relate to the underlying human
interests.
33. See von Hirsch & Jareborg, supra note 21. Their central term is living
standard. As this term is widely used in an economic context referring to
affluence, it seems preferable to speak of quality of life.
34. See id. at 10.
human capacities required for a basic level of well-being.35

Von Hirsch and Jareborg identify four stages of quality
of life: mere subsistence (as the lowest level), minimal
well-being, adequate well-being, and finally enhanced well-
being. The most serious harm leaves the victim without
the most basic human capacities required for mere
subsistence.36 On a scale of harms corresponding to the
scale of different impacts on the quality of life, harm to the
condition of mere subsistence is the gravest harm (harm of
the first degree). Crimes involving the loss of capacities for
minimal well-being cause serious harm (harm of the second
degree); consequences for adequate well-being are upper-
intermediate harm (harm of the third degree). Lower-
intermediate harm is the result of conduct affecting
enhanced well-being (harm of the fourth degree), whereas
minor harm does not affect the means for achieving
enhanced well-being (harm of fifth degree), but leaves the
victim’s life unchanged.37
The main question is which human resources at each
of these four levels are required for life. Obviously, the
necessary assumptions about the significance of different
material and non-material conditions for the quality of life
are open to debate. However, it is preferable to make these
judgments explicitly, as this makes room for criticism and
refinement of the standards. Relying on intuition when
rating harms leaves the underlying assumptions
unanalyzed. A comprehensive discussion of human
interests and their role in establishing the quality of life is
not feasible here, but I do want to discuss some of the basic
parameters of this issue in the following parts.
The statement that physical integrity is the most
fundamental human interest will probably not provoke
much debate. Physical integrity is obviously critical to the
interest in staying alive. Wrongfully taking someone’s life
creates harm at the most serious level. But even if the
victim survives, the lowest level of quality of life
35. Id. at 17.

36. Id.
37. Id. at 28.
presupposes minimal physical and cognitive functions as

well. If the victim is permanently in a coma or completely
paralyzed, the harm is most grave (first degree harm). The
loss of functions essential for communication or for a
normal social life (paralysis of the legs or loss of hearing or
eyesight) still is compatible with a life at the level of mere
subsistence, but not with minimal well-being. Thus, such
injuries would be classified as serious harm, that is, harm
of the second degree.
The essential role of minimal physical functions is not
always clearly reflected in sentencing law. In German law,
the maximum penalty for an assault that leaves the victim
in a coma or completely paralyzed is lower than, for
example, the maximum penalty for robbery without
weapons.38 A victim’s perspective permits us to develop a
clear-cut position with respect to which offenses lead to the
most serious harm. In so doing, we can also rationally
analyze statutory sentencing ranges.
Other forms of physical harm range from upper-
intermediate harm (harm of third degree), for example,
when the injury was painful and the recovery required
months in a hospital, to minor harm (e.g., a slight slap in
the face).
Other non-material interests influencing the quality of
life are privacy and freedom from humiliation. This
explains why, for example, burglary of a private residence
is generally considered more serious than theft, even if the
financial harm is identical. Von Hirsch and Jareborg claim
that minimal well-being requires some degree of both
privacy and personal autonomy and that therefore the
humiliating component of a privacy violation raises the
offense to the level of a second degree harm.39 With respect
to privacy, this contention seems debatable. One could
argue that minimal well-being presupposes only some
degree of physical integrity, safety, and minimal comfort.
But even if one concedes the necessity of some private
38. See §§ 226 I Nr. 3 & 249 I StGB.

39. von Hirsch & Jareborg, supra note 21, at 18.
space for minimal well-being, it is hard to see how one’s

privacy could be violated with such long lasting effects that
a verdict of “harm of the second degree” would be
appropriate.
The situation is different for humiliation. Certain
types of personal humiliation and degradation have such a
profound impact on victims’ lives that these offenses are
not compatible with even minimal well-being. This insight
is particularly relevant to assessing the harm done by
sexual offenses. German criminal law views sexual self-
determination (“sexuelle Selbstbestimmung”) as a protected
value.40 But this notion does not grasp the full extent of
wrongdoing inherent in sexual offenses. Self-
determination is also the interest violated in other types of
criminal coercion.41 However, the harm done through grave
sexual offenses like forcible rape encompasses more than
the fact that the crime takes place against the victim’s will.
Crucial is the humiliation entailed in a forcible rape.
Forced intercourse subdues the victim in a way not possible
in other types of violations. Indeed, the only way in which
to justify the relatively long sentences for rape, as opposed
to other types of criminal coercion, is to analyze the harm
from the victim’s perspective.42
The impact of humiliating treatment depends, in part,
on how long its ill effects last. Being insulted can spoil
someone’s day completely, not only from the subjective
viewpoint of a very sensitive victim, but also from the
objective viewpoint employed here. If one looks back at the
incident a few months or years later, however, the impact
on the victim’s quality of life will, in all likelihood, be
negligible. In this vein, one could argue that many cases of
rape are humiliating, but ultimately short incidents that
are not comparable to, for example, the permanent loss of
40. See Wilfried Bottke, Sexuality and Crime: The Victims of Sexual
Offenses, 3 Buff. Crim. L. Rev. 293 (1999).
41. § 240 StGB.
42. von Hirsch and Jareborg argue that forcible rape impairs minimal well-
being and thus constitutes serious harm (harm of the second degree). See von
Hirsch & Jareborg, supra note 21, at 26.
eyesight. But this argument is not convincing. Certainly it

is necessary to evaluate the offense within a certain time
frame. In order to conclude that the crime influenced the
overall quality of life, the temporal perspective employed
must be longer than a day or a week. Von Hirsch and
Jareborg propose a middle-term perspective like a year.43
The impact of an offense like forcible rape is not equal to
the time it takes to commit the act, nor is it dependent on
tangible consequences like visible injuries. Instead, the
degree of harm can be determined by the amount of
emotional or mental damage the victim suffers. Rape
generally causes the victim profound psychological distress.
But this does not mean that all rape victims experience
such extreme distress. Instead, calculation of the degree of
mental or emotional harm refers to the typical impact of
this most serious form of humiliation. Even when the time
frame is increased to a year, the rape remains a relevant
incident because, typically, rape weighs heavily on the
mental well-being of the victim44 for a long time.
Financial losses are somewhat less varied than
offenses involving non-material damages. Crimes against
non-material goods can range from trivial harm to the most
serious (harm of the first degree)—or at least, in the case of
humiliation, grave harm (harm of the second degree). But
it is hard to see how a quality-of-life analysis could deem
pecuniary losses harms of the first or second degree. The
level of subsistence, or even minimal well-being, does not
presuppose material amenities beyond the basics (i.e., food,
housing, basic items of clothing, and furniture). Property
offenders do not usually take or damage these objects, nor
do crimes diminishing financial means (e.g., fraud)
typically leave the victim without such items.
An unusually severe financial loss might leave the
victim unable to obtain amenities commonly regarded as
necessary for adequate well-being. For example, the victim
might not be able to furnish her dwelling, buy a cheap car
43. Id. at 21.

44. See, e.g., Sandra Sutherland Fox & Donald J. Scherl, Crisis Intervention
with Victims of Rape, in Rape Victimology 232 (Leroy G. Schultz ed., 1975).
or new clothing, or pursue intellectual, cultural, or social

interests on a modest level (e.g., access to newspapers and
telephone). If, for example, fraud makes the victim
destitute, this could be an upper-intermediate harm (harm
of the third degree). But financial losses on such a scale
are very rare. Most cases of theft or burglary will only
involve minor harm (harm of the fifth degree) because the
loss of some consumer good or moderate sum of money
typically can be compensated without consequences for the
quality of life. Occasionally, lower-intermediate harm
(harm of the fourth degree) will occur when the offense
affects enhanced well-being, that is, when the victim loses
the financial means necessary to satisfy common consumer
needs, i.e., vacations and cars.
A quality-of-life analysis, therefore, leads to the
conclusion that a significant financial loss should not be
punished in the same way as forcible rape or bodily injury
affecting minimal well-being. However, if the overall
damage inflicted by the offender is high because he has
harmed many victims (e.g., a series of frauds or burglaries),
this factor ought to be taken into consideration.
Nonetheless, it is important not to blur the distinction
between this type of harm and the harm inflicted by killing
someone or putting someone into a coma. Therefore, the
harm caused by numerous offenses, each of which harms
the victim in a minor way, should not be equated with
harm of the first or second degree. However, it may well be
appropriate to treat minor harms that lead to a higher level
of overall harm as harms of the third category.
Judgments about material harm raise the question of
whether the objective approach is inappropriate. After all,
the financial background of victims can be very different.
This is especially true when the offense causes a great deal
of financial damage. The victim’s financial background
determines whether the loss of a specific sum of money, say
$100,000, will result in harm to adequate well-being or
enhanced well-being. If the victim is very affluent the loss
of $100,000 will have no influence at all on his quality of
life. A similar difficulty arises with respect to stolen goods
when the victim has no financial resources. While the loss

of an ordinary consumer good (e.g., a television set)
normally does not affect the quality of life, it is a factor if
somebody will be unable to replace the item. For these
reasons, one could argue that the impact of this crime on
someone with limited financial resources would be greater
than on an average person. One could thus argue that the
impact on the financial resources of the specific victim
matters more than the impact on an "average person."
As a general rule, the above model would not be
feasible. A fine-tuning of material losses relative to
victims’ financial background is difficult both in theory and
in practice. First, complicated calculations of the relative
value of money would be required. Disclosure of the
victim’s financial standing in each criminal trial could also
be problematic. While the first (theoretical) task could be
attempted, the latter consequence would entail a second
violation of victims’ rights, namely the right not to reveal
information about private issues unless it is absolutely
necessary. An objective analysis that examines the impact
on the life of a person with average financial standing is,
therefore, preferable. However, such an objective analysis
does not preclude taking a very unusual background into
account, provided it can be shown that the offender knew
about it. If the victim is very poor, the loss of goods,
ordinarily viewed as unimportant, can be viewed as an
aggravating factor in the sentencing process. More
problematic is the issue of whether the victim’s
extraordinary circumstances might function as mitigating
factors. Some German authors have answered this
question in the affirmative.45 Mitigation on these grounds
entails a judgment that the property of affluent owners is
somewhat less worthy of protection. Such a statement is,
according to the penological assumptions made here, also
addressed to the victim. The issue cannot be decided
definitively because resolution implies reflections about the
45. See Horn, supra note 29, § 46/100, 106; Axel Montenbruck, Abwägung und
Umwertung 48 (1989); see also BGHSt 34, 345 (352) [decisions of the German
Supreme Court, criminal matters].
just distribution of assets in society. It is sufficient to point

out that the reasons for aggravating and mitigating
sentences need not necessarily be identical.
V. THE CIRCUMSTANCES OF THE CRIMINAL ACT

("HANDLUNGSUNRECHT") FROM A VICTIM’S PERSPECTIVE
I have already mentioned that a victim’s perspective

clarifies which objective circumstances of criminal conduct
influence the degree of wrongdoing and which do not. In
this part, I will discuss some applications of this principle.
A. The Manner of Offending
Some circumstances of the conduct affect the harm

done. The concept of harm should not be restricted to
actual injuries, but should include the concrete
endangerment of the victim. If, for example, a bodily
assault endangers the victim’s life,46 it increases the harm.
The assessment of concrete endangerment is based on two
factors: first, the value of the endangered interest; second,
the likelihood of violation. If the conduct does not put a
specific victim in danger, and hence, does not harm an
identifiable other, but rather remains an abstract
endangerment,47 it is preferable, for systematic reasons, to
consider the conduct as part of a wrongdoing related to the
act (the “Handlungsunrecht”). The basic principles of
rating concrete and abstract endangerment are the same;
the degree of wrongdoing depends on the likelihood and the
gravity of potential damage. When a burglar carries a
weapon without using it, the wrongdoing is enhanced
because of the danger to the victim and any other persons
crossing the offender’s path. The wrongdoing is determined
by the kind of weapon (e.g., whether it is designed for
46. See, e.g., § 224 I Nr. 5 StGB; see also § 224 I Nr. 1 StGB (poisoning the
victim).
47. For the difference between concrete and abstract endangerment in
German doctrine, see, e.g., Jescheck & Weigend, supra note 6, at 263-64; Roxin,
supra note 6, § 10/122-123.
killing, like a gun, or is merely useful in an attack, like a

pocket knife), by the occurrence or likelihood of an
encounter, and, foremost, by the intent to use the weapon.
Abstract endangerment does not presuppose intent to
attack someone who resists the crime because the offender
might decide spontaneously to attack when the situation
heats up. But the degree of abstract endangerment is
significantly higher if the offender brings the weapon with
the intent to use it if needed.48
Besides increased endangerment, another
consideration is relevant from a victim’s perspective:
whether the conduct can be described as especially vicious.
This is the case when the offender exploits the sick or
disabled victim49 or when he assaults a victim after
creating a situation in which the victim feels safe.50
Traditionally, such circumstances were regarded as
aggravating because they presumably demonstrated the
cold character of the offender.51 Such reasoning is,
however, problematic, as the offender’s character neither
influences wrongdoing nor his culpability. As pointed out
above, any reference to character is not compatible with
modern definitions of culpability. But a victim’s
perspective permits a correlation between this kind of
mean spiritedness and wrongdoing. The common
characteristic in the examples is the victim’s limited ability
to defend her own interests. When the offender creates or
exploits such vulnerabilities, he affects the victim’s
assessment of the situation. For this judgment, it is not
necessary to refer to the character traits of the offender.
48. Another example of intensified wrongdoing is an assault by more than one

person. Such situations tend to be more dangerous for the victim, see StGB § 224
I Nr. 4 (joint bodily assault).
49. See § 243 I Nr. 6 StGB (theft exploiting the helplessness of another
person, an accident, or a dangerous situation for several persons).
50. See § 224 I Nr. 3 StGB (bodily assault through a treacherous attack).
51. See, e.g., Wolfgang Ruß, Leipziger Kommentar § 243/31 (11th ed. 1994).
B. The Offender’s “Criminal Energy”
The German literature on sentencing enumerates a

wide array of aggravating circumstances that supposedly
demonstrate the offender’s “criminal energy” (“kriminelle
Energie”).52 The phrase “kriminelle Energie” also has
practical relevance; it appears very frequently in German
sentencing decisions.53 This is one of the most problematic
phenomena in German sentencing practice and theory.
The word “energy” falsely suggests reliability and
epistemological dignity. It implies an entity that can be
easily measured on quantitative scales, and thus, seems to
guarantee rational sentencing decisions. In fact, the
opposite is true because the actual reasoning remains
fuzzy. The wording hides different considerations and
attributions of negative character traits, or suggests
preventative considerations for the treatment of offenders
perceived as dangerous. In some cases, increased
punishment can be justly attributed to intensified
wrongdoing.54
The uncritical use of the phrase “criminal energy”
tends to produce arbitrary and unprincipled outcomes.
Consider, for instance, the ostensible relation between
sentencing and the time of day when the offense was
52. Bruns, supra note 11, at 213; Franz Streng, Strafrechtliche Sanktionen
175 (1991); Gerhard Schäfer, Praxis der Strafzumessung 118-19 (2d ed. 1995);
Schönke et. al., supra note 26, at § 46/16; Tröndle & Fischer, supra note 28, at §
46/20.
53. See, e.g., BGH 1981 NJW 2204 [decisions of the German Supreme Court];
BGH 1982 NJW 2265; BGH 1983 StV 279; BGH 1986 StV 58; BGH 1987 StV 343
& 387; BGH 1987 NStZ 406; BGH 988 StV 148; BGH 1989 StV 198; BGH 1990
StV 494 (544); BGH 1991 StV 157; BGH 1991 NStZ 81; BGH 1993 NStZ 134;
BGHSt. 35, 1 (18); BGHSt. 36, 320 (321); BGHSt. 40, 331 (336); BayObLG
Bavaria, NStZ, 408 (1992) [decisions of the German court of appeals for selected
matters in Bavaria]; OLG Stuttgart, NStZ 76 (1985) [decisions of the German
trial court for selected criminal matters in Stuttgart]. I did not systematically
examine sentencing decisions; these citations are just some examples for the
mentioning of “criminal energy” which one has to note when reading decisions.
54. For a critique of “criminal energy” as topic for sentencing decisions see
Günther Stratenwerth, Tatschuld und Strafzumessung 22 (1972); Michael
Walter, Gedächtnisschrift für Hilde Kaufmann 504 (1986); Erhard, supra note
29, at 257.
committed. Some authors maintain that committing a

crime at night shows increased criminal energy.55 Others
argue that an offense committed in broad daylight
demonstrates the boldness of the perpetrator and thus, a
high level of criminal energy!56 Such nonsensical
arguments must be avoided. From a victim’s perspective,
the time of day as such plays no role in the severity of the
offense. There are, however, combinations of location and
time that can influence the assessment of wrongdoing, but
only when the offender exploits a specific vulnerability of
the victim. Such vulnerability can result from the victim’s
location at a place that is generally or sometimes deserted.
But to make this argument, a concrete analysis of the
situation is required; simply pointing to the time of the
offense is not sufficient.
Criminal energy also is cited to justify higher
sanctions when the offender planned the crime carefully
instead of acting spontaneously.57 From a victim’s
perspective, well-contrived preparation can be menacing
indeed, and thus, can constitute a violation of her sphere
when, for example, the offender spies on the victim in her
home to plan a subsequent attack. But to establish such an
impact on the victim’s life, one must focus on the specific
circumstances. If the planning occurred in the internal
sphere of the offender, that is, if he developed and changed
plans in his mind without actually touching the victim’s
sphere in the pre-offense stage, the wrongdoing is not
intensified.
Furthermore, “criminal energy” is often used to
explain increased sanctions for offenders who attempt to
conceal their actions after the offense is committed.58
55. Gribbohm, supra note 28, at § 46/111; BGH 1986 StV 58.
56. Bruns, supra note 11, at 180; Gribbohm, supra note 28, at § 46/111.
57. BGH/Dallinger 1974 MDR 544; BGH 1982 NJW 2264 (2265); BGH/Detter
1990 NStZ 177; Michael Walter, Läßt sich der Handlungsunwert an der
aufgewendeten “kriminellen Energie” ermessen? 1985 GA 208; Gribbohm, supra
note 28, § 46/83; Schäfer, supra note 52, at 118; Tröndle & Fischer, supra note 28,
§ 46/20; Schönke et al., supra note 26, § 46/16.
58. See, e.g., Schäfer, supra note 52, at 134; Schönke et al., supra note 26,
§ 46/16.
However, there is no connection between concealment and

wrongdoing from a victim’s perspective. The offender’s
conduct is relevant only with respect to the extent to which
the conduct or its attendant circumstances have
compromised the victim’s rights. The wrongdoing of the act
ends when the act ends. Arguably, the victim has an
interest in the criminal prosecution, and therefore, an
interest in seeing that the offender does not tamper with
evidence. But to avoid evidence tampering is only a
secondary interest which does not reflect the wrongdoing of
the primary offense. It is impossible to decide in this
article, as a general matter, whether the behavior of the
offender, which either facilitates or hampers prosecution,
should be rewarded or punished. The considerations
required for this discussion differ from those at issue in
assessing the seriousness of the underlying offense. They
address the appropriateness of prudential incentives and
disincentives in criminal trials as well as the relationship
between the state and the defendant and specifically, the
offender’s right not to incriminate himself.59
C. The Offender’s Organizational Status and Prior

Convictions
In German sentencing law, the organizational status of

the offender gains increasing importance. The legislature
justified several amendments to the German Penal Code in
terms of the need to fight organized crime.60 These bills
stiffened sanctions for many offenses when the offender is
either a member of a gang (“Bande”) or when his regular
source of income comes from criminal activity
(“gewerbsmäßige Tatbegehung”).61
59. See, e.g., Yale Kamisar et al., Modern Criminal Procedure: Cases,
Comments, and Questions 1103-04, 1449-53, 1574-98 (9th ed. 1999).
60. Gesetz zur Bekämpfung des illegalen Rauschgifthandels und anderer
Erscheinungsformen der organisierten Kriminalität (OrgKG) of July 15, 1992,
BGBl. I 1302; Verbrechensbekämpfungsgesetz of Oct. 28, 1994, BGBl. I 3186.
61. The stiffening of sanctions as a result of organizational status continues in
the newest extensive revision of the German Penal Code: Sechstes Gesetz zur
Reform des Strafrechts (6. StrRG) of Jan. 26, 1998, BGBl. I 164.
In order to discuss these amendments, one must

examine their underlying rationale. Stiffer sentences for
offenders motivated by profit or associated with organized
crime are justified when the offender’s background
influences the seriousness of the offense. It is difficult,
however, to find arguments to support such a thesis. From
a victim’s perspective, the organizational status of the
offender, as such, is irrelevant. There are, of course, many
situations when professionalism or the presence of a large
number of offenders determines the actual mode of
offending, as for example, when an attack is especially
dangerous. On average, moreover, professional criminals
perform more effectively; thus, the offenses they commit
tend to cause more harm. In considering the effects of
these types of crime, it is, however, unnecessary to examine
the causes of the harm or the dangerous conduct. If the
offender’s organizational background causes greater harm
to the victim, the intensified wrongdoing on its own
justifies a stiffer sentence. If, however, the offender’s
status had no impact on the victim, the wrongdoing is no
worse than that associated with an offense committed by a
perpetrator who is not organized or committing crime for
profit.
The newer German crime bills can only be rationally
explained on preventive grounds. These bills appear to
operate from the premise that organized or profit-oriented
criminals act more rationally, and thus, that they are more
prone to take potential costs into account. According to
this view, increased statutory sanctions can deter this type
of offender. The assumptions that underpin the anti-
organized crime movement, therefore, would have to be
based on empirical data.
Although these empirical assumptions cannot be
analyzed in detail at this point, they clearly deserve close
critical consideration. Research has not proved that
sentence length has a deterrent effect on offenders.62 The
62. See Matthew Silberman, Toward a Theory of Criminal Deterrence, 41 Am.

Soc. Rev. 442, 446 (1976); Herbert Jacob, Deterrent Effects of Formal and
Informal Sanctions, 2 Law & Pol. Q. 76 (1980), Raymond Paternoster & Leeann
hypothesis that organized criminals analyze costs and

benefits more carefully than the research subjects studied
is plausible, but needs to be tested. At any rate, the crucial
question of whether stiffer sentences for organized and
profit-oriented offenders can be justified on preventive
grounds should not be obscured by inappropriate
connections between wrongdoing and organizational status.
Even more problematic is the common practice of
increasing the sentence because of prior convictions. The
empty formula of “increased criminal energy” also appears
in this context.63 Again, it is not clear why prior convictions
should matter. The German Supreme Court occasionally
gives longer sentences for increased wrongdoing (increased
“Handlungsunrecht”), but these decisions are often handed
down without any rationale.64 The standard argument
points to increased culpability. The culpability argument,
however, fails as soon as one scrutinizes the traditional
argument that the offender’s personal background can
enhance culpability. This argument assumes that prior
convictions create inhibitions against further offenses.
Thus, to overcome these inhibitions (which presumably
grow with every conviction), is to act more culpably. But
this is certainly not a valid assumption. On the contrary, it
is more plausible that prior experiences with the criminal
justice system lower offenders’ inhibitions.65
It is also impossible to connect prior convictions with
wrongdoing. From a victim’s perspective, prior convictions
matter as little as the organizational status of the offender.
Some authors have argued that offenders with prior
Iovanni, The Deterrent Effect of Perceived Severity: A Reexamination, 64 Social

Forces 768 (1986); Raymond Paternoster & Leeann Iovanni, The Deterrent Effect
of the Perceived Certainty and Severity of Punishment: A Review of the Evidence
and Issues, 4 Just. Q. 173, 191 (1987).
63. See BVerfGE 50, 125 (134) [Decisions of the Federal Constitutional Court];
Karl Lackner & Kristian Kühl, Strafgesetzbuch mit Erläuterungen, § 46/37 a (23d
ed. 1999).
64. BGHSt 26, 64; BGH 1991 StV 64.
65. See Stratenwerth, supra note 54, at 16; Bernd Haffke, Rückfall und
Strafzumessung, in Grundfragen des modernen Strafrechtssystems 208 (Bernd
Schünemann ed., 1984); Erhard, supra note 29, at 67.
convictions have a specific duty not to offend again.66 In

discussing the education of children, one might argue that
repeated disregard for parental authority justifies
additional sanctions. But with respect to the relationship
between the state and its citizens, this argument is
premised on an authoritarian point of view that must be
rejected. From the liberal perspective, it is not possible to
justify a specific duty in addition to the general duty to
respect the rights of others.67
Concerns about crime prevention also fail to justify
recidivist premiums. While the offender’s organizational
status can lead to plausible hypotheses about crime
prevention through increased sanctions, this is not possible
with respect to prior convictions. It is very unlikely that
offenders with prior convictions are more effectively
deterred because they are more likely to calculate
rationally the costs and benefits of criminal behavior.
There is no basis in rehabilitation theory to support the
imposition of stiffer sentences on repeat offenders. Instead,
it seems more probable that increased punishment actually
accelerates the offender’s desocialization.68 Thus, the
widespread practice of increasing sentences for prior
convictions cannot be explained rationally.
VI. VIOLATION OF DUTIES AS AN AGGRAVATING FACTOR
Certain offenses in the German Penal Code presuppose

that the offender had certain duties with respect to the
victim, including the duty to look after someone’s property69
or the duty of a parent to his child (making a sexual
relationship an offense).70 In such cases, the degree to
66. See Andrew von Hirsch, Doing Justice 85 (1976); Köhler, Über den
Zusammenhang, supra note 11, at 604.
67. See Fletcher, supra note 20, at 464.
68. See Stratenwerth, supra note 54, at 16; Bernd Dieter Meier, Die
Strafzumessung bei Rückfalltätern in der Bundesrepublik Deutschland, in 2
Deutsche Forschungen zur Kriminalitätsentstehung und Kriminalitätskontrolle
337-38 (Hans Jürgen Kerner et al.,eds., 1983).
69. See § 266.StGB
70. See § 174 StGB.
which the victim depends on the offender and the nature of

the duty breached are relevant in measuring wrongdoing.
It is unclear whether duties that are not part of the
offense description can increase the wrongdoing of the act
(“Handlungsunrecht”). Traditionally, the courts have held
that a high public or professional position created special
duties to refrain from offending.71 More recent decisions
maintain that the offender’s profession is only relevant if it
has a “genuine relationship to the offense.”72 This,
however, leaves open the question of how one defines a
“genuine relationship.” Once again, the degree of
wrongdoing depends on the relationship between the
victim’s vulnerability and the offender’s professional duty.
Not every previous contact between offender and
victim creates enhanced vulnerability on the part of the
victim, but certain relationships involving personal trust
and confidence do. Professional relationships that require
protection of the victim create duties for the offender.
Exploitation of the victim’s lack of power in a professional
relationship intensifies the wrongdoing; for example, in the
relationship between a doctor and a patient, or a lawyer
and a client. If, however, the profession of the offender
only facilitates the commission of the offense, but the
offender has no explicit professional duties toward the
victim, professional status alone should not increase the
sentence. For example, a merchant who uses his business
front for property crimes usually has no special duty
toward the victim. Thus, the misuse of professional status
does not increase the wrongdoing. Accordingly, the
offender should not receive a stiffer sentence.
VII. ATTRIBUTION OF WRONGDOING TO THE VICTIM
In this part, I discuss the general significance of pre-

offense interactions between victim and offender. Some of
these interactions rule out the full attribution of
71. OLG Hamm, 1956 NJW 1849; BGH 1961 NJW 1591 (1592); OLG Hamm,
1957 NJW 1003; BGH/Dallinger, 1957 MDR 528.
72. BGH,1981 NStZ 258; 1982 Wistra 65; 1987 NJW 2686; 1988 NStZ 175.
wrongdoing to the offender. Instead, wrongdoing in these

cases must be partially attributed to the victim. Moreover,
these cases also clearly demonstrate why the subjective
view of the individual victim must be rejected in favor of a
normative, objective perspective. Obviously, the individual
victim will try to downplay her own role in the history of
the conflict. Thus, only an objective viewpoint will allow us
to reduce the offender’s blameworthiness in light of the
victim’s pre-offense behavior.
Cases in which a victim intentionally provokes an
attack (with the motive of harming the assailant through
criminal proceedings or hurting him in an act of false self-
defense) present some theoretical problems, but rarely
occur in practice. These cases resemble those in which the
“victim” consents to the criminal conduct. The provoking
“victim” wants to be harmed as a necessary, intermediate
stage in order to achieve his ultimate goal. Thus, the harm
cannot be entirely attributed to the offender. The
wrongdoing (the “Handlungsunrecht”) should, however, be
attributed to the assailant because he was not aware of the
victim’s motives. This outcome is similar to an attempted
crime. The assailant should not be blamed for the harm,
but rather for the wrongdoing associated with the act.
Therefore, the sentence for a provoked attack should be
treated in the same way as a sentence for attempt.
A small reduction in sentence is appropriate when the
victim wrongfully, but unintentionally, caused the
offender’s reaction. Such prior conduct could entail an
insult or any other offense that transformed the victim in
the first incident into the offender in the subsequent one.
If the victim in the first incident reacts in self-defense, that
is, if he reacts to an incomplete attack, he is justified.73
Two types of situations deserve comment: first, when self-
defense is no longer appropriate, but the victim of the first
incident retaliates and thereby becomes an offender, and
second, when the attack in the first incident does not
73. See § 32 StGB.
justify self-defense.74 In each case, the wrongdoing of the

second incident cannot be fully attributed to the offender.
The victim consciously takes a risk and therefore, must
accept part of the blame. In the second case, one could
argue in favor of a more significant sentence reduction
because the risk of over-reaction is inherent in an assault
(a quick response is necessary and errors therefore
understandable).75
More problematic are cases in which the victim
somehow contributes to the crime, but not through
intentional provocation or unlawful behavior. Traditional
German doctrine relies solely on the offender’s perspective
and mitigates the sentence when, from his point of view,
the victim encouraged or facilitated his actions.76 But this
solution deserves criticism for its one-sidedness. It ignores
the fact that blame is assigned not only to the offender, but
also to the victim. The judgment about wrongdoing
delineates the boundaries between the victim’s and the
offender’s rights. Reduction of a sentence because of the
victim’s behavior necessarily implies a statement about the
extent of the victim’s rights and obligations. Assigning
only partial blame to the offender must be explained to the
general public and justified with respect to the victim. If
the victim’s conduct preceding the offense was a rightful
exercise of her rights, it is inappropriate to attribute part of
the wrongdoing to her.
A sentence reduction is only justifiable when the
victim was required to behave in a certain way or to refrain
from certain types of conduct. In Germany, a movement to
restrict the scope of criminal law, the victims-doctrine
(“Viktimo-Dogmatik”), points to the victim’s ability to
74. For example, if the victim of the first incident could easily block a much
weaker assailant but chooses to use his gun. For the criterion of “necessary
defense,” see, e.g., Roxin, supra note 6, at § 15/42.
75. For these constellations, see Thomas Hillenkamp, Vorsatztat und
Opferverhalten 270 (1981).
76. See, e.g., Heinz Zipf, Die Strafzumessung 32, 68 (1977); Maurach et al.,
supra note 11, § 63/159; Franz Streng, supra note 52, at 177; Jescheck &
Weigend, supra note 6, at 887; Schäfer, supra note 52, at 110-11; BGH 1986 StV
149 (150).
protect her interests. Proceeding from the general

principle that use of the criminal law must be an ultimate
means (“ultima ratio”),77 this theory raises the question of
when an obligation to protect personal interests can
properly be ascribed to the victim. Obviously, the mere
factual possibility of avoiding victimization cannot suffice
because such an imperative would unduly constrain one’s
life choices. Car theft, for example, could be avoided by not
buying an expensive car, burglary by hiring guards on a
twenty-four hour basis. The possession of valuable goods
or the failure to arrange for constant surveillance cannot
justify attributing wrongdoing to the victim.
One way to establish an obligation to protect one’s
interests involves common social standards.78 This cannot
be the only precondition, however, as the victim may have
legitimate interests in performing certain actions, even if
most people do not perform them. Although it is not
common to walk in the park after dark, someone who works
during the day still has a legitimate interest in getting
exercise in the evening. An obligation to act in a certain
way or to omit certain acts necessitates a twofold standard.
The required conduct must be socially common and it must
be the kind of conduct that can reasonably be expected
because there are no seriously conflicting interpersonal
interests at stake. For example, it is common to lock the
door when leaving the house. Individuals can reasonably
be expected to lock their doors because the action requires
little effort and little time. Such an obligation, therefore,
does not unduly curtail the liberty of the victim. Thus, an
open apartment door that facilitates an offender’s decision
to steal property can function as a mitigating circumstance
because the victim forgot her obligation to protect her own
interests.79 By contrast, someone who prefers to sleep with
77. See Schünemann, supra note 18, at 40.

78. Manfred Maeck, Die Bedeutung des Opfers für die richterliche
Strafzumessung 114 (1982); Udo Ebert, Verbrechensbekämpfung durch
Opferbestrafung, 1983 JZ 639.
79. At the Buffalo Victims Conference, Michael Moore asked if, and on what
grounds, the sentence should be reduced when the burglary was not facilitated by
open windows, and thereby facilitates a burglary, could

plausibly claim a legitimate interest in having fresh air,
and thus avoid partial blame.
In practice, the issue of mitigation appears frequently
in sentencing for sexual offenses. Here, the same
considerations apply. It is not enough that the offender
sincerely claims to have been encouraged by the victim’s
behavior.80 Even if it could be established that most other
women would not behave in the way the victim did, this
information cannot justify making the victim partly
responsible for the incident. A woman’s dress and dating
habits are choices the victim has a right to make for
herself. Making judgments about the victim’s lifestyle
would unjustifiably split blame between offender and
victim.
VIII. CONCLUSION
A normative concept of victims’ interests allows more

principled sentencing decisions. Contrary to the general
political trend, an objective victim’s perspective—instead of
the subjective victim’s perspective—is not associated with
greater punitiveness. On the contrary, criteria for rational
sentencing protect offenders against irrational decisions
influenced by prejudices and emotional preferences. The
analysis of crimes from a victim’s perspective corresponds
to the role of blame in the criminal proceedings. The
a mistake of the victim but by someone else’s conduct, for instance, the door
having been left open by a previous burglar. In this case, one could reduce the
attribution of wrongdoing to the second burglar and partially blame the first
burglar for allowing other people to enter the apartment. But even if
circumstances beyond human action (like a earthquake) result in an open
apartment door, the reason for mitigating the burglar’s sentence would still be
diminished wrongdoing, but the mitigating circumstance would be attributed not
to someone, but to something else. But if the something else is a person, one has
to be more attentive to partial attributions because for persons, the judgment of
wrongdoing has social meaning.
80. Frequently, his claim to have been encouraged will simply be an attempt
to neutralize his own behavior by blaming the victim. See Gresham M. Sykes &
David Matza, Techniques of Neutralization: A Theory of Delinquency, 22 Am.
Soc. Rev. 664 (1957).
censure expressed through the imposition of hard

treatment addresses not only the offender and the general
public, but also the victim, and thus, should reflect a
victim’s point of view. Relying on a victim’s perspective
clarifies important issues, and is, therefore, important in
the development of a precise sentencing doctrine. First, the
harm inflicted by different crimes can be assessed, not by
intuitive perceptions of wrongdoing but by examining the
typical impact of an offense on a victim’s quality of life.
The second important consequence of a victim’s perspective
is that it provides a critical filter for other circumstances
surrounding the criminal act. Relying on this approach,
one can see how the manner of offending and the duties of
the offender can influence the degree of wrongdoing, while
the organizational status of the offender, prior convictions,
and “criminal energy” do not. Moreover, any partial
attribution of blame to the victim must be justified by
clearly establishing the victim’s obligations to protect her
interests.

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Distribution of Punishment: The Role of a Victim's Perspective

Author(s): Tatjana Hörnle

At first glance, the title of this article might create an

* Institut für Rechtsphilosophie und Rechtsinformatik, Ludwig-Maximilians-

176 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

to sentencing. It conceptualizes the victim’s perspective as

2. §§ 46-60 StGB [German Penal Code].

1999] DISTRIBUTION OF PUNISHMENT 177

refer to “a victim’s perspective” rather than “the victim’s

I. THE THEORETICAL PREMISE: A REPROBATIVE ACCOUNT

My central thesis is that a victim’s perspective

4. The leading sentencing theory in Germany, the so-called

178 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

person’s criminal conduct. Conveying blame is an essential

5. See Joel Feinberg, The Expressive Function of Punishment, in Doing and

1999] DISTRIBUTION OF PUNISHMENT 179

therefore intertwined with the effect that the severity of

II. ASSESSING THE CRIME: A VICTIM’S OR THE

Assessing the severity of the crime is a crucial element

9. See von Hirsch, supra note 5, at 15.

180 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

Obviously, a collective viewpoint is necessary when the

1999] DISTRIBUTION OF PUNISHMENT 181

182 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

the judge addresses when she expresses censure through

1999] DISTRIBUTION OF PUNISHMENT 183

sufficient to express disapproval to the general public (in

17. See Eberhardt Schmidt, Geschichte der deutschen Strafrechtspflege 3 (3d

184 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

formal endorsement of victim’s rights through the criminal

III. WRONGDOING AS THE KEY CONCEPT FOR THE

Relying on a victim’s perspective clarifies issues that

1999] DISTRIBUTION OF PUNISHMENT 185

A victim’s perspective is relevant in assessing the

186 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

In my opinion, a victim’s perspective is most useful

in Festschrift für Maurach 51 (Friedrich-Christian Schroeder & Heinz Zipf eds.,

1999] DISTRIBUTION OF PUNISHMENT 187

25. See § 35 I StGB (necessity as an excuse).

188 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

position is untenable because it rests on dubious

IV. HARM (“ERFOLGSUNRECHT”) FROM A VICTIM’S

Harm is an important factor in sentencing practice.31

Schönke et al., supra note 26, § 46/8.

1999] DISTRIBUTION OF PUNISHMENT 189

190 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

human capacities required for a basic level of well-being.35

35. Id. at 17.

1999] DISTRIBUTION OF PUNISHMENT 191

presupposes minimal physical and cognitive functions as

38. See §§ 226 I Nr. 3 & 249 I StGB.

192 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

space for minimal well-being, it is hard to see how one’s

1999] DISTRIBUTION OF PUNISHMENT 193

eyesight. But this argument is not convincing. Certainly it

43. Id. at 21.

194 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

or new clothing, or pursue intellectual, cultural, or social

1999] DISTRIBUTION OF PUNISHMENT 195

when the victim has no financial resources. While the loss

196 BUFFALO CRIMINAL LAW REVIEW [Vol. 3:175

just distribution of assets in society. It is sufficient to point

V. THE CIRCUMSTANCES OF THE CRIMINAL ACT