Legal Responses and Sentencing in Murder Cases – A Comparison of Law and Judicial Reactions in India and Germany

While there are huge cultural, social and socio-legal differences between India and Germany, the sentencing laws of the two countries show a couple of similarities. In India and Germany alike, the substantive law makes only little specifications for the sentencing process. There are no sub-statutory sentencing guidelines, within the range provided by the penal codes the courts have a wide discretion in the sentencing process. It is, however, interesting to see that the courts exercise their discretion in similar ways which can specifically be observed in murder cases. The article describes the legal framework which is applicable in murder cases in India and Germany and compares the judicial decisions in selected cases: hold-up murder, sexually motivated murder, domestic violence killings and honor killings. The comparison gives evidence of the communicative function of punishment. After a serious crime like murder the public – typically well informed by the media, agitated and highly troubled – will in both countries only be settled by a judgment considered as fair, just and proportionate. Peace under the law and internal security, however, do not seem to be dependent on specific forms of punishment. Capital punishment and life imprisonment appear as penalties which may be necessary reactions to murder in a given cultural context, but which are not indispensable to a criminal justice system.     

Euthanasia: a challenge for the forensic toxicologist

People die daily in the hospital. Mostly, they die because their illnesses were no longer treatable (natural death). Unfortunately, some people die an unnatural death, in particular, as the result of euthanasia. In contrast to the situation in most countries, in the Netherlands euthanasia is accepted by the courts under strict conditions. It can be very difficult for the legal authorities to establish whether a person has died from natural causes or from suicide, euthanasia, or murder. In addition to the pathologist and the lawyer, the toxicologist also has a number of problems in showing whether euthanasia has been carried out. These can consist of the following analytical problems: (a) interactions--the patients involved have frequently been receiving a large number of toxic and nontoxic drugs simultaneously; (b) identification--not all drugs administered are included in general screening procedures; (c) metabolites--a large number of metabolites may have accumulated toward the end of a long therapeutic regimen; and (d) determination--determination of quaternary muscle relaxants and their various metabolites, as well as other drugs, can be problematic. There are also toxicokinetic problems; because of poor kidney and liver function, low serum albumen, general malaise, and interactions between these factors and other drugs, the kinetics of a given drug can differ from normal. This makes it all the more difficult to determine whether the patient died from an accumulation of medication or from a so-called "euthanetic" drug mixture.(ABSTRACT TRUNCATED AT 250 WORDS)     

Setting euthanasia on the level

Summary The House of Lords recently set up a Select Committee on Medical Ethics to consider euthanasia and related medical decisions at the end of life. This followed widespread publicity surrounding recent cases, particular the trial and conviction of a doctor for the attempted murder of a consenting terminally ill patient, and the House of Lords' ruling that it is not unlawful to withdraw life-sustaining treatment from a patient in a persistent vegetative state. This paper suggests a perspective on some of the moral issues and conflicts which the House of Lords will no doubt consider. A legal structure in which medical euthanasia could be both permitted and controlled is then proposed involving two complementary mechanisms, a formal Euthanasia Notification procedure and a system of Euthanasia Tribunals.Senior Registrar in the Psychiatry of Old Age to the United Medical and Dental Schools and the South East Thames Regional Health Authority.     

Secondary victimization and the collective identity of crime victims: a qualitative analysis of Swedish crime news discourse

This article presents an analysis of how secondary victims of murder—in this context, the parents or close family members of a primary murder victim—are represented in Swedish crime news discourse. The study is based on a discourse analysis of media coverage of secondary victims, and statements made by them, in relation to four highly publicized murder cases during the last two decades. The analysis shows that portrayals of secondary victimization reinforce the conflictual character of victim–offender relationships in the news, but also limit the conditions for talking about the significance of social support, mediation and reconciliation for crime victims. News representations of crime victims become less clearly marked by the characteristics of the ‘ideal’ victim as secondary victims, and persons who are explicitly critical toward the legal system, claim victimhood. Furthermore, the identity of the crime victims’ movement as a collective becomes destabilized when the category of the victim is widened to include individuals whose interests are framed as subjective, rather than related to the needs of other crime victims or the general public. In sum, increased media focus on secondary victims may thus undermine the legitimacy of victim claims in public discourse.     

安乐死问题立法进展比较

无论在国内还是在国际上 ,安乐死问题都是一个新课题。本文主要对美国、澳大利亚和中国关于安乐死问题的研究与立法状况进行了比较研究。作者认为 ,安乐死立法应体现无危害、无痛苦、不违背个人意愿三个特征。     

医师收受药品回扣法律研究

现在医药领域里,回扣泛滥成灾,有着深刻的社会原因。医生收取回扣刑事上能否定罪,医生处方行为的性质定性以及受贿罪还是商业贿赂罪的定位在学界存在很大的争议。完善相关的法律制度,明确对医疗回扣的刑事民事行政责任的认定。寻求更好的法律救济,需要完善刑法立法,确定医生收取回扣刑法上的定罪量刑。建立医疗服务合同,加强行政监管,国家宏观调控的引导下结合市场经济的调节,保护患者合法利益,治理医疗腐败,解决医疗回扣问题势在必行。     

Female juvenile murderers: Biological and psychological dynamics leading to homicide

The increasing involvement of girls under 18 in violent crime has been a matter of growing concern in the United States in recent years. This article reviews the arrests of female juveniles for violent crime and then focuses specifically on their involvement in homicide. Arrests of girls for murder, unlike arrests for assault, have not risen over the last 30 years, suggesting that the dynamics that propel female juveniles to engage in lethal violence differ from those contributing to assaultive behavior by this same group. A review of the literature indicates that theories as to why female adolescents kill do not take into account recent scientific findings on brain development and the biological effects of early trauma in explaining serious violent behavior by girls. Three cases, evaluated by the authors, involving female adolescents charged with murder or attempted murder, are presented. The authors focus on the biological and psychological dynamics that help explain their violent behavior. They discuss the effects of insecure attachment and child maltreatment, and trace a critical pathway between these early experiences and future risk of violent behavior. The dynamics of child maltreatment in fostering rage and violence are discussed thereafter in terms of offender accountability. The article concludes with a discussion of treatment and recommendations for future research.     

Private thoughts of public representatives: assisted death, voluntary euthanasia and politicians

Assisted death and voluntary euthanasia have received significant and sustained media attention in recent years. High-profile cases of people seeking assistance to end their lives have raised, at least in the popular press, debate about whether individuals should be able to seek such assistance at a time when they consider their suffering to be unbearable or their quality of life unsatisfactory. Other recent developments include a number of attempts to legislate on the issue by the minor parties in Australia and the successful enactment of legislation in a few overseas jurisdictions. However, despite all of the recent attention that has focused on assisted death and voluntary euthanasia, a discussion of the adequacy of existing laws has not made it onto the political agenda of any of the Australian State or Territory governments. This is in spite of the fact that the private views of the majority of our elected Members of Parliament may be supportive of reform. This article explores the role of politicians' views and, as a case study, considers the opinions expressed by a number of Queensland Members of Parliament. In light of the views of these politicians and those of members of the public, as well as considerations arising from current medical practice, the article argues that there is a need for open political debate on assisted death and voluntary euthanasia. The article also suggests ways that such a debate may be achieved while minimising any political impact on governments that are prepared at least to consider this issue.     

Psychological profiling of sexual murders: an empirical model

Psychological profiling represents the investigative technique of analyzing crime behaviors for the identification of probable offender characteristics. Profiling has progressively been incorporated into police procedures despite a surprising lack of empirical research to support its validity. Indeed, in the study of sexual murder for the purpose of profiling, very few quantitative, academically reviewed studies exist. This article reports on the results of a 4-year study into Australian sexual murders for the development of psychological profiling. The study involved 85 cases of sexual murder sampled from all Australian police jurisdictions. The statistical procedure of multidimensional scaling was employed. This analysis produced a five-cluster model of sexual murder behavior. First, a central cluster of behaviors was identified that represents common behaviors to all patterns of sexual murder. Next, four distinct outlying patterns--predator, fury, perversion, and rape--were identified that each demonstrated distinct offense styles. Further analysis of these patterns also identified distinct offender characteristics that allow for the use of empirically robust offender profiles in future sexual murder investigations.     

医药“回扣”、“红包”的罪与非罪之辨

借医疗活动收受＂回扣＂和＂红包＂行为的法律性质一直存有争议。本文结合案例分析,从商业贿赂罪的立法历程视角对医药＂红包＂＂回扣＂的罪与非罪进行了阐述,同时针对回扣的不同形式进行了法理区分。     

Reduced punishment in Israel in the case of murder: bridging the medico-legal gap

The psychiatrist's assessment of criminal responsibility of an accused in court for an act of crime has always been a matter of great difficulty. In 1997, clause 300a was incorporated into the Penal Code of Israel, thereby permitting a more lenient punishment for murder than mandatory life imprisonment. The clause includes the definition of what is meant by "severe mental disorder" and "significantly restricted capacity" by the defendant to understand the criminal nature of his or her act and to refrain from committing it. Usage of the concepts "disorder" and "significantly restricted capacity" in addressing the issue of diminished responsibility of the mentally ill is new to the Israeli legal code. The emergence and evolvement of the above concepts are presented through a historical review of the Israeli encoded law concerning mental illness, analyzed from a psychiatric perspective.     

安乐死的民法学思考——亦谈安乐死的合法化问题

关于安乐死问题学者多是从哲学、宗教、伦理、医学等诸方面进行研究,而较少从民法基本理论角度进行分析。本文拟尝试以法益分析的方法从民法学之生命权和人格尊严权角度对安乐死做一初步考量。并在此基础上提出选择安乐死是自然人的一项天然权利,应给安乐死合法地位。     

Why a Criminal Prohibition on Sex Selective Abortions Amounts to a Thought Crime

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime.     

Public Good, Private Protections: Competing Values in German Transplantation Law

Organ transplantation has become almost routine practice in many industrialized countries. Policy, ethical, and legal debates tend to center on fairness of allocation rules or alternatives to promote greater numbers of donations. There are also certain beliefs about the use of bodily materials that are often presumed to be homogenous across Euro–American societies. In Germany, however, the idea of using the bodies of some for the good of others, and the right to proclaim some bodies dead for large–scale medical and political purposes is highly charged. This is due to the historical context of medical experimentation, selection, and euthanasia under National Socialism, and the former East German socialist policies which intervened in the private lives and bodies of citizens. This article is based on an ethnography of organ procurement practices during the period when German policymakers struggled with writing a transplant law. Active public resistance revealed deep concern about state intervention in private matters and amplified the growing unrest over definitions of moral community in a changing, post–reunification society. The article shows how public disputes about health policy become a way through which societies deal with other social conflicts.     

Non-voluntary passive euthanasia: the social consequences of euphemisms

Non-voluntary passive euthanasia, the commonest form of euthanasia, is seldom mentioned in the UK. This article illustrates how the legal reasoning in Airedale NHS Trust v Bland contributed towards this conceptual deletion. By upholding the impermissibility of euthanasia, whilst at the same time permitting 'euthanasia' under the guise of 'withdrawing futile treatment', it is argued that the court (logically) allowed (withdrawing futile treatment and euthanasia). The Bland reasoning was incorporated into professional guidance, which extended the court's ruling to encompass patients who, unlike Anthony Bland, were sentient. But since the lawfulness of (withdrawing futile treatment and euthanasia) hinges on the futility of treatment, and since the guidance provides advice about withdrawing treatment from patients who differ from those considered in court, the lawfulness of such 'treatment decisions' is unclear. Legislation is proposed in order to redress the ambiguity that arose when moral decisions about 'euthanasia' were translated into medical decisions about 'treatment'.     

大陆首例QQ号码盗窃案的法律适用探讨

通过对我国大陆首例QQ号码盗窃案的法律适用问题的分析,指出在罪刑法定原则下,对此类案件以盗窃罪论处缺少充分法律依据,建议通过完善计算机犯罪、侵犯通信自由罪以及建立对虚拟财产独立的法律保护体系,来应对此类新型犯罪。     

Democratization Processes and Homicide Rates in the Balkan Region,Bulgaria and Romania

The transition of countries from an autocratic to a democratic regime is a complex process characterized by big political, social and economic changes. This process is usually accompanied by an increase in violent crime rates which has been investigated by a large number of studies in the last decades. A special role in this analysis is played by the studies on the former communist countries, especially the ones that stress the relationship between post-communist regimes and the exponential rise of violent crime rates experienced in their transition. The majority of these studies have tried to explain the violent crime booms, but no research empirically tested if violent crime is willing to decrease as democracies consolidated. According to one of the most recent studies by Alvazzi del Frate and Mugellini, the Western Balkan region and a large number of “Non-Western” countries have recently experienced a drop in their homicide rates which has not been empirically analysed yet. This article aims at fulfilling this lack of knowledge by empirically analyzing eight countries of the Balkan region, Bulgaria and Romania. The main hypothesis is that, in terms of reduction of violent crime, there is a benefit in shifting from a transitional to a more democratic regime in post-communist countries. Data on Polity score and homicide rate from 1995 to 2011 were collected to conduct a fixed effect panel data analysis on the level of democracy and violent crime in the Balkan region, Bulgaria and Romania confirming a negative association between the two variables.     

Diagnostic values of polysomnography in forensic medicine

A man accused of a first-degree murder of a two-year-old girl claimed that he had not been conscious during the time of the alleged murder. The possibility that he may have committed the crime while "sleepwalking" was raised. The forensic psychiatrist looked to the sleep disorders facility to conduct polysomnographic investigation of the accused in order to investigate the possibility that he had a parasomnia. Overnight sleep recordings with video surveillance carried out for two consecutive nights showed no evidence of parasomnia. On the basis of the full assessment, the final report of the forensic psychiatrist did not support a legal defense of non-insane automatism and "sleepwalking" was withdrawn as a possible defense by the lawyer of the accused.     

Juvenile Justice in Scandinavia

The main issue is the legal protection of children and juveniles suspected of or convicted for crime. The age of criminal responsibility is 15 years in the countries concerned. Particular juvenile justice systems do not exist in Scandinavia. There are, however, exceptions from the general system in order to maintain needs, interests and rights of children and juveniles. Some common characteristics are described, for instance diversion of juveniles from prison into social welfare measures and the prohibition of placing children in jail. Individual characteristics are pointed out as well. Introduction of secure social institutions as an alternative to imprisonment in Sweden and Denmark is one, mediation processes with children as parties in Finland and Norway is another. It is argued that from the point of view of legality the demands for legal rights are of greatest importance in prosecution and punishment matters, whereas social welfare support is not to the same degree concerned about such questions. Furthermore it is argued that in spite of good intentions the Scandinavian countries challenge the UN Convention on the Rights of the Child, by not definitely prohibiting the possibility of a juvenile serving a prison sentence together with adults. It is stated that the distance between constructive pragmatism and destructive loss of principles as legality, equality and proportionality may be short. Crime trends are not linked to the politics: there is no relation between crime rates and political attention to crime. Juvenile justice has increasing political attention these years while the crime rates tend to be stable. In relation not solely to the economy and the Convention but first and foremost in the interest of children and juveniles more thought should be given to scientific experiences about early and appropriate prevention.