Sex crime legislation: Proactive and anti-therapeutic effects

Therapeutic jurisprudence may have its major role within law practice, but analysis of the law from a therapeutic perspective is a task that should not be neglected; how a piece of legislation is designed and formulated certainly influences the therapeutic outcome of a legal process. This article uses sex legislation as an example to demonstrate how the old rape law based on coercion has anti-therapeutic effects on rape victims. If the law requires resistance, it implies that a woman is sexually available until she resists physically, resulting in an attitude that a woman reporting rape without injuries should be mistrusted. This mistrust of the victim and the victim's attendant feelings of self-blame aggravate the victim's trauma. On the other hand, a modern rape law based on lack of consent gives the signal that a woman is not available until she has given her consent, resulting in a different starting position for the investigation. Since the will of the victim must be respected, the victim herself must be respected in the legal process. Furthermore, being able to tell one's story in a respectful atmosphere can be more important for the well-being of the victim than the outcome of the reported case.     

The emotional witness effect: story content,emotional valence and credibility of a male suspect

Abstract

Building on previous research which identified alcohol as the drug of choice for facilitating sexual assaults, this paper analysed 93 rape cases reported to the police in which the victim was under the influence of drugs/alcohol when the assault occurred. The aim was to explore what substances victims consumed to become incapacitated and who induced the state of incapacity. The degree of pre-planning suggests that the offender could be described as opportunistic or predatory. Findings demonstrated that the majority of rapes (coming to police notice) in which alcohol or drugs are implicated, are circumstances where the victim has self-intoxicated through alcohol consumption. There were relatively few cases in which drugs had been administered surreptitiously. The analyses successfully identified differences between rapes that occur when the victim is intoxicated or drugged according to how she consumed that alcohol/drug and what kind of alcohol/drugs she had consumed. The concept of negotiative space is offered as a potential theoretical explanation. The findings are discussed in the light of this and recommendations for crime prevention are made.     

Sentencing in child sexual assault cases: factors influencing judicial decision-making

Abstract

To date, there has been limited examination of variables that influence sentencing in child sexual abuse cases. This study examines the extent to which offence characteristics (such as the number of offences, number and age of victims), the behaviour and perceived credibility of the victim impact upon both sentence length and the setting of earliest parole dates. Analyses conducted using data from 66 adjudicated cases of child sexual assault from the County Court of Victoria, Australia revealed that longer sentences were handed down to offenders who had perpetrated multiple offences, or who had committed offences against younger children. Lower levels of victim credibility were associated with shorter sentences and earlier parole dates for offenders, which were also associated with the presence of more harmful behavioural indicators of abuse. The findings are discussed regarding the importance of presenting evidence about the behaviour of victims following sexual abuse in criminal trials.     

Recording of offences on police domestic violence call outs

ABSTRACT

Due to new legislation passed in 2011, Finnish police have been legally obligated to record and investigate all assaults, including petty assaults, occurring in close relationships. Referred to as domestic violence (DV), these assaults can be prosecuted even without victim consent. Much like pro- and mandatory arrest policies, this reform was aimed at decreasing victim and police discretion, based on the assumption that recording and preliminary investigation of every DV incident would help prevent further violence. Comparison between police call outs and the number of offences indicate that in reality not every DV incident is recorded. Using Police and Emergency Call Database data merged with 410 police officer survey responses, the current study presents the first empirical results on legal and extra-legal factors associated with recording DV as an offence in Finland. Factors explaining non-recording are discussed based on police officers’ free-text comments, and implications for policy and practice are presented.     

What constitutes a “reasonable belief” in consent to sex? A thematic analysis

Abstract

The prosecution of rape frequently requires a jury to decide whether the defendant reasonably believed that the complainant consented to sexual intercourse, thereby assuming a shared understanding of what constitutes a “reasonable belief in consent”. This study provides a thematic analysis of interviews with 18 university students, studying in London, UK, to explore their perceptions of “a reasonable belief in consent” when considering other people's behaviour. The findings suggest that whilst these participants rejected many stereotypical ideas in judging reasonable belief in consent, the discussion regarding vulnerability, responsibility and the consumption of alcohol was less clear-cut. Discussions frequently sought to avoid directly blaming the victim for being raped, but would instead blame her for getting drunk or otherwise “allowing” herself to become vulnerable. The implications of these findings for the prosecution of rape and wider public education are considered.     

自杀的认定及其相关行为的刑法评价

刑法中认定自杀有主客观两方面要求。在主观方面,被害人不仅应当认识到并且意欲死亡结果发生,而且必须自愿地、也即自主决定地选择了死亡。对于自愿性的判断应当以有效承诺的主观要件为标准。重大的动机错误同样导致不能成立自杀。此外,被害人还必须客观上事实性地支配着直接导致死亡的行为,在将不可逆转地造成死亡结果的最后关键时刻自己控制着事态的发展。自杀本身并非刑事不法行为,教唆或帮助自杀、对自杀者不予救助或者过失导致他人自杀等自杀相关行为也不应受到刑事处罚。     

Credibility of the emotional witness: A study of ratings by police investigators

Abstract

Credibility judgments by police investigators were examined. Sixty-nine investigators viewed one of three video-recorded versions of a rape victim's statement where the role was played by a professional actress. The statements were given in a free recall manner with identical wording, but differing in the emotions displayed, termed congruent, neutral and incongruent emotional expressions. Results showed that emotions displayed by the rape victim affected police officers’ judgments of credibility. The victim was judged as most credible when crying and showing despair, and less credible when being neutral or expressing more positive emotions. This result indicates stereotypic beliefs about rape victim behavior among police officers, similar to those found for lay persons. Results are discussed in terms of professional expertise.     

Trends of indecent images of children and child sexual offences between 2005/2006 and 2012/2013 within the United Kingdom

Abstract

Little is known about the trends of indecent images of children (IIOC) offences, as UK criminal justice figures are unavailable within official crime data. This study aims to explore the rates of conviction and the relationship between IIOC offences and child sexual abuse offences from 2005/2006 to 2012/2013. The results indicated a continuing increase in offences of take, permit, distribute IIOC, rape of a child under 13, sexual activity of child under 16 and abuse of children through prostitution or pornography. Six out of a possible 17 correlations were significant, with the strongest correlation found between take, make, distribute IIOC and rape of a female under 13. Explanations for the findings are discussed and the utility of comprehensive prevalence figures for different stakeholders involved in addressing this crime issue.     

Social perception of rape victims

Since 1975, 40 states have enacted “rape shield” statustes which limit the admissibility of a rape victim's prior sexual history in court. These reforms have assumed that jurors regard prior sexual history evidence as much too probative of a victim's credibility and moral character, and that such perceptions have a prejudicial impact on the outcome of the jury decision process. The present research adopted an attributional analysis in order to examine the extent to which the types of legal reform affect social perception of the victim as well as the conviction rate in a videotaped consent defense rape trial. A large-scale jury simulation experiment was conducted with qualified jurors from the Minneapolis-St. Paul metropolitan area. Jurors either viewed an Improbable or Probable Likelihood of (victim) Consent version of the trial, with admission of prior sexual history evidence governed by one of three types of exclusionary rules. The results lend credence to the reformist contention that a rape victim is “on trial” along with the accused. Jurors were reluctant to convict when any testimony about prior sexual history was introduced. Moreover, jurors' close scrutiny of the victim's credibility and moral character was directly related to the conviction rate. Only the most restrictive evidentiary rule, when applied to an Improbable Consent case, curtailed the inference of victim consent, enhanced victim credibility, and increased the likelihood of conviction. Some of the legal and attributional implications of these findings were discussed.     

Developing a therapeutic environment for boys in secure settings who have sexually offended

Abstract

The role of secure units in helping sexually abusive adolescent boys to change their behaviour and attitudes is examined. The problems presented by 23 adolescent sex offenders at Glenthorne Youth Treatment Centre were used to identify issues for management and treatment. These boys had committed a variety of non-sexual offences, and were responsible for 691 recorded crimes. Many had committed violent offences and had emotional, educational, relationship and substance-abuse problems. In contrast to the situation in community settings, the use of offence-focused groupwork and individual psychological therapy is limited in secure units. Many of these boys are not suited to this kind of work, or are not yet ready to benefit from it. Secure units also have difficulty resourcing these types of intervention. Nevertheless, the secure unit environment can be organised and structured to effect changes in behaviours and attitudes associated with sexual offending. Attention should be given to particular aspects of residential practice, including anti-discriminatory practice, organisational values, establishing behavioural boundaries, challenging unacceptable behaviour and language, reinforcing appropriate behaviour, encouraging interpersonal problem-solving, providing effective supervision based on an evaluation of risk, and education to raise victim awareness and respect for others. Liaison with community programmes for sexually abusive adolescents should be encouraged.     

Sexual assault nurse examiners' perceptions of their relationship with doctors, rape victim advocates, police, and prosecutors

In response to the negative and inefficient treatment of rape victims by emergency room personnel, the first Sexual Assault Nurse Examiner (SANE) programs began in the late 1970s. While SANEs, doctors, rape victim advocates, police officers and prosecutors work together to ensure the most comprehensive and sensitive care of rape victims, they all have very different roles and objectives. This research explores SANEs' perceptions of their relationships with other professionals who treat or interact with rape victims. Data from interviews with 39 Sexual Assault Nurse Examiners from four East Coast states indicate positive relationships are marked by open communication, respect shown towards SANEs as well as rape victims, and a sense of appreciation among SANEs. On the contrary, negative relationships result when SANEs believe police treat victims poorly, when advocates overstep boundaries and question SANEs about evidence collection or the exam, and when prosecutors fail to properly prepare them to testify during a trial.     

Different Paradigms in the 2007 and 2019 Definitional Reforms of Sexual Offences Under the Thai Penal Code: A Unique Development

This article analyses the definitional reforms and re-categorisation of sexual offences under the Thai Penal Code in the period of 13 years, namely, the 2007 and 2019 amendments. The incidents are of uniqueness as the 2007 amendment shared much resemblance with jurisdictions that have departed the original meaning of rape and attempted to re-conceptualise sexual offences, whereas the 2019 amendment shared much similarities with jurisdictions that decided to retain the original meaning of rape and categorise other serious sexual offences in other names. The article argues that, apart from accounts based on criminal law principles, the two definitional revisions had been carried out in the environments of different legal culture and social values in the Thai legislative bodies. It appears that the 2007 amendment followed a feminist perspective that emphasises the harm of sexual offences to bodily/sexual integrity as a state for individuals to realise their personhood, while the re-categorisation of sexual offences in the 2019 amendment (1) suggests a greater role of the feminist perspective in another camp that views penile-penetration inherently differs from non-penile penetration and (2) implies that the law continues, to a certain extent, regulating sexuality since the 2019 amendment used the reason of “naturalness” of sexual intercourse to distinguish between penile penetration and non-penile penetration.

     

“How an Ordinary Jury Makes Sense of it is a Mystery”: Barristers’ Perspectives on Rape,Consent and the Sexual Offences Act 2003

The Sexual Offences Act 2003 introduced significant reforms to the offence of rape, amid concerns regarding the low reporting and conviction rates for rape. One of the key aims of the Act was to improve the law relating to consent, in order to assist a jury in their decision making process. In addition, disquiet had been expressed with regards to the subjective nature of the mens rea of rape. Consequently, the 2003 Act reformulated the law so as to introduce an objective test. This article discusses the findings of a qualitative research project undertaken with 14 Barristers in the North West of England, in order to investigate counsels’ opinions regarding the 2003 reforms. Drawing upon data collected from semi-structured interviews, the article examines barristers’ perspectives with regards to the definition of consent, the ‘consent presumptions’, and the reformulated mens rea. In conclusion, it will be argued that while the barristers were not overly optimistic about the reforms introduced by the 2003 Act, they were also opposed to further reform to the substantive law and increased jury directions. Barristers argued that the law relating to rape should remain as simple as possible.     

The Case for a Rational Reconstruction of Consent in Criminal Law

This article argues for consistency in criminal law and the need for 'rational reconstruction' of the law where necessary to achieve this. It focuses Parliament's failure to respect the need for consistency by passing a statutory definition of consent in the Sexual Offences Act 2003 which appears to apply only to sexual offences. As a result, the law on consent risks being a patchwork of statute and ad hoc case law, without any overarching principle to deal with new situations and different offences. The consequent lack of certainty, accessibility, predictability and fairness is compared to the standards of the European Convention on Human Rights. The statutory definition of consent in the context of the sexual offences is assessed critically as a model which could be used in offences against the person and property offences. The article concludes that until Parliament responds to the need for certainty and consistency by legislating on consent, there can be no rational reconstruction of consent under the Sexual Offences Act 2003.     

A five-year gender equality score card for the Philippine Supreme Court under its first woman Chief Justice: opportunities seized and missed

ABSTRACT

On 24 August 2012, the Honourable Maria Lourdes Sereno was appointed Chief Justice of the Philippine Supreme Court, the first woman to hold such position since its establishment in 1901. Several cases involving important women’s issues decided during her term were reviewed in this work, inspired by the possibility that a young, brilliant and hardworking woman of humble beginnings sitting at the helm could make a difference. Indeed, the Chief Justice manifested commendable grit in registering meaningful dissent in Imbong v. Ochoa, where she championed women’s bodily autonomy, and when she wrote a provocative concurrence in Vinuya v. Romulo, where she gave hope to women who suffered wartime atrocities. However, she missed an opportunity to put the rape shield law into good use in deciding People v. Batuhan and Lacturan. Her concurrence was also disappointing in Garcia v. Drilon, where she favoured rational basis review over intermediate level of scrutiny for gender-based classification, in People v. Jumawan where a conviction for marital rape was based on romantic paternalism, in People v. Palotes where additional compensatory damages were not considered for a rape victim who bore a child, in People v. Tionloc where acquittal was based on rape myths, and in People v. Caoili where the Court refused to call rape by its ugly name.     

An unusual case of pseudo rape.

A case has been reported which adds a new and unusual dimension to false rape allegation and gives a heretofore unknown motive for a woman to claim a bogus rape. A female newspaper reporter entered a hospital, stated falsely that she had been sexually assaulted, allowed herself to be interviewed and then examined by the author, and accepted and took medication, all because she wanted to "find out how a rape victim is treated at the new Rape Center and I was pretending to be a rape victim." Rape center workers must be alert to spurious claims of unprincipled and deceitful women.     

Trends in Police-recorded Offences

This article presents 10-year trends (1998–2007) on some common crimes: homicide, assault, rape, robbery, car theft, domestic burglary and drug offences. In addition, a few less common offences in police statistics, such as money laundering, corruption, offences against computer data and systems are discussed, even though trends of these crimes are not available. Trends are shown from Western, Central and Eastern Europe, where significant sociopolitical changes have occurred. Although police data actually describes more the recording practices of the officials than the amount of crime, police data is highly valuable for research purposes. Most countries continuously collect information about police activity, and the police is mostly the starting point for proceeding with a case in the criminal justice system. In the USA, all common offences recorded by the police have decreased during the recent years. In Europe, property crimes, homicide and robbery have decreased in most countries, but violence and drug crimes have increased. According to the crime victim surveys, the increase in assault cannot be explained by the increasing reporting activity of victims; the increase seems real. The level of crime differs considerably in different areas: for instance, homicide is most common in Eastern Europe, but assault is much higher in Western Europe.     

Sexual Offences in Vanuatu under the Light of Custom and Law: “An Avenue for Restorative Justice”

This paper will focus on the Republic of Vanuatu’s society and customs relevant to this topic. I will consider the laws made by the legislature to deal with sexual offences in Vanuatu and how they are being implemented or enforced. I will also discuss the different provisions under the law whereby accused persons have an option to actually compensate the victim of the offence and how it is being used in Vanuatu in relation to sexual offences. This paper will also look at how Vanuatu’s culture influences the prosecution or the sentencing of sexual offences or dealing with such crimes in the first place. This will reveal whether Vanuatu’s customary approaches to sexual offences actually support the state’s laws to punish such offenders and if a more fair and just process is needed where the voices of the offender as well as the victim are heard. Custom usually does not allow the victim to speak, and the victim’s parents and the elders of the community decide how the offender should be dealt with. Neither the formal court process nor the customary reconciliation process seem to take into account the wishes and interests of the victim and the offender. The flaws within the legal system and customary laws in addressing victims’ and offenders’ issues will be examined and an alternative process of restorative justice will be discussed.     

Juror common understanding and the admissibility of rape trauma syndrome evidence in court

Expert testimony on rape trauma syndrome has been used in sexual assault cases to corroborate the victim's complaint and to educate the jury. One of the primary arguments against the admissibility of this testimony is that it is not helpful because most jurors are adequately informed about rape and rape victim behavior. To test this assumption, a Sexual Assault Questionnaire (SAQ) was administered to experts on rape and post-traumatic stress disorder (PTSD) and two nonexpert comparison groups. Results indicated that the nonexperts were not well informed on many rape-related issues and were significantly less knowledgeable than the expert groups. The data also showed considerable consensus among the experts about the current scientific database on rape trauma. The implications of these results for the use of expert psychological testimony on rape trauma syndrome in court are discussed.