Sex,Dementia, Capacity and Care Homes

This paper addresses the appropriate legal and policy approach to sexual conduct involving people with dementia in care homes, where the mental capacity of one or both partners is compromised. Such conduct is prohibited by sections 34–42 of the Sexual Offences Act 2003, but this article asks whether this blanket prohibition is necessarily the appropriate response. The article considers a variety of alternative responses, eventually arguing that clearer guidance regarding prosecution should be issued.     

Rethinking the Wrongness Constraint on Criminalisation

Orthodox thought holds that criminalisation should be subject to a wrongness constraint: that is, that conduct may be criminalised only if it is wrongful. This article argues that this principle is false, at least as it is usually understood. On the one hand, the wrongness constraint seems to rest on solid foundations. To criminalise conduct is to facilitate its condemnation and punishment; to coerce citizens against it; and to portray it as wrongful. All of these actions are presumptively impermissible when the conduct that they target is not wrongful. On the other hand, the article argues that the wrongness constraint is nevertheless unsound. Although it is presumptively impermissible to criminalise non-wrongful conduct, this might yet be permissible, given sufficient countervailing reasons. Moreover, there are realistic cases – specifically, some cases of over-inclusive criminalisation – in which such countervailing reasons exist.     

Human Rights and Unfair Dismissal: Private Acts in Public Spaces

This article addresses the termination of employment because of the conduct of the employee in her leisure time, in the light of the right to private life. It explores the impact on the retention of employment of activities taking place outside the workplace and outside working hours, and argues that the approach of UK courts and tribunals, which is based on a primarily spatial conceptualisation of privacy, is flawed. A fresh approach to privacy, resting on the idea of domination, is proposed, which is sensitive to the particularities of the employment relationship. Considering the fairness enquiry in dismissal, it argues that off‐duty conduct may lead to lawful termination of employment only if there is a clear and present impact or a high likelihood of such impact on business interests; a speculative and marginal danger does not suffice. It further proposes that a particularly meticulous test is appropriate when certain suspect categories, such as the employees' sexual preferences, are at stake.     

‘Consumer’ versus ‘Customer’: The Devil in the Detail

According to the European Commission, the objective of EU competition rules is enhancing ‘consumer welfare’. In EU competition law, however, ‘consumer’ means ‘customer’ and encompasses intermediate customers as well as final consumers. Under Article 102TFEU, harming intermediate ‘customers’ is generally presumed to harm ‘consumers’ and where intermediate customers are not competitors of the dominant undertaking, there is no requisite to assess the effects of conduct on users further downstream. Using advances in economics of vertical restraints and, in particular, non‐linear pricing, this article shows that there are instances where the effect on ‘customer welfare’ does not coincide with the effect on ‘consumer welfare’ and the presumption can potentially lead to decisional errors. Thus, if the law is to serve the interests of ‘consumers’, the Commission should reconsider this presumption and its interpretation of the ‘consumer’ in ‘consumer welfare’; otherwise, it remains questionable whose interests EU competition law serves.     

The Impact of Cultural Diversity on International Criminal Proceedings

This article analyses the impact of cultural diversity on internationalcriminal proceedings, and what may be done to counter the unfortunateconditions — limited (or lack of) understanding, alienationand disagreement — resulting from this diversity. Eachof these conditions, if ignored, seriously undermines not merelythe efficacy of international criminal tribunals, but also theirworth from the standpoint of those who are supposed to benefitfrom them, i.e. actual participants (accused, witnesses andvictims) and affected populations. At present, internationalcriminal tribunals primarily understand the problem of culturaldiversity as one of how to cope with linguistic variations.However, a persistent focus on culture as language hides differencesin terms of other culture-specific components of equal relevanceto their work, notably socio-cultural norms and convictionsabout justice. These variations are especially difficult totackle. In this context, the article examines whether nationalcourts, which are assumed to conduct their proceedings in moreculturally homogenous settings, offer more appropriate foraof adjudication of grave crimes under international law.     

Provocateurs

When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so? Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent. Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values.     

Improving evaluation of anti-crime programs: Summary of a National Research Council report★

This article summarizes a report of the National Research Council: Improving Evaluation of Anti-crime Programs. It is based on a workshop, held in September 2003, in which participants presented and discussed examples of evaluation-related studies that represent the methods and challenges associated with research at three levels: interventions directed toward individuals; interventions in neighborhoods, schools, prisons, or communities; and interventions at a broad policy level. The article, and the report on which it is based, is organized around five questions that require thoughtful analysis in the development of any evaluation plan: What questions should the evaluation address? When is it appropriate to conduct an impact evaluation? How should an impact evaluation be designed? How should the evaluation be implemented? What organizational infrastructure and procedures support high quality evaluation? The authors highlight major considerations in developing and implementing evaluation plans for criminal justice programs and make recommendations for improvement of government funded evaluation studies.     

Victimless Conduct and the Volenti Maxim: How Consent Works

This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission. When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons.     

A Primer on Juvenile Protective Legislation

The parens patriae doctrine is grounded in the proposition that children sometimes need the law's protection from their own improvidence or immaturity, and sometimes even from the conduct of their parents or other caretakers. Parens patriae underlies much state and federal regulation in such areas as abuse, neglect, foster care, adoption, medical decisionmaking, support, and delinquency. The doctrine also underlies the wide range of protective legislation that regulates children's conduct, the subject of this article.     

Market Fundamentalisms: Business Ethics at the Altar of Human Rights

In this article the author explores what he terms ‘anemergent trade-related, market-friendly paradigm of human rights’,in contrast to the paradigm of human rights enshrined in theUniversal Declaration of Human Rights (UDHR). It focuses ona reassertion of the UDHR paradigm in relation to corporategovernance and business conduct, looking specifically at theProposed Norms on the Responsibilities of Transnational Corporationsand Other Business Enterprises with regard to Human Rights (‘Norms’).The article examines, in this respect, five central themes:the intertextuality of the Norms; the ‘network’conception of trade and business conduct; ways of categorisinghuman rights obligations; duties regarding implementation ofthe Norms; and, finally, related ethical theory concerns.     

Harm and Wrongdoing in Criminalisation Theory

Contemporary theories of criminalisation address, with varying emphasis, themes concerning the harmfulness and the wrongfulness of the conduct. In his article for the present issue, Antony Duff relies chiefly on notions of wrongfulness as the basis for his proposed criminalisation doctrines; whereas in their 2011 volume on criminalisation, Andrew Simester and Andreas von Hirsch invoke both wrongfulness and harmfulness as prerequisites for prohibiting conduct. The present article assesses the comparative merits of these approaches, and argues in favour of the latter, two-element perspective. In this article, the author puts forward a number of reasons suggesting why the two-element approach (of wrongfulness and harm) is preferable. These reasons include, firstly, an inductive argument—that the kinds of wrongful conduct for which criminalisation seems a plausible response are those that include an element of harm or risk of harm. Secondly, a defining role for the state is one of resource-protection: of safeguarding the means and resources through which citizens can live good lives. Thus the concept of citizens’ living resources—and the related conception of harm—should be made a constitutive and explicit element of criminalisation theory, rather than subsuming resource-protection under a general rubric of wrongfulness. Thirdly, a two-element approach provides reciprocal limiting principles concerning the scope of criminalisation. One can, for example, employ wrongfulness requirements to limit the criminalisation of conduct that has remote harmful consequences; and, conversely, use a harmfulness requirement as means for restricting the criminalisation of wrongful acts.     

Working to Avoid Collateral Emotional Harm to Clients: Cases and Recommendations for the Personal Injury Attorney

Attorneys working in the area of personal injury face complex cases in addition to many potential ethical and practice hazards. They are trained, educated, and have experience in handling and discharging their responsibilities in such cases to the best advantage of their clients, whether plaintiff or defense, while maintaining a professional integrity and appropriate ethical stance. Ideally, personal injury attorneys will practice from a position of virtue, serving their clients in their efforts to recover and regain their quality of life. Nevertheless, factors such as financial and work pressures can intervene, leading to inappropriate conduct that may harm their clients and risk professional alienation and malpractice. In the present article, seven case examples are provided that illustrate how personal injury attorneys working for plaintiffs can act in unethical and harmful ways, ultimately endangering their practice. The article is oriented to attorneys at all phases of their careers and includes recommendations for avoiding the types of harm and unethical practice that have been described. Also, the article presents strategies that psychologists treating these patients can take to remedy further emotional damage to patients.     

A Mediator on the World Stage?—How the EU's Commitment in Foreign Affairs is Portrayed by New Zealand and Australian Media

Abstract: ‘European identity’ is as much a contested concept as is the role of the European Union in foreign affairs. This article combines the two concepts and introduces a third variable, ‘the Other’, in order to address the following questions: How do non‐Europeans perceive the EU on the world stage? Is a tentative identity as a mediator in foreign affairs conveyed in the EU's conduct of foreign policy? Analysing 10 newspapers, 4 television bulletins, and 830 public surveys from Australia and New Zealand in the first half of 2004, this article argues that the EU's efforts to further democracy and peace are often marginalised in Australian and New Zealand perceptions. Nevertheless, subtle traces of perceptions of the EU as a potent global actor promoting human rights and environmental sustainability and challenging unilateral US policy courses were detected.     

Codes of professional conduct for Australian Defence Force military physicians: evenomating the serpent?

The scandal of health professionals' involvement in recent human rights abuses in United States military detention centres has prompted concern that Australian military physicians should be well protected against similar pressures to participate in harsh interrogations. A framework of military health ethics has been proposed. Would a code of professional conduct be a partial solution? This article examines the utility of professional codes: can they transform unethical behaviour or are they only of value to those who already behave ethically? How should such codes be designed, what support mechanisms should be in place and how should complaints be managed? A key recommendation is that codes of professional conduct should be accompanied by publicly transparent procedures for the investigation of serious infractions and appropriate disciplinary action when proven. The training of military physicians should also aim to develop a sound understanding of both humanitarian and human rights law. At present, both civil and military education of physicians generally lacks any component of human rights law. The Australian Defence Force (ADF) seems well placed to add codes of professional conduct to its existing ethical framework because of strong support at the highest executive levels.     

Attempt: The Conduct Requirement

The law relating to the conduct requirement for criminal attemptsis confused and incoherent. This article examines this incoherence,rejects the Law Commission's provisional proposals to splitthe crime of attempt into two separate inchoate offences andsuggests a reformulation of the conduct requirement in attempts.     

Traders of the lost ark — lectures and liability

It is easy to become inured to students' common perception that lectures are what universities provide — that the attendance at lectures is the total of a student's university experience. It is fruitless to deny that lectures, and sometimes tutorials, are the students' primary connection with the modern university. It would be interesting if the delivery of lectures was considered to be conduct in trade or commerce, capable of attracting the operation of consumer protection statutes, such as the Australian Trade Practices Act 1974 (Cth). This article will investigate several Australian cases which have considered some aspect of universities' liability for misleading conduct. It will also consider more a fundamental question — should universities be exposed to liability for this type of activity?     

基、序、等──刑罚的相应性的蕴涵

本文对刑罚的相应性原则的蕴涵作了系统的探讨。作者认为,基的相应、序的相应与平等性是相应性的不可或缺的三项基本要求,基的相应性是刑量与罪量在绝对意义上的相应．序的相应是罪量与刑量在相对意义上的相应,平等性是相同的罪量应受的刑量应该一致,三者共同制约着立法上法定刑的确定与司法上判定刑的裁定。     

Human tissue intended for transplantation--FDA. Interim rule; opportunity for public comment

The Food and Drug Administration (FDA) is issuing an interim rule to require certain infectious disease testing, donor screening, and recordkeeping to help prevent the transmission of AIDS and hepatitis through human tissue used in transplantation. The regulations are effective upon publication. FDA is taking this action in response to growing concerns that some human tissue products are being offered for transplantation use without even the minimum donor testing and screening needed to protect recipients against human immunodeficiency virus (HIV) infection and hepatitis infection. The new regulations require all facilities engaged in procurement, processing, storage, or distribution of human tissues intended for transplant to ensure that minimum required infectious disease testing has been performed and that records documenting such testing for each tissue are available for inspection by FDA. The regulations also provide authority for the agency to conduct inspections of such facilities and to detain, recall, or destroy tissue for which appropriate documentation is not available.     

Welfare enhancing regulation exemptions

Sanctions for regulation violations are used to deter conduct which could potentially result in great social harms. This practice over-deters low-risk entities and under-deters high-risk entities, which leads to social losses. This paper analyzes whether and how such social losses can be mitigated. I show that this can be achieved by allowing regulatees to purchase passes exempting them from regulations at appropriate prices, although they remain liable for any harm they cause.     

British Torture,Then and Now: The Role of the Judges

This article is concerned with the return of torture and other related abusive conduct to the British counter‐insurgency arsenal following the initiation of military engagements in Afghanistan and Iraq in the early 2000s. It focuses primarily on how judges have engaged with the challenges that this torture and abusive conduct have posed, both in their capacity as judges proper and also as appointees to a range of inquiries that have been initiated in the wake of these actions. The article contrasts the post‐2001 work of judges with that during an earlier episode when such state abuse was also evident, Northern Ireland in the 1970s. Arguing that the judiciary has been drawn into the fray much more heavily than in the 1970s and across a great range of platforms, the article analyses this judicial involvement and posits explanations for it against the backdrop of a changing UK politico‐legal culture.