Extreme cases and the criminal justice system: responses to a traumatic sexual assault in India

ABSTRACT

This paper addresses criminal justice responses that came on the heels of a traumatic sexual assault in public space in India. The incident referred to as “Nirbhaya,” drew attention to the nation as well as the world the violence against women who on the one hand find themselves in public spaces designed for all denizens in this globalised world, yet, subject to sexploitation and devoid of safeguards and equal protection. In this paper we catalogue modifications to Indian criminal justice as a result of the Nirbhaya case to illustrate how extreme events help drive changes to the system in a large democracy, yet an economically developing one. More specifically, we address changes that have been incorporated in criminal laws, police procedures, and crime prevention efforts, as well as assess the degree to which these efforts have been effective.     

Reversing the historical tide of iatrogenic harm: A therapeutic jurisprudence analysis of increases in arrests of domestic batterers and rapists

Therapeutic jurisprudence (TJ) proposes that the law is a social force that can heal or cause harm to parties in a legal action. Historically, women victims of intimate partner rape and domestic violence could not seek justice in the legal system because police, like other actors in the justice system, treated these offenses as private matters or fabrications. In domestic violence and intimate rape cases, TJ is concerned with the needs of the victims, and how the law and police play a role in increasing their well-being. In this article, we use a TJ approach to the study of police responsiveness to victims of these offenses by investigating arrests of the offenders pursuant to law reforms that encourage or mandate arrest. Given that in these offenses, victims have the lowest reporting rates of any violent crime, the victim decision to call the police represents an expectation that the mere physical presence of a police officer may redefine the nature of the violence from a private conflict to a societal wrong that will not be tolerated. Police partnership with and treatment of the victim with respect and dignity can change the dynamics of the violence, terminate the violence, and set the criminal justice process in motion by arresting the offender in most cases. Police arrest, and subsequent prosecution and conviction, sends a message to offenders that society does not tolerate their violence, and allows the victim to begin to heal. Yet, past research indicates that police are less likely to arrest intimates than acquaintances and strangers in misdemeanor and aggravated assault, rape, and sexual assault cases. Using the National Incidence Reporting System (NIBRS) for the year 2000, we examine police arrests of intimate partner rape and domestic violence in jurisdictions with mandatory and presumptive arrest policies compared to police arrests in full discretion jurisdictions. We also ascertain whether arrest rates are higher for strangers and acquaintances than for intimates in misdemeanor and aggravated assault, kidnapping, and rape and sexual assault. Third, we determine whether police arrests of intimate partner rape is more likely if there is evidence of violence, injury to the victim, and use of a weapon. Our multivariate findings suggest that both the rape and the domestic violence reform movements have reversed the tide of historical negative treatment of female victims of these offenses. Logistic regression analysis indicates that police agencies in mandatory and preferred arrest jurisdictions increase the odds of arrest for domestic violence incidents and violations of orders of protection, compared to police agencies in jurisdictions with permissive/discretionary arrest policies. In addition, intimate violence increases the odds of arrest by 98%; forcible rape accompanied by simple assault or kidnapping increases the odds of arrest by 467 and 222%, respectively whereas forcible fondling accompanied by simple assault increases the odds of arrest by 293%. We discuss the implications of our findings for future law reform as well as TJ.     

“The ladder of the law has no top and no bottom”: How therapeutic jurisprudence can give life to international human rights

In the past two decades, therapeutic jurisprudence (TJ) has become one of the most important theoretical approaches to the law. But, there has, as of yet, been puzzlingly little written about the relationship between TJ and international human rights law. To be sure, there has been some preliminary and exploratory work on the relationship between TJ and international law in general, but virtually nothing on its relationship to international human rights law in a mental disability law context. This paper seeks to focus on this lack of consideration, to speculate as to why that might be, and to offer some suggestions as to how to infuse some new vitality and vigor into this important area of law and social policy.     

Re Herrington: aboriginality and the quality of human rights jurisprudence in end-of-life decisions by the Australian judiciary

In Re Herrington [2007] VSC 151 (King's Case) the partner and family of an Aboriginal woman (diagnosed as being in a persistent vegetative state after an accident) sought an order from the Victorian Supreme Court that the decision of her treating doctors to withhold further medical treatment be opposed. The resultant judicial decision contains a very brief review of the now considerable case law in this area, does not mention the increasingly important role of clinical ethics committees in this context, or discuss the relevance of recently passed human rights legislation in Victoria. Given the statutory requirement for judicial reference to international human rights norms in jurisdictions such as Victoria and the Australian Capital Territory, and their increasing importance in other developed nations, the authors highlight the need for the Australian judiciary to lift the quality of their jurisprudence in relation to end-of-life cases.     

重提"违宪改革合理说"宜审慎——以过去数年之乡镇长直选"试点"为事证

十多年前遭遇过不少否定性评论的"违宪改革合理说"最近似乎又受到了某种程度的肯定.剖析违完安排选民直选乡镇长"试点"的个案表明,违宪改革远不如在宪法架构下改革有成效.当年地方公共机关完全没有必要付出违宪的代价将乡镇长由本级人大选举改为选民直选,而是应争取在宪法的框架内给选举过程注入竞争机制.违宪改革要么行不通,要么得不偿失.只要对具体过程做考察就不难看到,任何形式的违宪都违反民主精神、破坏法治,必然加剧地方公共机关侵害公民的权利与自由的倾向.尽管重提"违宪改革合理说"之立意值得肯定,但无奈此说理论上、逻辑上有太多的自相矛盾处,若付诸实践必然会对公民的权利、自由和中国的法治建设事业造成严重损害.同样,法律学者应认清时代潮流,站在放眼未来的高度看待历史事件、总结历史经验,提出进步的建言.提倡违宪改革实际上是变相主张继续实行人治,否定法治.违宪改革是下策,重提"违宪改革合理说"有害无益.     

Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence

The Fourteenth Amendment was intended to protect people from discrimination and harm from other people. Racism is not the only thing people need protection from. As a constitutional principle, the Fourteenth Amendment is not confined to its historical origin and purpose, but is available now to protect all human beings, including all unborn human beings. The Supreme Court can define "person" to include all human beings, born and unborn. It simply chooses not to do so. Science, history and tradition establish that unborn humans are, from the time of conception, both persons and human beings, thus strongly supporting an interpretation that the unborn meet the definition of "person" under the Fourteenth Amendment. The legal test used to extend constitutional personhood to corporations, which are artificial "persons" under the law, is more than met by the unborn, demonstrating that the unborn deserve the status of constitutional personhood. There can be no "rule of law" if the Constitution continues to be interpreted to perpetuate a discriminatory legal system of separate and unequal for unborn human beings. Relying on the reasoning of the Supreme Court in Brown v. Board of Education, the Supreme Court may overrule Roe v. Wade solely on the grounds of equal protection. Such a result would not return the matter of abortion to the states. The Fourteenth Amendment, properly interpreted, would thereafter prohibit abortion in every state.     

The prosecution of bias crime in the Netherlands and the problem of net-widening: fundamental limits to criminal liability

Crimes that are committed with bias motives are categorised as ??hate?? or bias crimes and are punished more severely than nonbias crimes. However, bias crime laws are often applied to offences where there is no clear evidence of a bias motive. Based on the results of 318 case studies into bias crime prosecutions in the Netherlands, this paper demonstrates that the causes of net-widening should be sought in the action-oriented nature of criminal law reasoning. Decision makers rely on objective behavioural indicators to infer motives. However, these are rarely reliable. We argue that this process results in a transformation of bias crime laws. They are no longer used to punish harmful motives. Rather, they are used to combat behaviour that is considered socially harmful on account of its perceived intolerant, racist or xenophobic message. This forces us to reconsider the justification behind trying to punish motive.     

The question of the constitutional case against suicide: an historiographical and originalist inquiry into the degree to which the theory of the inalienable right to life and liberty is enforced by the Thirteenth Amendment

This article completes a study that the author foreshadowed in his previous articles. The Western moral theory that defends the inalienable right to life and liberty--and that therefore forbids all forms of suicide and slavery--is now well known to the author's readers. What is not well known is an answer to the question of whether this theory, in its totality, was part of the original intent of the Thirteenth Amendment to the Constitution of the United States. The theory of the inalienable right to life and liberty was supported by many political philosophers in the seventeenth and eighteenth centuries. Those philosophers and their theory did shape a good deal of the thought of the men who made the Thirteenth Amendment a part of the Constitution. The anti-suicide implication of the theory, however, was not present in the minds of the framers and ratifiers of the Thirteenth Amendment, and therefore was not part of their intent.     

最高院《证据的若干规定》中的鉴定书审查、质证规则

现代诉讼制度中,讲求的是"程序"、"证据"。我国现阶段尚没有一部完整的《证据法》,关于证据的法律规定散见于各法律及司法解释中。司法鉴定书及结论是一种重要证据,在当今的诉讼中地位日渐重要,最高人民法院由此出台了《最高人民法院关于民事诉讼的若干规定》,本文对《若干规定》中关于鉴定书及结论相关规定的进行了探讨,分析了今后的司法鉴定工作面临了新的问题并提出了一些对策。     

Validities and abilities in criminal profiling: a critique of the studies conducted by Richard Kocsis and his colleagues

In a recent issue of this journal, Kocsis reviewed the criminal profiling research that he and his colleagues have conducted during the past 4 years. Their research examines the correlates of profile accuracy with respect to the skills of the individual constructing the profile, and it has led Kocsis to draw conclusions that are important to the profiling field. In this article, the authors review the contributions of the Kocsis studies and critique their methodological and conceptual foundations. The authors raise a number of concerns and argue that data from the Kocsis studies fail to support many of the conclusions presented in his recent review. The authors present evidence in support of their assertions and provide recommendations that will allow future research in the area to generate data that are more meaningful and generalizable.     

Balancing public health and practitioner accountability in cases of medical manslaughter: reconsidering the tests for criminal negligence-related offences in Australia after R v Patel

In 2010 Dr Jayant Patel was convicted of several offences on the basis of criminal negligence. Following the Queensland Court of Appeal's 2011 endorsement of the trial judge's decision, the case provides a timely opportunity to review prosecutions for medical negligence criminal offences throughout Australia and to critically examine the tests in assessing whether the balance has been correctly struck. The author argues that the thresholds required for prosecutions for criminal negligence for medical manslaughter are problematic and unduly onerous, and do not adequately strike the balance between the utilitarian value in health care and patient safety, on the one hand, and practitioner accountability and deterrence, on the other. This article considers reforms to remedy the imbalance, including a reformulation of the Criminal Code (Qld) and common law thresholds, proposals for the enactment of a separate offence of criminally negligent manslaughter and the utilisation of corporate prosecutions for manslaughter liability to broaden accountability in health care and promote patient safety on a systemic level.     

《中共中央关于构建社会主义和谐社会若干重大问题的决定》有关司法行政工作的名词解释

前言:《中共中央关于构建社会主义和谐社会若干重大问题的决定》(以下简称“决定”)是我们党新时期治国理政的纲领性文件,也是指导我们构建社会主义和谐社会的纲领性文件。《决定》有十多处涉及司法行政工作的内容,为当前和今后一个时期司法行政工作的改革和发展指明了方向,充分表明中央对司法行政工作的高度重视。为帮助广大司法行政系统内外的各级干部和社会各界人士更好地学习领会《决定》中有关司法行政工作的内容,司法部研究室组织编写了“《中共中央关于构建社会主义和谐社会若干重大问题的决定》有关司法行政工作的名词解释”,按在《…