The court for sexual offences: perceptions of the perpetrators of sexual offences

This article explores the largely hereunto-ignored perceptions of the offenders within the specialist sex-courts in Bloemfontein, Free State, South Africa. Various factors potentially affecting such perceptions within this group of individuals are identified by way of theoretical orientation. Respondents were inclined to view the Court for Sexual Offences as biased in process and excessively punitive with regard to sentencing. The specialist sex-court was also perceived to be inefficient and slow. Female prosecutors were judged to be overly involved in cases to the extent that their objectivity was impaired. The need for additional research in various related areas is also explored.     

FAMILY COURT–UNIVERSITY PARTNERSHIP TO BENEFIT DIVORCING FAMILIES: THE EXPERIENCE OF MARICOPA COUNTY (ARIZONA) FAMILY COURT DEPARTMENT AND ARIZONA STATE UNIVERSITY'S PREVENTION RESEARCH CENTER*

Using evidence‐based methods to help divorcing families requires the combined best efforts of legal professionals, courts, judges and administrators, mental health oriented service providers, and university researchers. Collaborative program development, implementation, and evaluation involve a complicated process of negotiation between professionals, yet this process is hardly ever described. The current article describes the processes we underwent in forging an alliance of researchers from Arizona State University's Prevention Research Center with professionals from the Maricopa County (Arizona) Family Court, a collaboration that involved a true dialogue and cooperation from the earliest stages and continuing throughout the project. A Community‐Based Participatory Research model was the underlying basis for our partnership; its lynchpin device was a Joint Planning Committee.     

INNOVATION IN DISPUTE RESOLUTION

This article reports on a study of the case settlement process used in the Connecticut Superior Court Family Division to resolve child protection and placement disputes. Key elements of the formally titled Case Status Conference are presented and evaluated for their effectiveness and efficiency through interviews with legal and judicial professionals familiar with the conferencing procedure.     

Oriental medicine professionals' duty to inform patients

Oriental medicine has constituted a significant portion of health care in Korea, but discussion regarding the legal duties of Oriental medicine professionals has been marginalized. This article proposes the first step in discussing the duty of Oriental doctors and pharmacists to inform their patients about the medicine they provide. It begins by introducing the only decision the Supreme Court of Korea has made regarding the legal obligation of Oriental medicine professionals, where the Court held that the Oriental medicine retailer had a duty to provide information about the medicine being sold. This article supports that decision of the Supreme Court and further argues that other primary providers of Oriental medicine-Oriental doctors and pharmacists-should also bear the duty to inform. The conclusion is driven from the fundamental principle of the Korean Constitution: that everyone is entitled to the right to self-determination. In discussing the scope of information doctors and pharmacists should provide, this article notes the unique features of Oriental medicine used in Korea. The author concludes that Oriental doctors and pharmacists should inform their patients of the nature and effect of the medicine being provided, detailed usage instructions, potential risks associated with the medicine, and information regarding combined use with conventional medicine. As for restorative Oriental medicine, doctors and pharmacists should particularly provide instructions regarding its unique restorative purpose.     

Enhancing the Mental Health and Well‐Being of Infants,Children, and Youth in the Juvenile and Family Courts: A Judicial Challenge

At the invitation of the National Council of Juvenile and Family Court Judges, judges from the 30 largest juvenile jurisdictions in the country and mental health professionals met for two days in Tampa, Florida, March 18–19, 2000. Their discussions over this two‐day period resulted in the first draft of this document. Meeting again in July in Snowbird, Utah, members of the group reviewed and revised the original document. This second revision was mailed to members of the group and to the officers and board of the National Council for their review. Comments from this second draft were incorporated into the final document as it appears in this issue of the Juvenile and Family Court Journal. The experience and expertise represented by this dedicated group of judges and mental health professionals is reflected in the contents of this paper. Each of the participants is actively engaged in the process of systemic change in the delivery of mental health services in their communities, each can recount both successes and failures in the process of creating this change, and each brings experience and insight to this forum. This position paper is intended for the use of judges, court administrators, and mental health professionals who work with youth in the juvenile courts of our country. It is intended as a basic framework for the development of community systems of care which will serve children, youth, and families experiencing mental health problems appropriately and well.     

Betrayal of confidence in the Court of Appeal

In overturning Latham J's judgment in R v Department of Health, Ex Parte Source Informatics Ltd. that anonymisation does not obviate breaching a personal confidence, the Court of Appeal holds that where the duty of confidence arises in equity it does not prohibit the confidant using the confided information without the consent of the confider if this does not treat the confider unfairly (relative to the Court's view of the confider's legitimate interests). We argue that this principle--by bringing fairness to bear on the scope of the duty of confidence rather than on whether a breach of it may be lawful--has no authority in usable precedents; that the Court's interpretation of fairness in applying this principle is, in any event, incompatible with the Data Protection Act 1998 (in part because the Court has too narrow a conception of privacy); that the Court errs in holding that neither anonymisation of personal data nor use of anonymous data falls under the Data Protection Act; and that the Court's insensitivity to the vulnerability that leads patients to disclose information about themselves to health professionals for their treatment, leads it to misidentify the basis of the duty of confidence in such disclosures. The Court of Appeal's reasoning does not clarify the duty of confidence, but virtually abolishes it in the face of competing commercial and research interests.     

The legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment: part 2 (Queensland)

This is the second article in a series of three that examines the legal role of medical professionals in decisions to withhold or withdraw life-sustaining treatment from adults who lack capacity. This article considers the position in Queensland, including the parens patriae jurisdiction of the Supreme Court. A review of the law in this State reveals that medical professionals play significant legal roles in these decisions. However, the law is problematic in a number of respects and this is likely to impede medical professionals' legal knowledge in this area. The article examines the level of training medical professionals receive on issues such as advance health directives and substitute decision-making, and the available empirical evidence as to the state of medical professionals' knowledge of the law at the end of life. It concludes that there are gaps in legal knowledge and that law reform is needed in Queensland.     

Another permanency perspective:Family Drug Court

Because a staggering percentage of criminal court caseloads are intrinsically related to drug or alcohol abuse, general jurisdiction courts with rehabilitative “Drug Court” programs have experienced notable success. A similarly large number of juvenile and family court cases also involve substance abuse. The establishment of a “Family Drug Court” is allowing parents involved in abuse and neglect litigation to benefit from the juvenile justice system's social service mode of rehabilitation.     

BUILDING PARTNERSHIPS TO PROTECT CHILDREN

A collaboration between Hawaii's Family Court and Child Protective Services resulted in statewide adoption of a form of family group conferencing–called 'Ohana Conferencing–which involves immediate and extended family, child welfare professionals, and others in a process of planning for the safety of children. The authors describe this model, its principles, origins, and format, emphasizing the importance within the conference of private family time apart from professionals. They discuss similarities and differences between 'Ohana Conferencing and mediation, case conferences, and therapy, 'Ohana Conferencing changes the relations among court (by diverting cases), family, and professionals; the authors address issues and challenges arising from this shift, such as the role of professionals, confidentiality, and decisions about whether to hold a conference and who may invite or veto attendees.     

ASSESSMENTS FOR POSTSEPARATION PARENTING DISPUTES IN CANADA

There is controversy in Canada about the use of assessments by mental health professionals to assist in the resolution of postseparation disputes between parents about their children. Although the principles developed by the Supreme Court of Canada to govern the admission of expert evidence in criminal law cases provides guidance for judges in family law cases, in deciding whether to order an assessment or admit expert evidence, family law judges must also take account of the child-related context. Mental health professionals can provide valuable information that would otherwise be unavailable when making prospective decisions about children. Court-appointed assessors also have a significant institutional role in the family law cases that has no equivalent in the criminal law context. Assessors are important not only for the relatively rare cases that go to trial, but they also play a central role in helping to resolve the much larger number of cases that are settled.     

Professional disciplinary proceedings against expert medical witnesses

Witnesses in legal proceedings are protected from civil liability based on their evidence. This immunity is founded on public policy considerations, particularly the belief that witnesses would be less willing to provide full and frank evidence if they were at the risk of civil proceedings based on their evidence. But witness immunity now appears to be subject to an important qualification. The English Court of Appeal has confirmed that witness immunity does not prevent the commencement of professional disciplinary proceedings against an expert witness. In General Medical Council v Meadow [2006] EWCA 1390 the court upheld a disciplinary complaint made against an expert medical witness, even though the complaint was based on that doctor's witness evidence. The Court of Appeal reasoned that the underlying purpose of professional disciplinary proceedings, which is to protect the public, could sit comfortably with witness immunity. The result seems to be that people unhappy with witness evidence cannot sue the witness but can make a professional disciplinary complaint. This apparent gap in witness immunity is important to all professionals who might give evidence.     

Decision-Making About Volitional Impairment in Sexually Violent Predators

The Kansas v. Hendricks (1997) decision, in which the Supreme Court authorized post-sentence civil commitment for certain sex offenders, appeared to be constitutionally legitimized by limiting the class of offenders eligible for this special form of civil commitment to those who are "unable to control" their dangerousness. Nowhere in the available record, however, did the Court elucidate what they meant by this notion of volitional impairment. This study sought to examine factors that legal professionals (n=43), psychologists (n=40), and mock jurors (n=76) deem most relevant to a determination of sex offender volitional impairment. Participants, who were randomly assigned to a sexual predator commitment or an insanity hearing context, read a series of 16 vignettes that described a pedophilic offender and included combinations of variables hypothesized to be related to judgments of volitional impairment. Results suggested that participants, who as a group made remarkably high estimates of likelihood of future sexual violence, considered verbalization of control, history of sexual violence, and the context of the hearing as highly relevant to determinations of volitional impairment. Implications for policy and practice are explored.     

Bite the Bullet

This paper discusses the Fedon case‐law of the European Court of Justice (Court of Justice), which involved a claim for compensation by Fedon (an Italian producer of eyeglass cases) from the EU for the imposition of World Trade Organization (WTO)‐authorised retaliatory trade barriers by the USA following the failure by the EU to comply with an adverse ruling by the WTO regarding its import regime for bananas. As a result of the EU non‐compliance, European banana distributors and some bananas producers benefited from WTO‐illegal protection, at the expense of a set of EU exporters, including Fedon, that were hit by US countermeasures. Fedon contested the non‐compliance by the EU before the Court of Justice and sought compensation. This paper assesses the ruling of the Court of Justice against Fedon and argues that the Court got it wrong, both in terms of legal principle and as a matter of legal technicalities.     

THE RIDDLE OF TROXEL

This article addresses the United States Supreme Court case of Troxel v. Granville, which is unique for its attention to the changing face of the American family and the Court's willingness to venture into the troubled waters of family law. Troxel conflates standing with standards and muddies the lines between private and public, between therapeutic intervention and state coercion. The article attempts to unravel the challenge of Troxel, considering both the cases' significance and inflammatory potential, while also raising significant questions that will confound professionals for years to come.     

Prosecuting 'child pornography': Possession and taking of indecent photographs of children

This article examines the application of 'child pornography' law by police, prosecutors and the courts and presents the key findings from the first national study conducted into child pornography trials in the Crown Court in England and Wales against a wider statistical analysis of proceedings for possession of 'child pornography' in the Magistrates' Court. The findings show that there are very few prosecutions in the Crown Court and, of defendants proceeded against, most are involved in the taking of photographs rather than in distribution or possession per se . Notwithstanding, few of these defendants are charged with any additional sexual offence, although in the act of taking an indecent photograph of a child some further offence(s) must inevitably be committed. The findings suggest a relationship between child pornography and child sexual abuse. Defendants engage in disavowal and minimizing strategies, while judges also fail to recognize the dangerousness of those defendants convicted of possession or distribution. Sentencing continues to reflect the view that such child pornographers are benign and prison terms remain at the lower end of the tariff range.     

Treating those found incompetent for execution: ethical chaos with only one solution

In early 1988 the population on America's death rows climbed above the 2,000 mark for the first time in history. In 1986 the United States Supreme Court firmly stated that the Constitution will have been violated if any of these prisoners is put to death while mentally incompetent for execution. In this article we discuss the case of Gary Alvord, the only inmate to be formally found incompetent for execution in modern times. Interviews with psychiatrists and mental health professionals at the Florida psychiatric hospital where Alvord was treated between 1984 and 1987 reveal much ambivalence and anger about the case. We conclude that, out of respect for the rights of these mental health professionals and the ethical codes of their professions, any prisoner found incompetent for execution should have his or her death sentence commuted to long-term imprisonment before treatment is requested or given.     

First, do no harm: the use of covert video surveillance to detect Munchausen Syndrome by Proxy--an unethical means of "preventing" child abuse

Since it was first identified in 1977, Munchausen Syndrome by Proxy has uniquely affected the way in which the medical and legal communities deal with the issue of child abuse. Inherent in the medical response to the disease are issues of suspicion, investigation, identification, confrontation, and, of course, the health of an innocent child. Given the deceptive dynamics of this disease, however, denial and disbelief naturally overshadow every action taken by medical professionals in pursuing these issues. Fortunately, as medical knowledge about the dynamics of the disease continues to develop, medical professionals become more willing and better able to identify the disease and focus their response on the safety of the child. The greatest problem in prosecuting Munchausen Syndrome by Proxy is that judges and juries remain unwilling to accept the reality of the disease. Consequently, in an effort to confirm medical suspicions and quell legal doubts, the medical community has resorted to covert video surveillance of the abuse while it is being perpetrated in the hospital. In this Article, Flannery argues that this response is an unnecessary and unethical, means of preventing Munchausen Syndrome by Proxy and protecting the child. Flannery supports the approach taken by the Family Court of New York in addressing Munchausen Syndrome by Proxy cases. The Family Court of New York recognizes the unique dynamics of this bizarre disorder, and, therefore, considers all cumulative circumstantial evidence in a Munchausen Syndrome by Proxy case, comparing the facts of the subject case to the commonly accepted features of confirmed cases. Part of the circumstantial evidence that should be considered, Flannery argues, is the dissipation of the child's condition upon temporary separation from the alleged perpetrating parent. As is done by the Flannery Court of New York, a res ipsa loquitur standard should then be applied, and an appropriate disposition for the child should be determined. By employing this standard, the court may confirm suspicions of Munchausen Syndrome by Proxy while avoiding the unnecessary harm to the child inherent in the covert video surveillance of Munchausen Syndrome by Proxy.     

DOMESTIC VIOLENCE AND EMPOWERMENT IN CUSTODY AND VISITATION CASES

This article reports a State Justice Institute funded research project attempting to demonstrate the difference between mediation and evaluation disputes over child custody, and visitation where domestic violence is involved. The researchers attempted to develop samples at two courts—Hennepin County Circuit Court in Minneapolis, Minnesota, and Multnomah County Circuit Court in Portland, Oregon.     

Training of legal professionals in DNA evidence

The South African Criminal Legal System is based on Roman Dutch law. Court proceedings are led by a single presiding officer of the court. Prosecutors and defence advocates present the court with evidence in an adversarial manner. This system has inherent advantages and disadvantages and therefore the training of legal professionals in handling DNA evidence in court is important. The prosecutors resort under the National Prosecuting Authority and the defence advocates act independently or e.g. under the auspices of Legal Aid South Africa.Education curricula of legal professional do not include forensic science evidence. Principles such as evidential value in the forensic context are not addressed. Training of legal professionals with our Essential DNA Evidence™ Course has been a multiplier of forensic science knowledge in the legal profession in South Africa. We present prosecution and defence perspectives in an unbiased manner, compensating for the possible subjective interpretations of evidence that may be presented in court. Forensic evidence is subsequently carefully evaluated prior to being court presentation thus improving court efficiency, and allowing for a more focussed approach to the presentation of evidence. Approaches to the customisation of course content that adds value has been identified via evaluation of training programmes.Experience has shown that legal professionals have the ability to incorporate relatively complex scientific concepts into their legal arguments if provided with the appropriate training opportunity. Appropriate training in DNA evidence has made the court process more effective, both in terms of time and costs, and ultimately serves justice.