Expanding a community's justice response to sex crimes through advocacy, prosecutorial, and public health collaboration: introducing the RESTORE program

Problems in criminal justice system response to date-acquaintance rape and nonpenetration sexual offenses include (a) they are markers of a sexual offending career, yet are viewed as minor; (b) perpetrators are not held accountable in ways that reduce reoffense; and (c) criminal justice response disappoints and traumatizes victims. To address these problems, a collaboration of victim services, prosecutors, legal scholars, and public health professionals are implementing and evaluating RESTORE, a victim-driven, community-based restorative justice program for selected sex crimes. RESTORE prepares survivors, responsible persons (offenders), and both parties' families and friends for face-to-face dialogue to identify the harm and develop a redress plan. The program then monitors the offender's compliance for 12 months. The article summarizes empirical data on problems in criminal justice response, defines restorative justice models, and examines outcome. Then the RESTORE program processes and goals are described. The article highlights community collaboration in building and sustaining this program.     

“We Don't Believe in Transitional Justice:” Peace and the Politics of Legal Ideas in Colombia

This article draws on law and society theories on the circulation of legal ideas to explain the instrumentalization of transitional justice in Colombia. Most scholarship explains transitional justice as a theoretical framework or as a set of instruments that helps redress mass violence. In contrast, this study reveals that the idea serves as a placeholder for different political actors to promote their respective interests. Drawing on over fifty interviews, the study suggests that the power of transitional justice lies in its malleability, which is both its strength and its weakness, as those with different political agendas can appropriate the idea in contradictory ways. The findings emphasize that understanding transitional justice requires a turn from abstract analyses that either take the idea for granted or try to define its meaning toward examining how people on the ground understand the idea, and how they translate those understandings into political action.     

A Socio-Legal Approach to Administrative Justice

The first part of this article outlines two complementary approaches to enhancing administrative justice. Internal mechanisms, which can be put into place by government departments and public bodies themselves, are contrasted with external mechanisms, which result in the imposition on government departments and public bodies of principles enunciated by courts, tribunals, and ombudsmen. Lawyers are all too familiar with the external approach but tend to be much less familiar with the internal approach. The article seeks to redress this imbalance. It emphasizes the importance of the internal approach, not as an alternative but, rather, as a complement to the external approach and develops a framework for analyzing administrative justice in terms of "trade-offs" between different normative models of administrative decision-making. The second part of the article demonstrates how this approach to the study of administrative justice has informed research on the impact of computerization on social security in the United Kingdom; on decision making in the Scottish prison system; on the assessment of special educational needs in England and Scotland; and on the computerization of social security in thirteen countries. The article concludes by attempting to show that this approach to the study of administrative justice satisfies all the defining characteristics of the socio-legal paradigm.     

Changing institutional culture in the wake of clerical abuse – the essentials of restorative and legal regulation

The Australian Royal Commission into Institutional Responses to Child Sexual Abuse completed its final report in December 2017 after five years of hearings. The Royal Commission was the culmination of pressure from a series of public inquiries about institutional sexual abuse and sustained advocacy from victims and survivor support groups. The Commission made recommendations designed to change institutional leadership, governance and culture. The challenge is to have that change embedded in institutional culture. This paper considers how this might be done in a specific institution, the Catholic Church given that more than two-thirds of reported abuse in faith-based institutions occurred within its ranks. Regulatory theory suggests effective regulation must be responsive to past institutional behaviour. In the case of the Church, the task is profound given its strong self-protective culture which has long shielded abusers. The form of regulation must provide a balance where criminal sanctions loom large in the background while redress processes proceed in the foreground to repair both the harm suffered by survivors and renew Church culture.     

Criminal justice faculty and criminal justice students: A case for the missing data

This article reviews the most current criminal justice education research. It examines the interrelationship between the work of the John Jay College of Criminal Justice, the Academy of Criminal Justice Sciences, the Joint Commission on Criminology and Criminal Justice Education and Standards, and the National Advisory Commission on Higher Education for Police, and describes and compares some of their more important findings. Discussed are types of criminal justice programs; characteristics of criminal justice faculty, particularly in terms of earned academic degrees; agency work experience; commitment to research and teaching; types of criminal justice curricula, as typified by certain educational philosophies; and criminal justice students. Although this article notes several areas with which future research might become fruitfully involved, the area in need of most immediate attention, and the area that current research has all but ignored, is the criminal justice student.     

工伤保险赔偿与第三人侵权损害赔偿竞合问题之思考-兼谈对《社会保险法》第42条的理解与适用

工伤保险赔偿与第三人民事侵权损害赔偿竞合是一直困扰着司法理论和实务界的一个疑难问题,由于我国现行法律对此类问题的处理缺乏具体、明确的规定,由此给司法理论和实践带来了许多争议。如何在理论上进一步厘清此类问题,探索出更加客观、科学的裁判标准,推动相关法律的制订、修改与完善,已势在必行、刻不容缓。     

职业化视野下的法官特质研究

为解决法官大众化问题 ,中国正在进行法官职业化建设。法官职业化是中国司法改革的一项重要目标 ,是实现司法公正的基本保障 ,也是建设社会主义法治国家的内在要求。本文提出 ,法官职业特质是法官职业化所追求的目标 ,法官职业特质以法官职业化为外观 ,以法官思维为内在要求 ,法官职业特质必须通过系统的法官职业教育才能实现。并具体分析了法官职业及法官职业化的标志 ,法官思维的特征 ,法官职业教育的改革等问题     

Repositioning the international human rights protection system: the UN Human Rights Council

The creation of a UN human rights mechanism was meant to address systematically the international protection and promotion of human rights within the context of international relations. Over the years, the Human Rights Commission has dealt with human rights issues in ways which some commentators have labelled unsatisfactory. The United Nations High Level Panel on Threats, Challenges and Change, set up by Kofi Anna to conduct an in‐depth study on global threats, and provide an analysis of future challenges to peace and security, recommended a review of HR mechanisms. This led to the establishment of the Human Rights Council, replacing the Human Rights Commission. One of the mechanisms introduced was the Universal Periodic Review of Human Rights. This article looks at how the UPR process has progressed so far and makes some assessment as to where it is heading.     

Narrative accounts from the citizens,victims, and offenders restoring justice program

This paper describes the Citizens, Victims, and Offenders Restoring Justice (CVORJ) program, a prison-based program conducted as a pilot study at the Washington State Reformatory. The program brings together offenders and victims - though not involved in the same crime - in the company of interested community members to discuss restorative justice principles. The program focuses on the sharing of personal narratives of crime to explore how the harms resulting from crime can best be addressed and justice achieved. Of interest was how a restorative justice model that highlighted community participation could be incorporated into a correctional setting and whether healing could result from the use of surrogate offenders, victims, and community members. The restorative nature of the program, its method of operation, results from the qualitative evaluation, and key implementation challenges are presented.     

‘I Just Wanted Him to Hear Me’: Sexual Violence and the Possibilities of Restorative Justice

The use of restorative justice in cases of sexual violence is highly contentious. Some argue that it may trivialize violence against women, revictimize the vulnerable, and endanger the safety of victim‐survivors. On the other hand, from the perspective of victim‐survivors, it may enable us to hear their stories more holistically, offering greater control and validation, and reduce victim‐blaming. It may also provide an additional opportunity to secure some form of justice. Debate over the validity of these competing claims has largely taken place in an empirical vacuum. This article considers the results of an exploratory study of a restorative justice conference involving an adult survivor of child rape and other sexual abuse. The results, while necessarily tentative, provide good ground to consider afresh the possibilities of restorative justice in cases of sexual violence. We suggest that for those victim‐survivors who wish to pursue this option, restorative justice may offer the potential to secure some measure of justice.     

Mediation and Restorative Justice in Belgium

In this article we present, discuss and try to evaluate initiatives which were recently introduced into the Belgian criminal justice system, aimed at the development of creative answers to crime that avoid the use of traditional prison sentences. We decided to focus this analysis on the practice of mediation as it is actually considered the most innovative approach to the crime problem. Mediation as a problem-solving intervention has to be considered in direct relation to the discussion of the purpose of the criminal justice system. By putting the emphasis on the dialogue between the victim and the offender, a common solution is worked out with the help of a mediator. In this way reparation, redress and sometimes even reconciliation become core values of the penal action.     

System maintenance and legitimation: An historical illustration of the impact of national task forces and committees on correction

Historically, national bodies have addressed the problem of change and reform within the correctional system. The thesis of this article is that special task force commissions, such as the National Advisory Commission on Corrections which generated extensive standards and goals for corrections in 1973, inhibit rather than promote changed within the system they are changed with reforming. This negative impact takes place for several reasons: First, the establishment of such commissions will tend to reduce pressures for change. Second, the members of such commissions, by virtue of their socialization and training, are more adept at processing the language of the system than dealing with its substance. Third, commissions, by making recommendations for change, revise the language through which the system is conceptualized, which in effect legitimizes the system in its existing form.Commissions iterate and legitimize the status quo rather than promote system-wide change. The changes which do occur are only those which are necessary to insure that the system will remain stable. In an attempt to illustrate the arguments, excerpts from Corrections, published by the National Advisory Commission on Criminal Justice Standards and Goals (1973) are compared with Transactions, published by the National Congress on Penitentiary and Reformatory Discipline (1870).     

The Morality of Compensation through Tort Law

In this paper, I will focus on the normative structure of tort law. Only by elucidating the point or rationale of holding the wrongdoer responsible to the victim can we understand the value of having tort law instead of establishing other mechanisms of redress, such as a social insurance scheme. Ultimately, I will argue that the value of interpersonal justice, which underlies tort law, might not suffice to fully justify it in a given community. It all depends on whether victims of accidents are able to vindicate their rights against wrongdoers on a regular basis. If social conditions make this unlikely, then the state might be morally required to implement other forms of compensation, either replacing tort law altogether or supplementing it with social insurance in cases where private justice mechanisms tend to fail more dramatically.     

Co-option,coercion and compromise: challenges of restorative justice in Victoria,Australia

Restorative justice (RJ) encompasses a widely diverging set of practices whereby those most affected by crime are encouraged to meet, to discuss the effects of harms caused by one party to another, and to agree upon the best possible redress of harms when appropriate. In its inception in the late 1970s, RJ was conceptualized and developed as an alternative to formal criminal justice practices. Since this time, however, RJ has largely moved from being an alternative to criminal justice practices to an ‘alternative’ practice within criminal justice systems. This institutionalization has resulted in the significant growth of RJ practices, but has also resulted in RJ being used for criminal justice system goals that are at odds with the needs of victims or offenders. This paper examines the use of the Youth Justice Group Conferencing Program in Victoria, Australia. Drawing from interviews with conference conveners, our research highlights problems related to administrative ‘constraints’ and ‘co-options’ in conferencing in terms of referrals, preparation of conference participants, and victim participation. Following presentation of findings, we conclude with a discussion of implications for the use of RJ within a highly institutionalized setting.     

Private Damages Actions Under EU Competition Policy: An Exploration of the Ongoing Sea Change in Respect of Such Actions Concerning Articles 101 and 102 TFEU Infringements

The EU has an established history of public enforcement concerning antitrust infringements under what are now Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). Yet, until recently, this has not been true in respect of private compensatory damages actions in relation to the said articles. Hence, these actions are now seen as reinforcing the existing deterrent provided by pubic enforcement fines. This paper focuses upon the ongoing sea change that aims to enable and encourage compensatory damages claims in relation to harm caused by breaches of 101 and 102 TFEU. It reveals that both the Court of Justice of the European Union (CJEU) and the European Commission have played pioneering roles in advancing this sea change. It further asserts that, although the rulings of the CJEU have created a hybrid architecture that makes possible private actions in relation to the said breaches under Member state procedural laws before national courts, the architecture itself is problematic as it fails to guarantee that Member states’ procedural rules have a high degree of uniformity, thereby failing to guarantee a regulatory level playing field across the Union concerning the said damages actions. Moreover, not only is the architecture problematic, but it needed further development in respect of rules and requirements in several key areas, such as the right of evidential disclosure, the limitation period issue, collective redress and the quantification of harm, so as to facilitate and encourage claims. The Commission was aware of these concerns, and this paper explores its response. The issues could have been addressed by the establishment of a set of EU procedural rules which national courts would apply in the said actions but the Commission decided upon a different way forward. Working with the said hybrid architecture, and through the vehicle of the 2014 Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, the Commission has amended and created rules and requirements which will form part of Member states’ domestic procedural law—and therefore will be applied by national courts—in order to establish a more level regulatory playing field across the Union which should facilitate and encourage private compensatory damages actions for harm caused by EU antitrust breaches. Of course, a more level playing field means that differences will still remain. Moreover, it will be some time before the success of the Directive can be gauged, and further measures may be required in the future.     

论刑事司法中的人权保障

刑事司法中的人权保障是当前人权保障的首要内容。人权的基本含义是保护个体不受任何外来势力的命令和剥夺,自由体现自己的意愿。但具有抽象人权和具体人权的双重属性。个体人权到集合体人权的发展体现了人权内容的可变性。刑事司法中的人权侵犯现象不仅普遍存在,而且具有多样性。加强刑事司法中的人权保障,要全面树立人权保障观念,正确处理实体正义和程序正义的关系,完善和正确适用刑事程序制度和刑事实体制度。     

Informal,Inquisitorial, and Accurate: An Empirical Look at a Problem‐Solving Housing Court

Substantive justice is often seen as elusive in courts dominated by low‐income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented. Relying on in‐court observations of nearly 300 hearings, and a longitudinal review of nearly seventy‐five cases, this article surfaces the regularized procedures utilized by a purported “problem‐solving” housing court, and theorizes that the inquisitorial features of judicially controlled investigation and enforcement may motivate landlords to repair substantiated housing code violations. This article adds nuance to our understanding of informal justice by identifying the hidden procedural formalisms that may guide alternative decision‐making processes. Furthermore, it evaluates the relationship of one iteration of experimental formalism to substantive justice, and suggests that inquisitorial procedures may be correlated with improved accuracy in case outcomes.     

Towards Good Practice in Juvenile Justice Policy in the Commonwealth

Any witness who is not able to testify due to lack of support or protection is a loss to the proper functioning of a criminal justice system. In this context it is generally accepted that creating a climate for witnesses to testify truthfully and without fear of reprisals is essential to fulfilling the goals of truth and justice. Accordingly, addressing the issues of witness protection and support is a central aspect of a well-functioning criminal justice system; one that contributes not only to the rule of law through more effective investigations and trials, but also ensures that witnesses are treated with the recognition and care they deserve for their contribution to finding the truth. The principle that victims in the criminal justice system must be treated with courtesy, compassion and respect for their personal dignity entails a responsibility on the part of national authorities to realise this basic principle through the development of appropriate mechanisms designed to provide assistance to the victims. However, building effective national victims/witness support and protection is challenging for any state, and especially so for small Commonwealth jurisdictions due to capacity and other constraints. The Commonwealth seeks to provide technical assistance and capacity building to support its members in promoting the rule of law and has developed and disseminated a best practice guide for the protection of victims and witnesses in the criminal justice system. This article seeks to highlight the valuable findings of the Commonwealth guide and to provide guidance to policy-makers, legislators, police, prosecutors and other stakeholders in criminal justice practice.     

Internal Contradictions of Judicial Mediation in China

Judicial mediation in China represents an extreme case of integration between adjudication and mediation. Based on ethnographic work and extensive interviews, this article studies how judicial mediation actually works in China. It finds that the incorporation of mediation as part of the official trial process creates a set of internal contradictions. In addition to the role conflict inherent in a judge's acting also as a mediator, adjudication and mediation stages are organized by different principles. When the rather rigid format of adjudication is carried over to in‐trial mediation, it curtails the flexible, nonlegalistic approach that mediation is meant to promote. Challenged authority, an uncontrolled process, narrowed issues, and weakened norms all make a settled outcome difficult to achieve. In comparison with judicial mediation in other jurisdictions, this case study from China has important theoretical implications for understanding the limits of informal justice.     

From Calculated Cruelty to Casual Violence – The United Nations War Crimes Commission and the Prosecution of Torture and Ill-Treatment

The article looks at the records of both the United Nations War Crimes Commission (UNWCC) and national courts with respect to the post-World War II prosecution of the crimes of torture and ill-treatment. It illustrates how the UNWCC and national courts dealt with the relevant legal questions, applicable laws, crimes at hand, as well as issues of retroactivity and defenses. The article also discusses the UNWCC’s contribution to the development of relevant international law, both in terms of state practice and precedent. Finally, it acknowledges the legacy of the UNWCC and post-World War II prosecutions, which constituted a collaborative effort to bring perpetrators of international crimes to justice.