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.     

类型学的犯罪故意概念之提倡——对德国刑法学故意学说争议的反思

百余年来德国刑法学在故意概念问题上发展出意志要素无用论、意志要素必要论和间接故意与有认识过失合一论三种基本主张的对立,以及十余种标记鲜明的理论学说。学说争议的出发点是为存在构造上具有区别的不同心理现象配置不同的责任,争议焦点在于意志要素无用和有用、行为意志和结果意志、客观危险和主观危险的对立。各种学说部分成功又部分失败的努力,以及彼此之间描述性而非实质性的区别都表明,故意界定的理论发展方向应由实体法视角转向程序法视角,由概念思维转向类型思维。在观念分界的意义上,故意是做成可能侵害法益的意志决定;在事实认定的意义上,提倡建构类型学的故意概念,通过对能够反映认识和意志强度的待证事实的解释性推论,来推断案件事实是否在整体上"充足"故意的类型。     

Sexually Violent Predator Evaluations: Empirical Evidence,Strategies for Professionals,and Research Directions

Several states have passed civil commitment laws that allow the precautionary detention of sex offenders who have completed their criminal sentences. Over 2,500 sex offenders have been committed across states with such statutes and several thousand more sex offenders have been evaluated. Most statutes call for an evaluation of risk by a mental health professional and, although each state statute is worded differently, three main elements common to sexually violent predator evaluations are used to guide evaluators: mental abnormality, volitional capacity, and likelihood of future sexual violence. The current article presents empirical evidence for the main tenants of these forensic evaluations, provides recommendations for evaluators in light of current limitations of evidence, and offers suggestions for future research in this area of forensic assessment.     

精神病人辨认能力和控制能力的多因素分析

目的探讨更科学、客观地评定辨认能力和控制能力的方法。方法对239例刑事责任能力评定案件资料进行相关分析和逐步判别分析,筛选出对辨认能力和控制能力评定有重要影响的判别因子。结果辨认能力与控制能力的判别因子稍有差异,但与责任能力三者之间高度相关;精神科诊断、作案现实动机、作案对象选择性、作案后逃避责任、生活自理能力损害、现实检验能力损害为辨认能力的判别因子;精神科诊断、作案现实动机、作案前先兆、作案对象选择性、作案后逃避责任、工作学习能力的损害、自知力损害、现实检验能力损害、自我控制能力损害为控制能力的判别因子;建立的辨认能力和控制能力的判别方程经组内、组外考核有较高的正确率。结论辨认能力和控制能力判定的多元方程有较好的实用价值,有助于提高鉴定结论的一致性。     

Understanding due discretion of judgment in Catholic marriage courts

Psychiatrists and psychologists provide consultation to the Catholic Church's marriage courts. Operating under the Church's legal code, these tribunals assess the validity of weddings that have ended in divorce. This report describes one of the standards used for this purpose, the lack of due discretion of judgment, which is concerned with the maturity, understanding, and appreciation that the couple brought to the ceremony. This normal capacity is vulnerable to various mental illnesses, which if present with sufficient severity may nullify the marriage vows as seen by the Church (though not necessarily by the state). Such a finding results in freedom to marry again despite the Church's ban on divorce, provided that due discretion of judgment is regained. Case examples and discussion of the assessment process for due discretion of judgment prepare the consultant to apply psychiatric findings to this unique and urgent legal issue.     

Capabilities,capacity, and consent: sexual intimacy in the Court of Protection

This article uses original data from research at the Court of Protection to explore capacity to consent to sex in practice. It argues that the approach under the Mental Capacity Act 2005 fails to place appropriate focus on consent as central to understanding sexual capacity. The capabilities approach to justice is then used to demonstrate the limitations of the existing legal approach to capacity to consent to sex, and to argue that the protective focus of the legal test would be better centred on the social risks resulting from non‐consensual sex and exploitation. Finally, the article argues that, rather than focusing on a medicalized approach to understanding sexual intimacy, an analysis based on capabilities theory provides conceptual tools to support arguments for additional resources to help disabled people to realize their rights to sexual intimacy.     

论法定犯罪目的的实质——兼论犯罪目的与犯罪故意的关系

法定犯罪目的的实质是犯罪故意内的主观心理要素，它具有“法定性”，是定罪所必须查明的。法定犯罪目的贯穿于整个意志心理过程，指引行为人实施犯罪行为。对法定犯罪目的的证明必须建立在推定的基础上，以客观方面的事实加以判断。     

Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action

How do activist plaintiffs experience the process of human rights litigation under the Alien Tort Statute (ATS)? Answering this question is key to understanding the impact on transnational legal mobilization of Kiobel v. Royal Dutch Petroleum Co., in which the US Supreme Court sharply limited the scope of the ATS. Yet sociolegal scholars know remarkably little about the experiences of ATS litigants, before or after Kiobel. This article describes how activist litigants in a landmark ATS class action against former Philippine President Ferdinand Marcos faced a series of strategic dilemmas, and how disagreements over how to resolve those dilemmas played into divisions between activists and organizations on the Philippine left. The article develops an analytical framework focused on litigation dilemmas to explain how and why activists who pursue ATS litigation as an opportunity for legal mobilization may also encounter strategic dilemmas that contribute to dissension within a social movement.     

Beyond the Gaze and Well Beyond Wolfenden: The Practices and Rationalities of Regulating and Policing Sex Work in the Digital Age

Drawing on the largest study of the United Kingdom online market in sexual labour to date, this article examines the legal and regulatory consequences as aspects of sex work increasingly take place within an online environment. Our research shows that while governmental policy has not kept abreast of these changes, the application of current laws (which have, since the 1950s, focused on public nuisance and, more recently, trafficking and modern slavery) are pernicious to sex workers and unsuited to recognizing and responding to the abuses and exploitation in online markets in sexual labour. These injustices are likely to be exacerbated if policies and policing do not better align with the realities of these markets in the twenty‐first century. This demands a more nuanced regulatory approach which recognizes that people may engage in sex work of their own volition, but which also addresses conditions of labour and criminal exploitation.     

劫持航空器罪若干疑难问题研究

在我国刑法中,劫持航空器罪的行为对象主要是民用航空器,但也不排除特定条件下的国家航空器。本罪中的"暴力"是专指对驾驶、操作人员实施袭击或其他身体强制。"胁迫",要求不但能引起对方恐惧,还必须达到足以压制对方反抗程度。"其他行为"是指违背航空器合法控制人的意志且属于暴力、胁迫之外的,使航空器合法控制人不知反抗的行为。行为人只有着手实施了"劫持"行为并实际控制了该航空器的程度,才是犯罪既遂。     

Research With Cognitively Impaired Participants

Illnesses that cause cognitive impairment are a considerable health problem in the United States. These include Alzheimer's disease, Huntington's chorea, cerebrovascular disease, psychiatric disorders, chronic alcoholism, and AIDS dementia complex. Illness associated with cognitive impairment may cause great suffering to the affected patients and their families. Research involving individuals who may be at risk for or have cognitive impairment is necessary to improve our understanding of these illnesses. For example, this may occur during efforts to develop effective therapies to treat them. However, research with participants who have cognitive impairment presents additional ethical concerns because they may be vulnerable to coercion. Therefore, nurse researchers must not only understand the principles of informed consent (i.e., autonomy, beneficence, nonmaleficence, and justice), but also the additional safeguards provided in the common rule to protect cognitively impaired participants in research. These safeguards include advanced informed consent, legal representative, and assent. Gaps exist in federal regulations related to adhering to these safeguards such as how to assess for decision-making capacity and variations on who can be a legal representative. The nurse researchers have potential roles as educators and advocates in research involving participants with cognitive impairment.     

Risk and the preventive detention of sex offenders in Australia and the United States

The development of recent statutory schemes, in both the United States and Australia, aim to keep the most dangerous sex offenders detained beyond the expiration of their prison sentence. In Kansas v. Hendricks (1997), the United States Supreme Court found constitutional Sexually Violent Predator (SVP) legislation that allows for the post-sentence, indefinite civil commitment of a subclass of dangerous offenders. More recently, the Australian High Court in Attorney-General (Qld) v. Fardon (2004) similarly upheld the constitutionality of Queensland's Dangerous Prisoners (Sexual Offenders) Act (2003), which allows for the post-sentence preventive detention of sex offenders deemed to be at high risk of serious sexual recidivism. Because an evaluation of a sex offender's likelihood of re-offending is fundamental to these schemes, this article provides an overview of recent advances in the risk assessment literature, discussing base rates of sexual recidivism, the identification of empirically validated risk factors, and the utility of structured risk assessment tools. Although it is recommended that risk assessment measures be utilized to assist the courts in making sound decisions about commitment, the limits of current research knowledge and areas of future research need are discussed.     

Volition, deception, and the evolution of justice

Criminal justice is inextricably associated with the attributive concept of volition. Although the voluntary-involuntary distinction is subjectively vivid, causal research shows its poles to be inseparable, i.e., the dichotomy is deceptive. Why a bulwark of civilization should be founded on paradox, may be clarified by examining the role of self-deception in man's evolutionary heritage. Natural selection for an optimal degree of self-deception probably occurred, both to facilitate deception of others and to foster human cooperation. This contributed to the evolution of psychiatric disorders, the voluntary-involuntary continuum, and large scale social systems. Society and its members reach an equilibrium within the truth-deception continuum, manifest in individuals by conscious versus unconscious and voluntary versus involuntary, and in society by tension between what actually occurs (realism) and its organizing ideals (idealism). Three legal models of criminal justice are understood in this context: The (1) utilitarian, most realistic, is essential to social survival but vulnerable to abuse; (2) rehabilitative, at an opposite idealistic pole, better supports the image of social beneficence that helps to bind society's members; (3) retributive, most heavily grounded in volition, puts greater emphasis on individual autonomy, and reciprocally modulates the other models. All are legitimized by evolutionary traditions that antedate homo sapiens, and none is sufficient in itself. Elements of all three models necessarily coexist within any existing society, their relative strength varying with its collective values, prosperity, and perceived safety.     

Factors predicting selection of sexually violent predators for civil commitment

This study investigated the degree to which independent variables predicted civil commitment selection in a sample of 450 sexual offenders evaluated for civil commitment as "sexually violent predators" under Florida's Jimmy Ryce Act. Using logistic regression, this study examined the relationship between the dependent variable, commitment recommendation, and several sets of independent variables. Results revealed that the statistically significant predictors of recommendations for sex offender civil commitment were diagnoses of pedophilia and paraphilia not otherwise specified (NOS), psychopathy, actuarial risk assessment scores, younger age of victim, and nonminority race (R2 = .88). Discriminant function analysis confirmed that these variables correctly predicted commitment recommendations in 90% of cases. Sex offenders recommended for commitment consistently met the criteria set forth by the U.S. Supreme Court in Kansas v. Hendricks (1997): They suffered from a mental abnormality predisposing them to sexual violence, and risk assessment determined that they were likely to reoffend.     

Forensic occupational therapy to reduce risk of reoffending: a survey of practice in the United Kingdom

Forensic services are required to reduce an individual’s risk of reoffending. Despite being integral to forensic mental health services, the contribution of forensic occupational therapy to achieving this aim is unclear. This study describes current forensic occupational therapy practice to reduce reoffending risk in the United Kingdom. Responses to a cross-sectional survey consisting of multiple choice and free-text questions were analysed using frequency counts and percentages, and thematic analysis respectively. Of the 58 participants, 83% actively addressed reoffending risk. Participants informed practice with occupation-focused theories, models and assessment tools. Five themes described forensic occupational therapy to reduce reoffending risk: an occupational perspective of risk assessment and formulation; volitional realignment; increasing protective factors; community integration; and enhancing understanding of forensic occupational therapy. Forensic occupational therapists perceive their practice to contribute to reducing reoffending risk, but are yet to establish routine outcome measurement in this area. Implications for practice and future research are discussed.     

精神障碍者的遗嘱能力研究进展

遗嘱能力是指自然人享有的依法设立遗嘱以处分其财产的能力或资格。是众多民事行为能力中的一种．近年来精神障碍者遗嘱能力评定的案例呈增多趋势。本文首先介绍遗嘱及遗嘱能力的概念．然后对遗嘱能力的评定标准进行总结,主要是以Banks v．Goodfellow案例为基础制定的标准,包括理解遗嘱的性质和附加条款、对自己资产的基本认识、对自己可分配物品的认识、理解自己财产分配所带来的影响和不受妄想影响下分配财产,并归纳遗嘱能力的影响因素,包括痴呆、情感障碍、精神分裂症、酒中毒、精神活性物质和不适当影响等。最后简要介绍了其相关的评定工具如简明精神状态检查量表、画钟测验和遗嘱定义量表。     

Human Rights in an Era of Neoliberal Globalization: The Alien Tort Claims Act and Grassroots Mobilization in Doe v. Unocal

This article examines a widely publicized corporate accountability and human rights case filed by Burmese plaintiffs and human rights litigators in 1996 under the Alien Tort Claims Act in U.S. courts, Doe v. Unocal , in conjunction with the three main theoretical approaches to analyzing how law may matter for broader social change efforts: (1) legal realism, (2) Critical Legal Studies (CLS), and (3) legal mobilization. The article discusses interactions between Doe v. Unocal and grassroots Burmese human rights activism in the San Francisco Bay Area, including intersections with corporate accountability activism. It argues that a transnationally attuned legal mobilization framework, rather than legal realist or CLS approaches, is most appropriate to analyze the political opportunities and indirect effects of Doe v. Unocal and similar litigation in the context of neoliberal globalization. Further, this article argues that human rights discourse may serve as a common vocabulary and counterhegemonic resource for activists and litigators in cases such as Doe v. Unocal , contrary to overarching critiques of such discourse that emphasize only its hegemonic potentials in global governance regimes.     

Defining a clinically useful model for assessing competence to consent to treatment

Burdened with the responsibility of making an initial assessment of their patients' capacity to make treatment decisions, clinicians need a sound clinical assessment model. Drawing on ethical, legal, and clinical sources, the author reviews the appropriateness of existing models and standards and describes why each fails the needs of the clinician. The patient's ability to form a therapeutic alliance is shown to be a valid assessment model for defining a treatment decision-making ability threshold because it adheres to widely accepted ethical and legal standards. Using threshold because it adheres to widely accepted ethical and legal standards. Using this model to set a threshold for the decision to bring cases to the attention of a court or administrative body, the therapist arrives at a satisfactory balance between competent treatment, patient autonomy, and judicially mandated due process imperatives while providing a forum for patient education and assessment of the clinician's technical skill. Explanations of case examples illustrate the use of the therapeutic alliance for this purpose in a variety of clinical situations. Specific recommendations are made on what may be represented to court in cases in which the patient's competence appears to fall below this treatment threshold.