When (Some) Prostitution is Legal: The Impact of Law Reform on Sex Work in Australia

In Australia, prostitution regulation has taken a very different path from many other countries. Law reform has led to the opening of some significant new spaces for legal sex work, including the (very different) regulatory regimes established in two Australian states – Queensland (brothels legal if their owners are licensed) and New South Wales (most commercial sex businesses and some street prostitution decriminalized; no licensing regime). The main research question is: how has regulation impacted on the positive rights of sex workers? I argue that law reform has engaged a mix of neo-liberal and other approaches – not to increase personal or corporate freedom but as part of a practical strategy designed to control a range of social problems, such as police corruption and organized crime. Neo-liberal regulation of prostitution in Australia has always been deployed in tandem with other modes of regulation – including new criminal law and policing strategies, planning law, health regulations, and (of course) moral regulation.     

Reinforcing or Challenging Stigma? The Risks and Benefits of ‘Dignity Talk’ in Sex Work Discourse

The concept of ‘human dignity’ sits at the heart of international human rights law and a growing number of national constitutions and yet its meaning is heavily contested and contingent. I aim to supplement the theoretical literature on dignity by providing an empirical study of how the concept is used in the specific context of legal discourse on sex work. I will analyse jurisprudence in which commercial sex was declared as incompatible with human dignity, focussing on the South African Constitutional Court case of S v Jordan and the Indian Supreme Court case of Budhadev Karmaskar v State of West Bengal. I will consider how these courts conceptualise dignity and argue that their conclusions on the undignified nature of sex work are predicated on particular sexual norms that privilege emotional and relational intimacy. In light of the stigma faced by sex workers I will explore how a discourse, proclaiming sex work as beneath human dignity, may impact on the way that sex workers are perceived and represented culturally, arguing that it reinforces stigma. I will go on to examine how sex workers subvert the notion that commercial sex is undignified, and resist stigma, by campaigning for the right to sell sex with dignity. I will demonstrate that an alternative legal approach to dignity and sex work is possible, where the two are not considered as inherently incompatible, concluding with thoughts on the risks and benefits of using ‘dignity talk’ in activism and campaigns for sex work law reform.     

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.     

本体诠释学与刑法理论发展的多元化

本体诠释学主张诠释者的主观性是无法彻底克服的,解释结论具有主观性、非排他性;理解、解释、应用应该是三位一体的。由于法学理论都是建构在某种假设之上且遵循解释学循环,同一性的刑法理论只能导致视域上的局限以及适用上的困境。在研究刑法理论时,我们应当注重刑法理论研究的多元化以及应用在解释刑法条文中的作用。     

Labours in Vice or Virtue? Neo-liberalism, Sexual Commerce, and the Case of Indian Bar Dancing

Of late, the Indian state has adopted an abolitionist stance towards sex work and bar dancing. This article argues that although in the Indian state of Maharashtra, the judicial overturning of the ban against bar dancing has been celebrated by feminists as a triumph of women's right to livelihood over patriarchal demands of women's sexual morality, the judgment is predicated on a sharp distinction between morally 'good' and 'bad' female labour, namely, bar dancing and sex work. This is ironic given their striking sociological similarities and the stigmatization and levels of state abuse inflicted against both. The article considers the usefulness of the totalizing logic of neo-liberalism for explaining the increased judicial and feminist tolerance for bar dancing. The article argues that prospects for redistributive law reform for all sexual workers are dim unless the arbitrary legal distinctions drawn between markets in female sexual labour are overcome.     

The Way in Which Fee Reductions Influence Legal Aid Criminal Defence Lawyer Work: Insights from a Qualitative Study

This article examines how fee reductions influence criminal defence lawyers’ work. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed in order to understand the way in which cuts to fees paid by government for criminal legal aid work can operate to influence criminal defence lawyers’ working practices. I use game theory and Bourdieu's concepts of habitus and field to build a theoretical construct illustrating the invidious position current financial conditions place criminal legal aid lawyers in. I argue that these conditions reward and encourage perceived poor practices and values to thrive at the expense of other concerns – such as the conviction of the guilty, acquittal of the innocent, fair treatment of both victims and defendants, and value for the taxpayer. Ultimately, I argue that criminal legal aid lawyers are set up to fail by the current financial conditions within which they must work.     

The Differential Management of Financial Illegalisms: Assigning Responsibilities in the Libor Scandal

How, in a context of growing critiques of financialization, can law contribute to protecting the legitimacy of finance? This paper argues that the assignment of responsibilities between individuals and organizations plays a decisive role, using the recent Libor scandal as an empirical illustration. To do so, the paper offers a Foucauldian framework, the differential management of financial illegalisms, dedicated to the study of illegalities in financial capitalism. The comparison of the legal treatment of two manipulations of Libor, this key benchmark in financial markets, reveals how mid‐level traders have been the object of criminal prosecution, while law undervalued the role of top managers and organizations. To capture how differential management is performed in practice, I analyze precisely how the conflict‐resolution devices (criminal trial vs. settlement) and the social categorizations prevailing in the two manipulations of Libor favor different forms of responsibility, individual or organizational. I conclude by exploring the implications of law's relationship to financial legitimacy.     

We [Should] Take Care of Our Own: The Role of Law and Lawyers in Criminal Justice and Criminology Programs

Law-related courses, and more broadly the place of the law and lawyers in criminal justice programs, are the focus of this paper. I believe that the importance of the law, the study of legal issues, and the way in which the law is taught in criminal justice programs is in need of significant refinement. We need more law-related courses in the curriculum, at both the undergraduate and graduate level, more PhDs with an understanding of the law, and more legal research done by criminal justice scholars. In the pages that follow, I make the case for changing how we approach the study of law in criminal justice undergraduate and graduate programs.     

论法律拟制思维在刑法中的重要性

刑法中存在普遍的＂有意将不同者等同视之＂的＂法律拟制＂现象,这种＂以假为真＂的作法并不必然与刑法的基本原则相违背,而有可能是在坚持刑法基本精神的前提下的一种刑事立法层面上的有效方式。所以,对刑法中拟制现象的研究不能仅限于＂刑法的拟制性规定＂,而应该以＂法律拟制＂本身所代表的标准来审视刑法中的拟制现象。     

Coerced work during parole: Prevalence,mechanisms, and characteristics

Coerced work on parole occurs when people are required to work under the threat of criminal legal repercussions. In the face of barriers to “good” work for people after prison, coercion helps to funnel parolees into positions at the bottom of the labor market. Parolee workers in these positions experience issues common to precarious, low-wage work (low pay, hazardous working conditions, and labor law violations), as well as heightened vulnerability to predatory employers and exposure to parole-prohibited activities. Because of the threat-backed requirements to work, however, parolees must choose to either accept this “bad” work or face potential sanctions. Using mixed-methods, including a novel form of respondent-driven sampling I call “Hybrid-RDS,” this article documents the prevalence of coerced work for people on parole in Los Angeles County, identifies the mechanisms through which coercive work operates, and illustrates the problematic employment conditions of coerced work after prison.     

Criminal and Procedural Fairness: Some Challenges to the Presumption of Innocence

The presumption of innocence (POI) requires all judges, juries, and other officials in a trial, to presume and treat any accused of criminal wrongdoing as innocent, until he or she is proven guilty. Although a POI lacks an authoritative definition, this overarching principle of procedural fairness is so robust and vital for the exercise of legal power in matters of criminal law that one rarely finds anyone questioning its standing. In this article I examine the rationale behind the POI from a different perspective. The basic assumption is that this procedural standard captures the tenor of a broader principle which seeks to ensure fairness in criminal proceedings as well as in criminal law doctrine. I argue that honouring a principle of fairness is not exclusively a matter of criminal procedural law but also something that is deeply rooted in other areas of criminal law doctrine. Hence: not maintaining a principle of fairness in criminal law doctrine could lead to the POI being compromised or even undermined. In the article, I draw attention to three areas in which I believe that criminal law policies threaten a principle of fairness: criminalising remote harm, doctrine of ignorance of law and inversed presumptions of guilt. My conclusion is that some solutions to so called doctrinal problems in criminal law, are questionable and their practical consequences (on a general level) are, at least partially, equal to treating an individual (in a trial) as guilty for something for which he or she ought not to be accountable. Hence: gaining the support of a POI could thus work as principle for keeping the use of criminal law moderate and in accordance with a principle of fairness.     

Hot spot trafficking: a theoretical discussion of the potential problems associated with targeted policing and the eradication of sex trafficking in the United States

Throughout the United States, legal professionals and advocates have taken measures to address the access to victims of sex trafficking. A commonly accepted practice has been to advocate for the removal of ‘sex for sale’ advertising in free media such as Craigslist and Backpage. Although this action against the solicitation of prostitution has been celebrated by many advocates and legal professionals, the removal of such advertisements does not directly affect the prevalence of sex trafficking. In fact, displacement theory suggests that the removal of solicitation advertisements and targeted policing forces traffickers to simply advertise elsewhere or become more creative in selling the victims, thereby concealing the act of sex trafficking and making it less identifiable. Although we do not advocate for the maintenance of ‘sex for sale’ advertisements, the process of removing these ads is counterproductive, having little positive impact on the incidence of sex trafficking in the United States. Rather, it forces both traffickers and victims to bury deeper in the already hidden world of sex trafficking. Policy implications derived from criminal displacement theory and research are provided.     

Cultural Criminology and Sex Work: Resisting Regulation through Radical Democracy and Participatory Action Research (PAR)

Taking a feminist cultural criminological analysis to the regulation of sex work in the United Kingdom, this paper argues against the dominant deviancy and the increasingly abolitionist criminal justice model for regulating sex work. The paper begins by offering a critique of the dominant regulatory regimes which have operated since the Victorian era, amended in part in the 1950s with Wolfenden, and currently being reinscribed with the Home Office strategy on prostitution and various pieces of legislation. The focus is specifically upon research with female sex workers and the usefulness of using Participatory Action research methodologies (PAR) with sex workers, agencies, and policy makers in order to foreground the diverse voices and experiences of sex workers, challenge the current focus on abolitionist criminal justice regimes and outcomes, and offer an alternative framework for a cultural materialist analysis of sex work, drawing upon the work of Nancy Fraser.     

刑法关怀与刑法解释

刑法应体现法律之公平善良的特质 ,刑法关怀是指刑法对自然人、社会组织及社会所给予的刑法关注、刑法抵御和刑法保护 ,刑法解释即有权解释 ,是指有权机关依据一定原则使用法定方法对法律文本所作的阐释 ,是连结刑事立法与刑法适用的纽带和中介 ,是折射和反映刑法关怀的最佳视角。欠缺刑法关怀的刑法解释在一定程度上说可能是合法的但未必是合理的。从刑法关怀的维度审视我国现有的刑法解释 ,一方面在于把刑法关怀坚持到底 ,另一方面在于反思刑法解释的真正科学的定位 ,由此建立合法合理的刑法解释体系。     

Intention and Attempt

Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the “moral character” or “intentional structure” of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the “continuity thesis,” according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.     

我国刑法中管理秩序法益还原为实体性法益之提倡

当前我国刑法理论往往将行政犯的法益界定为管理秩序(制度)法益,但是对于这一法益的界定,要么语焉不详、要么将其界定为抽象的行政管理秩序(制度),如此模糊的界定,使管理秩序法益日益沦为"口袋法益"。产生这一问题的根本原因在于误认为所有行政法益均可以在达到一定量的情况下上升为刑事法益,加之没有区分刑法法益与规范保护目的,导致单纯的行政管理秩序混入刑法法益之中。应将前置法秩序和单纯行政管理秩序这两个行政法益从当前刑法法益中驱逐出去,根据法秩序统一原理借助前置法将适格的刑法管理秩序法益还原为实体性法益。     

Crime, Freedom and Civic Bonds: Arthur Ripstein’s Force and Freedom: Kant’s Legal and Political Philosophy

There is no question Arthur Ripstein’s Force and Freedom is an engaging and powerful book which will inform legal philosophy, particularly Kantian theories, for years to come. The text explores with care Kant’s legal and political philosophy, distinguishing it from his better known moral theory. Nor is Ripstein’s book simply a recounting of Kant’s legal and political theory. Ripstein develops Kant’s views in his own unique vision illustrating fresh ways of viewing the entire Kantian project. But the same strength and coherence which ties the book to Kant’s important values of independence blinds the work to our shared moral ties grounded in other political values. Ripstein’s thoughts on punishment are novel in that he embeds criminal law, both in its retributivist and consequentialist facets, into Kant’s overarching political philosophy to show how criminal law can be seen as one aspect of the supremacy of public law. But a criminal law solely focused on the preservation of freedom takes little notice of the ways criminal law need expand its view to account for how a polity can restore the victim of a crime back to civic equality, reincorporate offenders after they have been punished and cannot leave past offenders isolated and likely to reoffend, resulting in the rotating door prison system and communities of innocents who remain preyed upon by career criminals. Lastly, a political theory that does not prize our civic bonds will ignore the startling balkanization of our criminal punishment practices, where policing, arresting and imprisonment become tools of racial and social oppression. In illustrating the benefits in viewing criminal law as a coherent part of Kant’s political theory of freedom, Ripstein also highlights what is absent. It then becomes clear that though Kant presents one important facet of punishment, only a republican political theory can meet the most pressing moral demands of punishment by reminding us that criminal law must be used to preserve and strengthen civic society.     

Penal Boundaries: Banishment and the Expansion of Punishment

We use this article to argue for greater recognition of legally imposed spatial exclusion—banishment—as a (re)emerging and consequential social control practice. Although the new social control techniques that entail banishment are buttressed by a blend of civil, administrative, and criminal law, they are best understood as punitive in nature. This argument is supported by two empirical findings. First, interviews with the banished indicate that spatial exclusion often has significant negative consequences akin to those identified by Sykes (1958 ) in his seminal account of the pains of imprisonment. Second, court data show that the growing use of civil and administrative banishment has increased the number of criminal cases involving allegations of noncompliance. These findings suggest that analysts of punishment might usefully broaden their focus to include phenomena that combine civil, criminal, and legal authority, and are not defined as punishment by their advocates.     

跨境证券犯罪刑事管辖及法律适用探讨

境内与境外的证券市场适用不同的法律监管体制,跨境证券犯罪的跨境特征可能使境内境外对相关证券犯罪均具有刑事管辖权,从而引发刑事管辖冲突。对于跨境证券交易的监管和法律适用,无论是在法律规定层面还是在司法实践层面,均应遵循“主场原则”。应明确监管职能上的分工以避免适用不同法律法规的混乱情况,应体现最大的监管效能并减少区际法律冲突。跨境证券犯罪的刑事管辖权归属应充分尊重行政监管原则和考虑前置性法律的适用,并与行政管辖权归属保持一致。跨境证券犯罪的刑事管辖权归属应考虑犯罪行为社会危害的主要发生地。以内幕交易为代表的跨境证券犯罪的主要行为是“交易”,根据区际刑事管辖冲突的解决规则,应由交易行为的发生地管辖,按照交易地的刑法对相关行为进行刑事评价。     

Women's law: methods,problems, values

Conclusion The five areas of women's law that I have chosen to focus — money law, housewives' law, paid-work law, criminal law and birth law — represent different coordinating perspectives on women's legal position. These perspectives could certainly have been supplemented by others, for example, discrimination law. The feminist perspective can also be used in several traditional areas of legal science e.g., social insurance law, tax law, family law etc. I, however, have chosen a problematic other than the traditional one: first, to underline the importance of theory through the development ofconcepts anddiscussions of values in women's studies in general; and second, to indicate the especial fields in focus within the Institute of Women's Law at the University of Oslo. Through the perspective discussed in this article we think that we are on our way to describe, explain and understand women's legal status. The fundamental aim is to improve women's position both in law and society.