不放弃追诉政策--国家介入家庭暴力的价值选择

本文针对国家是否应该介入家庭暴力案件进行探讨 ,并通过了解美国在家庭暴力方面有关的立法和司法的改革与发展过程 ,以及围绕着对著名的“不放弃追诉”政策的争论 ,提出在我国国家司法机关介入家庭暴力 ,虽然存在一定的缺陷 ,但总体上是利大于弊 ,具有正当性和可行性。     

Domestic Violence Victims' Behavior in Favor of Prosecution

Abstract

This article examines how economic, emotional and social-power related factors affect victims' behavior in favor of prosecution during police investigations. Data drawn from police records and police narrative reports indicated that mutual charge, dual arrest, the severity of assaults and the severity of injuries suffered by victims negatively affected the victims' behavior in favor of prosecution. These findings suggest that the norm of unequal relationships between men and women combined with an indiscriminate use of mutual charge and dual arrest without considering the defensive or offensive nature of violent acts can reduce trust in the criminal justice system among women victims of domestic violence and decrease the victims' interest in pursuing prosecution.     

159例家庭暴力损伤的法医学鉴定分析

目的 探讨家庭暴力损伤的特点及其有关的法医学鉴定问题。方法 对１９９８年４月～１９９９年１２月间来诊的１５９例家庭暴力损伤鉴定案件进行回顾研究。结果 家庭暴力的受害者绝大多数为妇女（占９３．１％）,主要发生在配偶间（８５．５％）,其次为虐儿（５％）。家庭暴力一般发生在家中,以晚上为发生高峰。致伤方式以拳脚为主,其次为随手可得的钝器或锐器。损伤多为软组织损伤;有４０％的受害人投诉前未去医院就诊;损伤     

159例家庭暴力损伤的法医学鉴定分析

目的　探讨家庭暴力损伤的特点及其有关的法医学鉴定问题。方法　对 1 998年 4月～ 1 999年 1 2月间来诊的 1 59例家庭暴力损伤鉴定案件进行回顾研究。结果　家庭暴力的受害者绝大多数为妇女(占 93 1 % ) ,主要发生在配偶间 ( 85 5% ) ,其次为虐老 ( 7 5% )和虐儿 ( 5% )。家庭暴力一般发生在家中 ,以晚上为发生高峰。致伤方式以拳脚为主 ,其次为随手可得的钝器或锐器。损伤多为软组织损伤 ;有4 0 %的受害人投诉前未去医院就诊 ;损伤程度多为轻微伤 ,达轻伤标准占 1 0 %。结论　家庭暴力损伤具有隐藏性和复杂性 ,准确及时地进行法医学鉴定可为受害人主张权利提供有力的证据和帮助 ,对揭露家庭犯罪有着重要意义     

The Importance of Male Batters’ Attributions in Understanding and Preventing Domestic Violence

The present article reviews the literature regarding the importance of taking into account male batters’ attributions in order to understand and to curtail their violence. Many treatment programs have been devised to stop domestic violence (DV); however, little comparative research exists. Therefore, we are unable to determine which techniques are effective and which are not. We contend that uncovering battering men’s attributions is important in understanding DV, and specifically, that these attributions are the key to curtailing DV. We present a typology of battering men’s attributions. What is common to these attribution styles is the evasion of responsibility for commission of, and for the need to take affirmative action to stop, the violence. These attribution styles have been found to increase battering men’s hostility and stress, their risk for engaging in violent behavior, as well as enabling battering men to continue their violence unchecked. Therefore, attributions are a crucial ingredient in DV and must be addressed directly and intensely in DV treatment programs in order to increase their (as yet limited) effectiveness.     

An Exploratory Analysis of Florida Law Enforcement Domestic Violence Policies

The high social cost of domestic violence has caught the attention of lawmakers and criminal justice agency administrators across the country. As public awareness and concern over the incidence of domestic violence has risen, domestic violence legislation has focused on, among other things, the law enforcement response to domestic violence. The purpose of this study is to examine Florida law enforcement agency response to domestic violence by analyzing agency standard operating procedures (SOPs) across measures identified in the Florida Model Policy for Domestic Violence. Utilizing content analysis, the authors identify agency policy mandates including the number of officers responding to the scene, the use of specialized units, availability of victim advocates, and procedures for investigation.     

The Influence of Legal Reform on the Probability of Arrest in Domestic Violence Cases

Using domestic violence incidence and arrest data from Maryland (1991–1997), this research examines whether the proportion of incidents that result in arrest increased due to a legislative initiative implemented in 1994 and, if so, whether this change is uniform across different types of offenders (race and gender) and offense characteristics. Using interrupted time‐series analysis (ARIMA), we observe an increase in both the number of incidents reported to police and the percent of reported cases resulting in arrest. The legislative intervention has a significant positive impact on arrest likelihood above and beyond the increase over time for the state as a whole. While arrest probabilities increased across the board for males and females, African American and Whites, the ARIMA models do not suggest that the legislation differentially impacted arrest probabilities for these groups.     

The End of Domestic Violence

In this article, I examine the rationales that have been given for extending domestic violence legislation to associated persons. I argue that the empirical and principled rationales are unfounded and that the ideological rationale is reactionary. With regard to the empirical rationale, the extent of violence that the aggregate of associated persons suffers is not high enough to justify privileging associated persons over other citizens with regard to protection from violence. In relation to the principled rationale, the impetus for domestic violence legislation was based on isolation and inequality, which are not experienced in particular by the category of associated persons when taken as a whole. With regard to the ideological rationale, it is worrying that intimacy and equality are emerging as the touchstones of a newer rationale for domestic violence legislation, which rightly has more to do with isolation and inequality than intimacy and equality.     

The Prosecution Role where Courts Decide Cases

This article explores the role played by prosecutors during the court stage of criminal proceedings. It complements Peter et al.’s chapter on negotiated case settlements in showing how the power to decide cases is divided between judges and prosecutors when cases are taken to court. Providing information as to, e.g. what influence prosecutors in the 11 study countries have on what evidence is brought to court in “normal” and accelerated court proceedings, this chapter explores the balance of responsibilities in court rooms across Europe.     

加拿大家庭暴力项目的发展

在消除对妇女的歧视方面 ,从性别 (sex)到社会性别 (gender)的术语上的转变拓展了政府的人权义务 ,各国政府有法定义务须纠正历史建构的男女两性之间的结构性不平等。随着 2 0世纪 90年代期间国际社会在优先事项上的改变 ,对妇女的暴力成为国际日程的重要议题。由于对妇女的暴力是个结构性问题 ,因而要求国家承担预防针对女性的暴力并改变结构不平等的义务 ,后者使妇女的屈从地位永久化 ,使妇女更易于遭受暴力的侵犯。根据消除对妇女歧视委员会 1 989年发布的第 1 2号一般性建议 ,《消除对妇女一切形式歧视公约》第 2、第 4、第 1 1、第 1 2…     

Righting Domestic Violence

For too long human rights have been used to support a legalapproach to domestic violence which is non-interventionist.This article discusses the ways in which human rights can beused to compel an approach to cases of domestic violence whichrequires state action to protect those harmed by domestic abuse.It argues that the state has an obligation to protect its citizensfrom torture, inhuman and degrading treatment and this obligationis heightened in respect of vulnerable adults and particularlychildren. Further, correctly understood, rights to respect forprivate and family life, rather than being a barrier to stateintervention can be seen as justifying it.     

Victim Noncooperation in the Prosecution of Domestic Assault

In recent years increased attention has been focused on the response of the criminal justice system to domestic violence. Several studies have attributed the low rate of prosecution for spousal assaults to noncooperation on the part of police, prosecutors, and judges. A discussion of the role played by victim noncooperation in the prosecution process has been conspicuously absent. This article presents preliminary findings from a study of approximately 6,200 cases of domestic assaults reported to law enforcement authorities. The incidence and correlates of victim noncooperation are outlined at four decision points.     

商标侵权案件中重复起诉的识别

商标侵权案件中重复起诉的识别主要体现在当事人相同的识别和诉讼标的的识别。当事人相同的识别要区分商标许可和商品流通两个环节。商标许可中当事人是否相同以许可人和被许可人之间形成的共同诉讼或诉讼担当来识别;商品流通中当事人是否相同以被诉侵权商品的生产者在前案中的责任范围来识别。诉讼标的的识别以实体法律规范为依据,从前后两案的诉请保护的商标是否同一、商品类别是否同一、被诉侵权标识是否同一来确定,当三者同一时可以认定为同一诉讼标的,商品型号和商品系列不构成识别诉讼标的的要素。商标侵权重复起诉的识别还应当关注停止侵权民事责任的效力等因素。     

Toward a Feminist State: What Does ‘Effective’ Prosecution of Domestic Violence Mean?

This article examines domestic violence criminal prosecutions and addresses what 'effective' prosecutorial action means in such cases. The argument elaborates on a point recently articulated by the UN Special Rapporteur on Violence against Women, which links effective prosecution of violence against women to the creation of a less patriarchal society. The article concludes that 'effective' prosecution of domestic violence means prosecution which constitutes the State as less patriarchal ceteris paribus .