Elder abuse and neglect: challenges and directions for legal reform

The last two decades have heralded an increased community and professional awareness of the phenomenon of elder abuse and the challenges it poses to the enjoyment of the human rights of some older people. The contemporary Australian legal system provides many of the components of a framework required to assist in the promotion of the rights of the elderly and in the prevention and remedy of elder abuse. This framework acts in concert with health and community services dedicated to the advancement of health and wellbeing into old age. In the future, the acknowledgment and adoption of international legal principles which are directed to the needs of the elderly, the reform of existing domestic legislation and the development of new elder-specific statutes may all impact upon the incidence and consequences of elder abuse. To date, no Australian jurisdiction has adopted a legislative regime targeted specifically at the issues confronting older Australians who may be vulnerable to abuse and neglect. This column looks at some of the options for legal reform in this area.     

Self-represented litigants: the overlooked and unintended consequence of legal aid reform

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) comes into force in April 2013 and is widely expected to lead to an increase in the number of self-representing litigants (SRLs) in the family courts. Taking a practitioner focus, this article considers the negative impact of this increase and considers possible measures for combating the practical pitfalls such a growth in SRLs presents.     

Recovered memories of childhood sexual abuse: Current findings and their legal implications

Recent research on recovered memories of childhood sexual abuse has shown that there are at least two types of recovered memory experiences: those that are gradually recovered within the context of suggestive therapy and those that are spontaneously recovered, without extensive prompting or explicit attempts to reconstruct the past. By focusing on well‐known imperfections of human memory, we were able to find differing origins for these recovered memory experiences, with people recovering memories through suggestive therapy being more prone to forming false memories, and with people reporting spontaneously recovered memories being more prone to forgetting prior incidences of remembering. Moreover, the two types of recovered memory reports are associated with differences in corroborative evidence, suggesting that memories recovered spontaneously, outside of suggestive therapy, are more likely to correspond to genuine abuse events. In this paper, we summarize recent research on recovered memories and we argue that these scientific findings should be applied in the justice system, but also in clinical practice.     

Corrupt intermediaries in international business transactions: between make, buy and reform

Attempts to deter corruption have little recognized the operation of intermediaries. This study takes a New Institutional Economic-perspective, supported by a variety of case studies, to identify firms’ choices of when to engage corrupt intermediaries (buy) and how to approach reform. It argues that firms should be held unbendingly liable for the operation of their intermediaries. Reform may also focus on certifying “good” intermediaries and holding the certifier liable for the performance of its agents. Prohibiting intermediaries is not advisable, as intermediation can be either arranged in-house (make) or mixed with legal services. Registration and auditing of intermediaries provides a more promising avenue for reform. Legislators should balance the additional regulatory burden by granting a wage premium to registered intermediaries and denying legal recourse to unregistered competitors.     

Adolescent girls investigated for sexual abuse: history,physical findings and legal outcome

Objective: The aim of the study was to summarize the history of assault and record the results of medicolegal examination in adolescent girls under investigation for alleged sexual abuse, and to monitor the outcome of the legal process. The investigation period was 1990–94. Method: A consecutive series of 94 0-para girls, aged 9–22, median age 15.0 years, were examined in the head-to-toe manner including anogenital examination. Girls were referred from investigating police and social authorities. Only non-acute examinations were performed. Findings considered consistent with abusive vaginal penetration were hymenal distortion including deep clefts, hymenal and vestibular scarring, and introital diameter permitting vaginal inspection with a 17 mm speculum in the absence of consensual intercourse. Perianal scarring was recorded. STD sampling was made on indication. Findings were documented on body sketches. Medicolegal conclusions were grouped into three categories according to history and physical findings. Information on the outcome of legal procedures was collected from referring authorities. Results: For 82% (77/94) of the girls, referring agencies provided examining physicians with a detailed and consistent history of abuse, presented results comprise these 77 girls. Intrafamiliar abuse was alleged by 81% (62/77), onset prior to menarche by 53% (41/77), and repeated abuse by 74% (57/77) of the girls. Abusive genital penetration was reported by 77% (59/77) and anal penetration by 19% (14/77). Sequelae after admitted self-inflicted injury were found in 15% (12/77). Deep hymenal celfts and/or vestibular scars were found in 59% (35/59) of the girls reporting penetrative abuse, compared with 6% (1/16) when non-penetrative abuse was alleged, P<0.001. Girls with experience of voluntary intercourse could all be examined with a 25 mm speculum. Of the 17 girls without experience of consensual intercourse but alleging abusive penetration, 47% (17/36) could easily be examined with a 17 mm speculum, compared to none of 13 reporting non-penetrative abuse, P<0.001. Non-specific anal abnormalities occurred in 10 (13%) girls; more often when anal abuse was reported, P<0.001. No specific STDs were found. The medicolegal conclusion supported a history of abusive genital penetration in 41 (69%) cases; findings were non-specific in 11 cases and a normal anogenital status was found in 25 cases. The alleged abuse of 34 of the 77 (44%) girls was tried in court. One suspect was acquitted, 32 men were convicted of the abuse of 33 girls. Eleven perpetrators admitted abuse, and their histories were in concordance with the abuse alleged by the victims, as well as with the physical findings. Conclusion: A medicolegal diagnosis of alleged non-acute cases of sexual abuse relies on a detailed history. Adolescent girls alleging abuse may exhibit signs of admittedly self-inflicted extragenital injury. Our findings confirm that non-penetrative sexual acts leave no lasting genital signs, but that repeated abusive genital penetration significantly more often than non-penetrative abuse leaves deep posterior hymenal clefts and/or vestibular scarring, and a hymenal opening allowing examination with 17–25 mm specula also in girls without experience of voluntary intercourse. In cases with a confessing perpetrator, no discordance was found between the history of the victim, medicolegal conclusion and the history of the perpetrator.     

TMT contracts: Avoiding termination and achieving positive realignment: How legal counsel can make a difference - A UK perspective

“The task of a leader is to get his people from where they are to where they have not been” Henry A. KissingerWith stuttering growth in the Western economies where major sourcing and TMT (Technology, Media & Telecoms) contracts are pervasive, it is perhaps not surprising that internal and external legal counsel are increasingly being called upon to advise clients on termination options and strategies to effect or oppose a threatened termination for breach of contract. This short paper considers why this has happened and the other factors which are in play which have meant that advice on termination and the renegotiation of contracts in this context has become more common. Expertise in this area is part of an IT lawyer’s tool kit and we consider that this is an area where internal and external legal counsel can make a substantial difference in delivering solutions to their clients.In this paper I talk about termination and renegotiation interchangeably. The reason for this as will become clear is that all forms of termination, whether they are consensual or contested, will involve some form of renegotiation of the terms of the contract between the parties. This is because it is almost impossible except perhaps in the simplest of installations to predict the nature in which a supplier or a customer may wish to change the services provided, and consequently even the most carefully crafted of exit and transition clauses, schedules and plans will require some form of post-contract negotiation between the customer, the outgoing supplier and potentially a new supplier or suppliers. This will necessarily involve some form of renegotiation of the terms of the contract between the parties.This paper looks at renegotiation in the context of a termination scenario rather than dealing with renegotiation during the normal course of operation of the contract.