论被害人过错影响刑事责任之正当依据

有关被害人过错影响刑事责任的正当依据主要存在“风险创设”、“比较过错”、“值得保护”以及“自我答责”、“期待可能性”几种代表性的理论。这些理论在一定程度上说明了被害人过错影响刑事责任的正当性基础，但这些理论的共同缺陷在于：首先，脱离刑事责任的内在结构本身，片面地理解犯罪构成对刑事责任的决定性作用；其次，将被害人过错理解为纯客观情境因素，无视被害人这一“人”的能动要素对犯罪构成各个层面的复杂、全面的影响。因此，这些理论的解释力和说明性都是有限的。只有从刑事责任的内在构造入手，分析被害人过错对刑事责任内在构成要素的全面影响，才能真正探寻到被害人过错影响刑事责任的正当依据。     

The Vanishing Victim: Criminal Law and Gender in Jordan

Focusing on the issues of rape and honor killings in the Arab world, particularly Jordan, this article investigates the use of criminal laws as an element in political legitimation. These laws are an arena for contestation not merely over policy choices, but over the nature of the sociopolitical order as well. Recent debates over the alteration or preservation of such laws have highlighted the use of legal codes as an expression of dominant values in a political system. I argue that the use of gendered legal systems to serve legitimation claims has important implications for the prospects of democratization.     

Police Empathy and Victim PTSD as Potential Factors in Rape Case Attrition

This exploratory study investigated whether rape victims’ subjective perceptions of whether to proceed with legal action were associated with their experience of disclosing to the police during their initial interview. Specifically, the study investigated associations between symptoms of PTSD, shame and self-blame post-rape, subjective perceptions of police empathy and subjective perception of victims’ intentions to take the case to court. Participants (N = 22) were found to have elevated levels of PTSD severity, shame and self-blame. Police empathy was positively correlated with victims’ ratings of likelihood of taking the case to court, and negatively correlated with PTSD severity and shame. These preliminary findings suggest that training police officers how to respond more empathically to psychologically distressed rape victims may potentially help reduce victim attrition rates.     

System-Justifying Functions of Complementary Regional and Ethnic Stereotypes: Cross-National Evidence

According to system justification theory, stereotyping is an ideological process that serves to justify the status quo and bolster the legitimacy of the existing social order. The present research investigates the system-justifying role of complementary stereotypes in which high-status groups are represented as agentic and achievement-oriented and low-status groups as communal and interpersonally oriented. We demonstrate that such complementary stereotypes: (a) reflect a high degree of consensus across high- and low-status perceiver groups; (b) are endorsed more strongly to the extent that system justification motives are chronically or temporarily activated; and (c) serve an ideological function by enhancing the perceived legitimacy of the existing social system. Evidence concerning regional and ethnic stereotypes in Italy, England, and Israel provides converging evidence for the system-justifying function of complementary stereotypes and reveals remarkable similarity in the contents of stereotypes of different groups that happen to occupy similar status positions in their respective societies.     

Beliefs on Sexual Violence in the Context of System Justification Theory: The Role of Hostile Sexism and Beliefs in Biological Origins of Gender Differences

Social Justice Research - Estimates suggest that around 20% of women may have experienced rape. Various misconceptions about rape (i.e., rape myths) are closely related to victim blaming. In our...     

Status, Threat, and Stereotypes: Understanding the Function of Rape Myth Acceptance

This study applied system justification theory to understand the function of rape myth acceptance. Participants read a rape scenario that manipulated the difference in status between the perpetrator and victim, as well as the potential threat to perpetrator as depicted by whom the victim told about the rape. People’s opposition to equality and gender separately and together predicted rape myth acceptance. People with higher opposition to equality reported less rape myth acceptance when a higher-status perpetrator got away with rape than when he was reported to police. Conversely, people with lower opposition to equality reported more rape myth acceptance when the higher-status perpetrator got away with rape. People’s opposition to equality and gender interacted such that men with lower opposition to equality also reported more rape myth acceptance when the equal- and lower-status perpetrator got away with rape. Gender predicted rape myth acceptance such that when the lower-status perpetrator was reported to the police, women reported more rape myth acceptance whereas men reported less rape myth acceptance. This is the first study to show that rape myth acceptance is malleable and strategically motivated. These findings have implications for not only understanding rape myth acceptance, but also other ideologies that explain unethical behavior by advantaged groups.     

Building a Reputation on National Security: The Impact of Stereotypes Related To Gender and Military Experience

In a post‐9/11 world, all senators must establish their national security credentials with voters. Yet senators do not compete for leadership on an equal basis. Through an analysis of bill sponsorship, Sunday talk show appearances, and interviews with Senate staff, I demonstrate that defense policy is made in a partisan and gendered context. Gender stereotypes favoring male defense leadership create an additional hurdle for women, particularly Democratic women, as they seek to establish their reputations on security. By contrast, a record of military service facilitates senators' efforts to achieve action on their proposals and gain media attention for their views.     

我国刑事被害人的权利保障制度及完善

被害人作为弱者,绝非仅仅承担一种可能的危险或风险,而是实际蒙受了肉体、精神和财产诸方面的损害和损失。因此,国家对于被害人合法权益的保障,要优先于被告人,并着眼于构建这样一种诉讼机制:即被害人能够充分参与并有效影响诉讼的进程和结果,能够直接和有效地对司法权进行监督和制约,被害人的人身伤害和精神损害能够得到及时和合理的赔偿或国家补偿,司法机关决定对罪犯的监外执行、减刑和假释应当听取被害人意见等。     

Race-Specific Gender Equality and Rape: A Further Test of Feminist Hypotheses

Feminists have long argued that structural inequality between men and women influences the prevalence of rape. The patriarchal maintenance hypothesis predicts that gender inequality increases rape, while gender equality ameliorates rape (Whaley and Messner 2002). Alternatively, the backlash hypothesis predicts that gender equality exacerbates the rape problem (Russell 1975; Williams and Holmes 1981). To date, no study has explored this relationship with respect to race. In the present study, we use a cross-sectional design with racially disaggregated census and crime data in order to assess the differences among White and Black women in terms of their status along educational, employment, income, and occupational dimensions, and their risk of victimization. The findings indicate that the relationship between equality and rape is masked in the model that includes all women, but becomes apparent in the race specific models. This revised version was published online in July 2006 with corrections to the Cover Date.     

被害人作证及其陈述的运用

2011年国际货币基金组织前总裁斯特劳斯.卡恩性侵案经过长达3个月诉讼后被撤销,凸显了被害人作证及其陈述证据效力的特殊性。被害人和证人虽然都"身临其境",目睹了犯罪事实的发生过程,但被害人还"身受其害",这决定了被害人作证与证人作证既有共同点又存在许多重大差异,二者不能混同。被害人的当事性要求立法从作证适格性、传闻证据规则、意见证据规则、任意性规则、关联性规则及合法性规则六个方面对被害人陈述的证据能力进行合理限制;同时规定被害人陈述原则上不能作为定罪的唯一根据,其证明力需要补强。     

Effects of Perpetrator and Victim Gender on Negative Outcomes of Family Violence

Growing up in a violent home predisposes children to a host of behavioral and emotional difficulties. This study examined whether perpetrator and victim gender have an impact on depressive symptoms and aggressive behavior for victims of child physical abuse (CPA) and also with regard to witnessing interparental violence (IPV). This study also examined whether witnessing siblings being abused would elicit high levels of depressive symptoms and aggressive behavior. College students (n = 675) were assessed for both exposure to IPV and child physical abuse prior to age 18. Participants completed measures of depression and aggression. With regard to victims of CPA, participants victimized by both parents and those victimized by mothers only had significantly higher levels of aggression. For depressive symptoms, females having both parents as perpetrators or fathers only had significantly higher depressive symptoms. With regard to witnessing IPV, being abused by both parents was associated with endorsement of more aggression and depressive symptoms. With regard to witnessing sibling violence, the results were similar to those found for victims of CPA.

The Role of Emotion and Cognition in Juror Perceptions of Victim Impact Statements

Recent legislation has contributed to an increasing number of victims participating in the trial process by way of providing victim impact statements (VISs). The present study evaluated jurors’ perceptions of VISs in a jury-eligible sample. Participants were 402 jury-eligible community members in the southwestern United States. Using a vignette-based method, VIS presence and content (i.e., Victim Harm versus Victim Emotion information) were examined for their influence on sentencing decisions and blame attribution. Individual differences of need for affect (NFA) and need for cognition (NFC) were featured as moderators of these relations. Notable results included significantly lengthier sentencing recommendations and decreased levels of victim blame in the presence of a VIS, regardless of content. In addition, juror NFC was significantly positively associated with perpetrator blame, while NFA moderated the relation between VIS content and sentencing length. The presence of a VIS impacted blame and sentencing, although jury panel member individual differences moderated such effects. Implications for victim rights policy, trial consultation, and social–emotional theory are discussed.     

The Effect of Gender of Perpetrator and Victim on Perceptions of Psychological and Physical Intimate Partner Aggression

Most studies of third-party perceptions of intimate partner violence focus on heterosexual relationships and report that male-to-female aggression is perceived more negatively than female-to-male. Since gender of aggressor and gender of victim are consistently confounded in these portrayals, it is not clear whether the gender of the aggressor or the gender of the victim accounts for the effect. The present research manipulated gender of perpetrator and victim to unravel this confound. Two hundred and fifty one participants (166 females) read scenarios involving psychological or physical aggression between two males, two females, or a male and a female. Participants reported their perceptions of the encounter and the character and emotional reactions of the individual couple members. Physical aggression was evaluated more negatively than psychological aggression. Participants evaluated the encounter and the perpetrator and victim in a manner consistent with stereotypical gender roles, revealing more concern for female than male victims and greater denigration of male than female perpetrators. These results have implications for programs aimed at the reduction of intimate partner violence and the services and programs developed for perpetrators and victims.     

刑事被害人救助与刑事被害人权利在亚洲地区的发展进程

(一)被害人学在亚洲的传播由三位被害人学之父在第二次世界大战以后所推动的被害人学,在其历史发展的较早时期便已经传到了亚洲国家.     

Implementing Prior Judicial Decisions as Precedents: The Context of Application and Justification

The paper concerns the conditions and methods of using previous judicial decisions as a kind of precedents in the processes of application of law within the statutory legal order. The use of such decisions, not announced by the legislator, depends on the courts, undertaking such actions on the grounds of similarity of cases or of decisional processes. Such decisions do not become an exclusive validation argument and may create a situation of their potential conflict with legal regulations as well as an inferential supplementation of their content. Dissemination of such activity of the courts leads to the development of precedential practice (relevant to the statutory legal order), though, its actual jurisdictional role depends on proper justification of decisions, within which reference to these decisions should be adaptive (in relation to the elements of the current case), generalizing (forming elements of ratio decidendi) as well as argumentative and discursive (in respect of the way in which the decisional reasoning and arguments expressed in the prior justification are used).

     

"犯罪人-被害人和解"的制度设计与司法践行

“犯罪人-被害人和解”可谓是当下西方刑事法领域的焦点性话题之一。作为“犯罪人-被害人和解”运动的有力推进者,德国的立法与实践动向,尚未得到国内学界的应有关注。文章不仅对德国“犯罪人-被害人和解”制度的整体立法设计进行了分析,而且对“犯罪人-被害人和解”在德国实务上的具体运作、判例发展亦予以近距离观察。透过此种立法与司法的交错考察,文章试图以德国经验为基点,进一步反思“犯罪人-被害人和解”践行的成果、问题及可能出路,以提供前瞻性的、比较性的借鉴。     

The Effect of Participant Sex,Victim Dress,and Traditional Attitudes on Causal Judgments for Marital Rape Victims

This study investigated the effects of participant sex, victim dress, and attitudes influencing the tendency to blame a marital rape victim. College undergraduates completed the Attitudes toward Marriage Scale, an intervening cognitive task, and a read fictitious scenario of a marital rape incident where the victim was dressed somberly or seductively. Participants then completed a brief questionnaire. As predicted, males rated the victim more deserving of the attack than females. As predicted, the suggestively dressed victim was rated more responsible and deserving than the somberly dressed victim. As predicted, participants holding more traditional attitudes toward marriage were more likely to assign more victim responsibility and deservingness than participants with more egalitarian attitudes. These findings are discussed within an attitudinal framework.