死罪、死刑与期待可能性--基于受虐女性杀人命案的法理分析

本文从多起受虐妇女杀人命案量刑畸重的基本立场出发,首先研讨了引发此类受虐妇女杀人命案的社会经济文化原因及其相关近因,〔1〕指出:根据罪责刑相适应原则,此类受虐妇女杀人并不一般性地等同于死罪,更不当判处其死刑。在此基础上,作者比较分析了多种有关受虐妇女犯罪的法律出路构想,并提出了自己的主张。认为:立法上可以考虑在刑法总则中增设特定的、因其行为欠缺期待可能性或期待可能性较小而启动的“阻却责任事由”或“减轻责任事由”。据此,尔后人民法院就可以根据有关主客观情况,在证据确凿而充分的情况下,确认某些因“走投无路、确因自救或拯救家人而被迫杀人”的行为乃属欠缺“遵从法律的期待可能性”或“期待可能性较小”的行为,从而,依法可以免除或者减轻此类受虐妇女杀人的刑事责任。     

“受虐妇女综合症”的刑事责任减免意义:美国经验及启示

受虐妇女在长期持续的家庭暴力作用下不堪忍受实施的杀夫行为,在我国现阶段缺乏出罪空间,实践中也出现了较大的量刑差异。美国刑法将"受虐妇女综合症"这一心理学概念作为受虐妇女杀夫行为的抗辩事由,结合正当防卫抗辩,从而拓宽了此类案件的合法辩护空间。事实上,受虐妇女杀夫行为具有刑事责任减免的正当化根据,其违法性与有责性比一般杀人犯罪小,从刑罚目的上看,缺乏一般预防与特殊预防的必要性。在我国当前法律框架下,有必要强化"受虐妇女综合症"因素在刑事责任裁量中的作用,并与正当防卫、被害人过错等抗辩事由相结合,对其刑事责任的减免进行类型化处理。     

受虐妇女综合症专家证据在澳大利亚司法实践中的运用

在涉及家庭暴力的刑事案件中,如何处理以暴制暴杀夫的女性,保证她们获得公正的处遇,是法官面临的难题,受虐妇女综合症专家证据的运用,为破解此难题,提供了一种有效途径。本文立足澳大利亚若干个案,分析了受虐妇女综合症的含义及其在刑事审判中的运用原则、类型与效果,并阐述了受虐妇女综合症专家证据对刑事审判带来的挑战。这对于中国司法官员在刑事审判中如何导入受虐妇女综合症专家证据,具有很强的借鉴意义。     

家庭暴力受虐妇女庇护研究

通过家庭暴力受虐妇女庇护所救助家庭暴力受虐妇女是国际上通用的防止家庭暴力对妇女造成和继续造成伤害最直接且有效的方法.受虐妇女庇护所的正常运行需要立法、司法、社会意识、理论制度、运作机制等良好社会环境作为其有效支撑.我国家庭暴力受虐妇女庇护所现状令人堪优,只有为家庭暴力受虐妇女庇护所构建其正常运行所需平台,才能发挥其应有功效.     

论受虐妇女杀夫案的量刑

受虐妇女"以暴制暴"杀夫之后,法律对于这些妇女的审判也经历了从严厉到"宽容"的变迁。但在"轻刑化"的趋势中,各级法院对此类案件的轻重判决却差别很大。由于我国法律和司法解释对受虐妇女杀夫案件没有明文规定,导致各地法院在量刑标准上极不统一,处罚轻重悬殊。因此,统一对受虐妇女的量刑成为亟待解决刑罚新课题。     

受虐妇女综合症与杀夫案中正当防卫的认定

受虐妇女综合症是指生活在暴力虐待关系中的妇女所表现出的某些共同心理和行为反应,其主要理论依据是习得性无助理论和暴力循环理论。受虐妇女综合症理论重塑了正当防卫紧迫性的内涵,为非对抗性杀夫案中的正当防卫认定提供了理论依据,拓展了正当防卫制度的适用范畴。运用受虐妇女综合症理论需具备如下条件：适用主体与对象是受虐妻子与施暴丈夫;受虐者遭受施暴者持续性暴力虐待;受虐者难以脱离施暴者控制;存在紧迫性暴力威胁。非对抗性杀夫成立正当防卫需要受到严格的条件限制,对抗性杀夫能否成立正当防卫要区别而论。我国以往的司法解释有关受虐者伤害家暴者之正当防卫认定规定存在不协调之处,最新司法解释在很大程度上接纳了受虐妇女综合症理论的合理内核。     

受虐妇女杀夫案中刑事责任认定的新思考

宽严相济刑事政策的提出,有理由使我们对杀夫的受虐妇女给予更多的司法宽容和人文关怀。依照我国刑法的规定,借鉴英美等西方国家的"受虐妇女综合症"理论,该行为应当成立防卫过当或者正当防卫;再从量刑角度考虑期待可能性的有无以及期待可能性的程度,进一步酌情减轻或者免除对受虐妇女的刑罚处罚;制定专门的司法解释或者在准司法解释中明确行为性质、适用标准,公布一些判决成功的典型案例指导各地刑事审判中对"受虐杀夫"案的量刑,使其逐步走向轻刑化并相对统一,体现宽严相济刑事政策中所应当具有的国家尊重与保护妇女人权之义。     

期待可能性视角下的受虐女性犯罪量刑轻刑化

本文是从认为受虐妇女杀人命案量刑畸重的基本立场出发,其中探讨了此类案件在中国的现实情况以及西方国家提出的“妇女综合症”的适用困惑,并且提出了在期待可能性视角下的受虐女性犯罪量刑轻刑化的合理之处及现实意义,完善各项举措从而更好的体现罪刑法定和社会公平原则,为构建和谐社会添上一片完善的法治之瓦。     

主题研讨 家庭暴力:妇女面临的人权问题

引　言对妇女的暴力问题在 2 0世纪 70年代成为女权主义运动关注的焦点。在一些工业化国家如英国和美国 ,尽管妇女积极参与当时蓬勃发展的民权运动 ,但逐渐发现自己的需要和关注在这些运动中始终处于边缘境地。于是妇女开始自行组织起来 ,用社会性别这样一种新的分析方法来透视妇女生活中存在的种种压迫和剥削。随着女权主义分析将注意力聚焦在性剥削和男性在性方面对女性的控制上 ,强奸凸显为早期西方女权主义辩论和反对的重点。在反对强奸的运动中 ,强奸危机热线接到无数受虐妇女寻求救助的电话。这成为日后掀起受虐妇女运动热潮的契机 ,…     

死刑与期待可能性——基于受虐女性杀夫案的刑法法理分析

本文从贵阳市发生的一起受虐妇女杀夫命案量刑畸重的立场出发,首先研讨了引发此类受虐妇女杀人的社会经济文化原因及其相关近因,进而指出:根据罪责刑相适应的原则,此类受虐妇女杀人并不是一般性的死罪,也不应该判处死缓。在此基础上,本文认为:立法上可以考虑在刑法总则增设特定的期待可能性而启动的"阻却责任事由"或"减轻责任事由"。据此,依法可以免除或者减轻此类受虐妇女杀夫的刑事责任。     

Reaching African American Battered Women: Increasing the Effectiveness of Advocacy

This study reports findings from interviews with 242, primarily African American, battered women in Detroit. Most of the women rated domestic violence advocacy as very or somewhat helpful. Satisfaction with police and receiving referrals from the legal system were significantly associated with ratings of advocates helpfulness. Receiving information, being emotionally supported, and having advocates readily available and accessible were the most common reasons why women rated advocates as helpful. Women who gave advocates low helpfulness ratings described them as unavailable, unsympathetic, or ineffective in legally sanctioning abusers. Less than half of the women who experienced severe violence in the focal incident reported that advocates helped them with safety planning, and there was a low rate of follow-up on referrals provided by advocates. This analysis suggests that advocacy can be satisfying for urban, African American women, but more intensive services should be provided to make a significant contribution to their safety.     

American Indian and European American Women’s Perceptions of Domestic Violence

American Indian and European American women’s definitions and perceived causes for domestic violence were examined. Attitudes towards violence and battering as it relates to the self were measured with two scales. As predicted, results indicated American Indian women and European American women held different conceptualizations of what constitutes domestic violence and different notions concerning the cause of domestic violence. Also, American Indian women were more attuned to external causes for violence, while European American women referred to internal explanations for such violence. Differences in social and psychological histories of violence and attitudinal orientations toward violence were indicated. Legal and health system changes are recommended in order to combat violence in Indian country.

The effects of self-protective behaviors on injury for African American women in domestic violence situations

The stereotype of the strong, independent, and invulnerable African American woman may have implications in violent intimate partner relationships. More specifically, one behavioral manifestation of this stereotype is that African American women may be more likely to “fight back” in domestic violence situations. However, little is known about the consequences of these self-protective behaviors for African American women. To this end, this study will address whether forceful and nonforceful acts of resistance result in the desired effect of avoiding injury. Using a sample of incarcerated African American women, this study examines the effects of self-protective behaviors on injury for a marginalized population at a high risk of violence.

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Webster and the fundamental right to make medical decisions

Members of the American Medical Association, the American Academy of Child and Adolescent Psychiatry, American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American Fertility Society, American Medical Women's Association, American Psychiatric Association, and the American Society of Human Genetics have submitted an "amici curiae" brief in support of the appellees of "Webster." The brief did not endorse or oppose the view that the state's interest in fetal health is compelling as fetal viability. Instead, the brief said that: 1) everybody has the right to make medical decisions without the state interfering "up to the point where the state's compelling interest arises;" and 2) even after a compelling interest comes up, state rules must go along with good medical practices. Because some provisions of the Missouri law were not consistent with good medical practice, these provisions were not constitutional. The fetal viability testing requirement would increase risks to the woman and fetus without providing substantial information on viability. The counseling ban would prevent doctors from giving necessary information to pregnant women so that they could make informed decisions. The 1st section of the brief discussed "the medical background of pregnancy and abortion." The earliest age at which a fetus can survive has remained unchanged since "Roe." The medical complications and adverse health effects are fewer from than from childbirth. Abortions have become safer. The brief said that the "right of privacy" is broad enough so that a woman could decide whether or not to end her pregnancy. In "Roe," the Court found that if a woman was going to make a choice about pregnancy, this was the same as other private decisions which are protected in the Constitution. Individual medical decision making is "deeply rooted" in US "history and tradition." Accepted principles are reflected in the fact that the patient has a right to make these decisions based on the "liberty component of the Due Process Clause." Section 188.029 of the Missouri Law would make a doctor do certain tests for fetal viability. They would have no medical value, in most cases, and put a risk on the health of the mother. It was not related to any goal of the state, and was, therefore, unconstitutional. Section 188-205 of Missouri law - which says a doctor can't consult unless the mother's life is endangered was also unconstitutional.     

Biomechanics of knife stab attacks

In the past it has been assumed that the fingerprints of women tend to have "fine" epidermal ridge detail while men have "coarse" ridge detail. Past studies have examined this hypothesis but have not clearly demonstrated if observed differences are statistically significant. The goal of this study is to determine if women have significantly higher ridge density, hence finer epidermal ridge detail, than men by counting ridges that occur within a well defined space. If significant gender differences do exist then the likelihood of inferring gender from given ridge densities will be explored. This study focused on 400 randomly picked ten-print cards representing 400 subjects. The demographic composition of this sample population represents 100 Caucasian males, 100 African American males, 100 Caucasian females and 100 African American females all within the age range of 18-67. Results show that women tend to have a significantly higher ridge density than men and that this trend is upheld in subjects of both Caucasian and African American descent (F = 81.96, P < 0.001). Application of Bayes' theorem suggests that a given fingerprint possessing a ridge density of 11 ridges/25 mm2 or less is most likely to be of male origin. Likewise a fingerprint having a ridge density of 12 ridges/25 mm2 or greater is most likely to be of female origin, regardless of race.     

From Loss of Services to Loss of Support: The Wrongful Death Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family

The wrongful death statutes enacted in most states during the mid-nineteenth century have long represented a classic moment in the narrative of American legal history. Historians have not observed, however, that American wrongful death statutes amended the English act on which they were modeled to introduce a gender asymmetry peculiar to the United States. Led by New York, most American jurisdictions limited wrongful death actions to "the widow and next of kin" of the decedent, categories that did not include husbands of deceased wives. Thus, a wife could bring a wrongful death action for the death of her husband, but a husband could not bring a wrongful death action on his own behalf for the death of his wife.
The wrongful death statutes represent a heretofore unrecognized conjuncture of the beginnings of the modem law of torts with the nineteenth-century legal reconstruction of the family. The statutes mowed accident litigation away from an eighteenth-century model of masters suing for loss of the services of a servant, slave, wife, or child, toward the now more familiar model of suits for loss of wages and support. Moreover, the gender asymmetry of the statutes embodied and reproduced a new nineteenth-century conception of the family in which men worked as free laborers and women were confined to relatively narrow domestic roles, removed from the market and dependent for their support on the wages of their husbands. Indeed, the statutes anticipated by over half a century the American welfare state's two-track approach to support for wage-earning men and dependent women.     

Identifying the Needs of American Indian Women Who Sought Shelter: A Practitioner-Researcher Partnership

American Indian women across all ages are significantly more likely than women of other ethnic groups to be victims of domestic violence, sexual assault, and stalking. Despite their increased risk of interpersonal violence, there are few published studies or reports that explicitly examine the needs of victimized American Indian women. Therefore, both researchers and service providers know very little about the multifaceted needs of victimized American Indian women and whether current community services are meeting the needs of victimized native women. Identifying such needs is a logical next step so that victim service agencies can develop and effectively provide services tailored to victimized American Indian women. This commentary addresses these gaps by (1) identifying the needs of American Indian women in a domestic violence shelter in Arizona, and (2) highlighting the researcher-practitioner partnership that made it possible to gain access to these victims. Drawing on survey responses from 37 American Indian female clients and interviews with 10 staff members, the findings reveal that the domestic violence agency service provider is meeting many of their needs. Findings also indicate that clients have a wide variety of specific personal needs (e.g., safety, housing, transportation), needs relating to their children (e.g., safety, education, socialization), community needs (e.g., relating to their tribe), as well as legal needs (e.g., help obtaining a restraining order or divorce). These multifaceted needs are discussed and specific recommendations are provided for successful researcher-practitioner partnerships.     

Women and the dynamics of marriage,household status,and aging in victorian canada and the united states

This article compares the life course transitions and household statuses of Canadian and American women and men in late nineteenth-century Canada and the United States. Using a set of integrated census data from 1871 Canada and the United States in 1880, the article suggests that household status differences between the two nations centered on gender. Canadian and American men timed or experienced their own transitions into and out of marriage and household headship at similar ages and to a similar extent. Demographic and economic differences between Victorian Canada and the United States, however, produced distinctions in Canadian and American women's life course transitions and household status: for Canadian women, older ages at first marriage, and the prolongation of the duration of the status, spouse of the household head. For their part, American elderly women more frequently lived as single and widowed heads of households than did their Canadian counterparts.     

Women and the dynamics of marriage, household status, and aging in victorian canada and the united states

This article compares the life course transitions and household statuses of Canadian and American women and men in late nineteenth-century Canada and the United States. Using a set of integrated census data from 1871 Canada and the United States in 1880, the article suggests that household status differences between the two nations centered on gender. Canadian and American men timed or experienced their own transitions into and out of marriage and household headship at similar ages and to a similar extent. Demographic and economic differences between Victorian Canada and the United States, however, produced distinctions in Canadian and American women's life course transitions and household status: for Canadian women, older ages at first marriage, and the prolongation of the duration of the status, spouse of the household head. For their part, American elderly women more frequently lived as single and widowed heads of households than did their Canadian counterparts.     

Ethnicity and risk for symptoms of posttraumatic stress following intimate partner violence: prevalence and predictors in European American and African American women

The present study uses a feminist theoretical framework to explore risk factors for the development of posttraumatic stress symptoms following intimate partner violence, with a community sample of 120 low-income European American and African American women. Hierarchical regression analyses were used to examine demographic, violence, and mental health variables that predict posttraumatic stress symptoms. The data reveal that African American women report lower levels of posttraumatic stress symptoms than do their European American peers. This difference was observed despite the presence of more empirically identified risk factors for African American women. Regression analyses show that symptoms of depression increase risk for posttraumatic stress for both groups. However, a difference was observed such that past victimization increase risk for only European American women, whereas amount of psychological violence in the previous year increases risk for only African American women. Potential explanations for observed ethnic differences are offered.