南通智障少女子宫切除案的法律思考——论智障者知情同意权的行使

南通智障少女子宫切除案件对社会的触动,暴露出了我国智障未成年人知情同意权行使规则的缺失。文章分析了案件的本质问题,通过对域外立法、判例之考察,提出粗浅的立法建议。     

南通智障少女子宫切除案的法律思考——论智障者知情同意权的行使

南通智障少女子宫切除案件对社会的触动，暴露出了我国智障未成年人知情同意权行使规则的缺失。文章分析了案件的本质问题，通过对域外立法、判例之考察，提出粗浅的立法建议。     

The mentally retarded offender in the criminal justice system

The problem of the mentally retarded offender begins at the first encounter with the criminal justice system and continues through the correctional system. A recent survey compared attitudus of police and mental health professional. Police (78%) felt that disturbed person (including mentally retarded offenders) should be handcuffed when being transported. In contrast, mental health professionals (84%) felt no individual should be handcuffed. The mentally retarded offenders, once incarcerated, are a group that is confronted with problems beyond those usually associated with prison life. The authors examine the complex issued stemming from the special conditions of the MRO and suggest recommendations for developing rational attitudes and policies within the criminal justice system.     

International norms on execution of the insane and the mentally retarded

Conclusion Victor Hugo considered the death penalty to be the hallmark of barbarity. 104 International human rights law clearly contemplates abolition of the death penalty. To some extent, it has succeeded in promoting universal and imperative norms, as in the case of the prohibitions on torture and slavery. 105 With respect to the death penalty, results have been more gradual and the effort has met with more opposition. Although international norms now exist prohibiting the death penalty, 106 they are not yet widely ratified. This is why international organizations dedicated to the promotion of human rights have insisted upon strict limitation of the death penalty, including its total exclusion for certain categories, such as juveniles, pregnant women, the elderly, and the insane.No treaty provision exists to exclude the insane from the death penalty. The conclusion that this prohibition represents a customary norm is an important one, with consequences not only in international law but also in domestic law since many states consider customary international law to be a part of their domestic law. Wherever a court concludes that in the absence of any domestic statutory provision to the contrary, customary international human rights law prohibits execution of an insane prisoner, a small step will be taken away from the barbarism lamented by Hugo.B.A., University of Toronto 1972; M.A., University of Toronto 1973; LL.B., University of Montreal 1983; LL.M., University of Montreal 1990; LL.D., University of Montreal 1993.     

Characteristics of mentally retarded criminal offenders in Northern Taiwan

The characteristics and criminal behavior in mentally retarded individuals remain largely unstudied. This retrospective study sought to establish a set of reference of criminal behavior characteristics in an ethnic Chinese mentally retarded group. Data were collected from forensic psychiatric evaluation of 32 mentally retarded offenders. Of the 32 offenders, only four (12.5%) cases were female. Mean age at the time of the offenses was 31. By IQ testing, 23 (71.9%) of the group fell into the mild mental retardation range, seven (21.9%) into the moderate mental retardation range, and two (6.2%) into the severe mental retardation range. Nineteen (59.3%) of the group also suffered from additional mental disorder. Eight (25%) had definite neurological deficit. Fourteen (43.8%) were repeat offenders. A total of 24 (75%) of the offenders had committed crimes against property, with 13 having committed petty theft. Furthermore, the pattern of offending shows differences from that of the general population or other mental disorders. The property offenses, especially petty theft and arson, were frequently seen. There was no noteworthy above average frequency of sexual offenses.     

Constitutional protection of confessions made by mentally retarded defendants

Criminal confessions made in response to custodial questioning are excluded from evidence unless a defendant voluntarily, knowingly and intelligently waived his Miranda rights. In Connelly, the Supreme Court erred by holding that, absent explicit police coercion, a mentally ill individual's waiver is valid. The Court failed to consider the defendant's subjective impairments that might invalidate his waiver. By contrast, the Patterson Court suggested that a defendant's right to counsel may attach at an early stage in a criminal proceeding if the defendant has a significant need for counsel. This Note addresses the special needs of a mentally retarded person in the criminal justice system. The Note argues that mentally retarded suspects require careful explanation of Miranda rights in order to understand them. The intellectual and adaptive deficiencies which characterize mental retardation also necessitate an inquiry into a valid waiver that accounts for these disabilities. Furthermore, the special needs of the mentally retarded mandate that the right to counsel attach as early as the precustodial stage of an investigation. Early access to counsel most effectively assures that a mentally retarded person's waiver of constitutional rights is voluntary, knowing and intelligent.     

Attribution styles and attitudes toward capital punishment for juveniles,the mentally incompetent,and the mentally retarded

This study used attribution theory to explain respondents' levels of support for the death penalty for juveniles, the mentally ill, and the mentally retarded via the administration of a quasi-experimental factorial survey to 697 subjects who were called for jury service. The results indicate that the respondents with dispositional attribution styles were significantly more likely to recommend a death sentence than were those with situational attirbution styles. Moreover, the study found that the effects of a large number of the “known correlates” of support for the death penalty were fully or substantially mediated by attribution theory measures. The substantive, theoretical, methodological, and legal/policy implications of the study are discussed.