Beyond proportionate punishment: Difficult cases and the 1991 Criminal Justice Act

Within six months of implementation, the Criminal Justice Act 1991, which had been hailed as the most important piece of criminal justice legislation in England and Wales for many years, was already being undermined in practice, and a new Act, which amends or even reverses some of its more progressive principles, was brought before Parliament. This paper looks at some problems of proportionality in practice — through discussion of penological principles, and through consideration of the kinds of cases which are most difficult for a desert approach. Alternative ideas are examined to see whether they could offer any better framework for penal policy and practice. A mixed theory is advocated, with parsimony as its most important principle.I am grateful to Nicola Lacey, Mike Levi, Mike Maguire and Andrew Von Hirsch for comments on the first draft of this paper.     

The correlates of spouses' incongruent reports of marital aggression

Husbands' and wives' reports (n=97 couples) of engaging in or experiencing marital aggression were compared to determine congruence. Congruence was defined as spousal agreement on whether either spouse had been nonviolent, mildly violent, or severely maritally violent within the past year. Whereas approximately equal numbers of clinic couples were incongruent for husband and for wife violence (32% vs. 31%), only incongruence for husband violence (H W) was found to correlate with reports of affective and relationship functioning. Incongruent H W wives were more likely to be depressed and angry. H W incongruent wives were also more negative about the inter-spousal communication and rated the relationship as more unsatisfactory for them than did congruent wives. Incongruent H W husbands also perceived the relationship more negatively, but their levels of depression and anger did not differ from congruent H W husbands. These findings were not replicated for spouses who were incongruent for wife violence. Our results support the conclusion that spousal disagreement about H W violence has a more negative impact than does disagreement about wives' level of aggression.     

The hate that dare not speak its name: Pornography qua semi-political speech

In this essay we shall examine the contemporary jurisprudential thinking and legal precedents surrounding the issue of the sanctionability of pornography. We shall catalogue them by their logical presumptions, such as whether they view pornography as speech or act, whether they view pornography as obscenity, political hate-speech or anomalous other, whether they would scrutinize legislation governing pornography by a balancing of the harm of repression against the harm of permission, and who exactly they view as the victims.We shall take a special interest in the most recent, but unsuccessful, attempt by a subgroup of feminists to proscribe pornography by treating it as neither political speech nor sexual speech but speech which causes harm which is both political and sexual. They would like it to be considered as a special kind of odious propaganda undeserving of protection because it promulgates a mental state conducive to criminal activity, and hence is criminal in and of itself. However, the repression of propaganda, even odious propaganda, is not so easily accomplished in this country.Most anti-censors have emphasized the uncertainty of the causal connection between pornography and sexual violence. We shall contend that this is not the essential issue, and that, even if we agree with the allegations of pornography's prurient non-intellectual appeal and its tendency to excite criminal hostility, the current understanding of the Bill of Rights allows sanctioning only under the stringent requirement of the showing of a clear and present danger of specific and immediate acts.We raise the question of whether there should be a new standard for speech which is simultaneously political and sexual, and/or for speech whose harmful message is presented subliminally, on the grounds that such speech may not be adequately opposed by counter speech in the marketplace of ideas.