论美国刑法中强奸罪的若干疑难问题及其启示

美国各州刑法、模范刑法典、刑法理论家所积极探讨的强奸罪疑难问题对我国刑法理论与实践富有启示:强奸罪的犯罪定义应当考虑行为主体与被害人的性别中立,将正态性交与偏离性交置于同等的刑罚等级;正确认定强制行为是把握强奸罪犯罪行为要素的关键,强制分为生理强制与心理强制,生理强制的标准是行为人暴力,被害人反抗,心理强制的标准是“地位悬殊”原则;被告人错误认为被害人同意在某些情况下能够阻却行为人的犯罪意图,但需严格把关,要坚持“真诚并且合理”原则,公正地使用推定。     

Enhancing Title IX Due Process Standards in Campus Sexual Assault Adjudication: Considering the Roles of Distributive,Procedural, and Restorative Justice

ABSTRACT

Title IX prohibits sex discrimination—including sexual assault—in higher education. The Department of Education Office for Civil Rights’ 2011 “Dear Colleague Letter” outlines recommendations for campus sexual assault adjudication allowing a variety of procedures that fail to protect accused students’ due process rights and victims’ rights under Title IX. This article reviews two diminished due process rights in campus adjudication: cross-examination and the preponderance of the evidence standard. We use an organizational justice theoretical framework to show that limitations on due process rights reduce fair outcomes for both victims and the accused. We provide recommendations for a restorative justice approach to campus adjudication that operates within this theoretical framework to increase fair outcomes in adjudication, bolster perceptions of adjudicatory system legitimacy, and reduce campus sexual assault.     

The Effects of Feminist Mobilization and Women’s Status on Universities’ Reporting of Rape

ABSTRACT

When establishing the White House Task Force to Protect Students from Sexual Assault, President Obama reminded universities of their obligation to report accurate rape statistics to the Department of Education. Research has not determined, on a national scale, what factors explain variation in (under)reporting. Using data from 413 top universities’ websites and institutional and archival data, we examine how state- and university-level factors shape universities’ rape reporting. Universities with a greater feminist presence and antiviolence activism, and those located in states where women have higher socioeconomic status and more American Association of University Women partnerships, report more rapes. We examine underreporting as an institutional rather than an individual-level phenomenon, connect campus reporting to the larger reporting literature, and provide practical policy and program implications.     

Attempted Serial Neonaticides: Case Report and a Brief Review of the Literature

Neonaticide is an infant murder occurring on the day of birth. The case reports found in the literature are often focused on the mother as the agent in the context of pregnancy denial, dissociative symptoms, or psychosis. However, this report describes a rare case of attempted serial neonaticides, in which the acts were committed by a nurse at the nursery of a referral hospital in Brazil. The authors describe a forensic psychiatric evaluation for criminal responsibility and correlate the information from this particular case with relevant forensic themes, namely neonaticide, Munchausen by proxy syndrome, and serial healthcare killers.     

The criminal career of men convicted of rape: evidence from a Norwegian national cohort

The extent to which sexual offenders are a group separate from other types of offenders has been debated for many years and investigated from different perspectives. The present study investigated similarities and differences regarding socio-economic background, criminal history and recidivism involving new crimes between rape offenders and three other groups: other sexual offenders, non-sexual violent offenders and other offenders. Data came from Norwegian population registers containing information on all crimes investigated from 1992 to 2012. The sample consisted of all persons convicted in 2002 and 2003 (N = 36,951). Background characteristics and estimated recidivism risk was described using hazard models. Results indicated that men convicted of rape (n = 142) had lower levels of education and that a higher percentage of them were on social benefits compared to the other crime groups. A large majority (79%) of rape-convicted men had previous convictions. Rape offenders were considerably more criminally active and diverse than the other crime groups. Prior criminal record, irrespective of type, increased the risk of recidivism in general. Controlling for other background characteristics did not alter this outcome. Treatment of convicted rapists needs to take into consideration that this offender group has much in common with violent offenders in general.     

Enhancement of microcrystalline identification of gamma-hydroxybutyrate

An enhancement of the microcrystalline test for the detection of gamma-hydroxybutyrate (GHB) is described. The original test used a silver/copper reagent which consisted of 0.1 g of silver nitrate and 0.1 g of copper nitrate in 10 mL water. The enhanced test utilizes lanthanum nitrate in place of copper nitrate. A detection limit of 0.5 mg/mL was achieved and the visual discrimination was improved because of larger sized crystals. Transient crystals were observed between 0.1 and 0.4 mg/mL. Silver nitrate alone appeared to be suitable for GHB detection but was not specific as other hydroxyl acids, such as glycolic acid, produced a similar crystal pattern. Tests conducted on chemical precursors of GHB and substances with similar biological activity highlight the specificity of the enhanced test. The reagent is therefore selective and sensitive for GHB in aqueous solutions. However, in beverage testing, crystal formation appeared to be inhibited for some drinks. Citric acid was identified as a possible interference depending on its concentration relative to GHB.     

Sexual Violence Against Marginalized Victims: Choice of Victim or Victim of Choice?

Research shows that sex trade workers and homeless populations are at a high risk of severe violence and homicide. Based on a sample of 229 violent sex offenders, we investigate the differences between sexual crimes committed against marginalized (n = 73) and nonmarginalized victims (n = 156). Findings from logistic regression analyses show that offenders who target marginalized victims are more likely to degrade their victim and use a variety of torture methods. However, offenders who target nonmarginalized victims are more likely to use a weapon, and kill the victim by strangulation. Implications for future research are discussed.     

Chilean and Transnational Performances of Disobedience: LasTesis and the Phenomenon of Un violador en tu camino

This article analyses the performance Un violador en tu camino created by Chilean feminist theatre collective LasTesis, shared by millions and re-staged across the globe. It explores the relationship between the original piece and theorist Rita Segato's insights on rape culture, and how it counters aspects of this culture. It examines how the transnational spread of Un violador counters tendencies of MeToo, and examines four cases of the performance's re-staging in Latin America and beyond, showing how they make manifest the pervasiveness of rape culture as well as how groups have adapted them to speak to local issues.