Toward a Feminist State: What Does ‘Effective’ Prosecution of Domestic Violence Mean?

This article examines domestic violence criminal prosecutions and addresses what 'effective' prosecutorial action means in such cases. The argument elaborates on a point recently articulated by the UN Special Rapporteur on Violence against Women, which links effective prosecution of violence against women to the creation of a less patriarchal society. The article concludes that 'effective' prosecution of domestic violence means prosecution which constitutes the State as less patriarchal ceteris paribus .     

Screening for intimate partner violence in orthopedic patients: a comparison of three screening tools

Accurately identifying victims of intimate partner violence (IPV) can be a challenge for clinicians and clinical researchers. Multiple instruments have been developed and validated to identify IPV in patients presenting to health care practitioners, including the Woman Abuse Screening Tool (WAST) and the Partner Violence Screen (PVS). The purpose of the current study is to determine if female patients attending an outpatient orthopaedic fracture clinic who screen positive for IPV using three direct questions (direct questioning) also screen positive on the WAST and PVS. We conducted a prevalence study at two Level I trauma centres to determine the prevalence of IPV in female patients presenting to orthopaedic fracture clinics for treatment of injuries. We used three methods to determine the prevalence of IPV; 1) direct questioning, 2) WAST, and 3) PVS. We compared the prevalence rates across the three screening tools. Ninety-four women screened positive for IPV using any method. The prevalence of IPV was 30.5% when a direct questioning approach was utilized, 12.4% using the WAST, and 9.2% using the PVS. The WAST identified 37.2% (35/94) of the IPV victims detected and the PVS identified 27.7% (53/94) of the IPV victims detected, whereas direct questioning identified 89.4% of the IPV victims. Identification of IPV may be under-estimated by the WAST and PVS screening tools. Our findings suggest direct questioning may increase the frequency of disclosure of IPV among women attending outpatient orthopaedic clinics.     

Proof of causation in informed consent cases: establishing what the plaintiff would have done

A degree of judicial caution in accepting the assertion of a plaintiff as to what he or she would have done, if fully informed of risks, is clearly evident upon a review of decisions applying the common law. Civil liability legislation in some jurisdictions now precludes assertion evidence by a plaintiff. Although this legislative change was seen as creating a significant challenge for plaintiffs seeking to discharge the onus of proof of establishing causation in such cases, recent decisions suggest a more limited practical effect. While a plaintiff's ex post facto assertions as to what he or she would have done if fully informed of risks may now be inadmissible, objective and subjective evidence as to the surrounding facts and circumstances, in particular the plaintiff's prior attitudes and conduct, and the assertion evidence of others remains admissible. Given the court's reliance on both objective and subjective evidence, statistical evidence may be of increasing importance.     

Editorial

Criminal Law and Philosophy -     

Processes of Criminalization in Domestic and International Law: Considering Sexual Violence

This article explores some conceptual issues regarding criminalization at the domestic and international levels. It attempts to explain what it means to say that a particular kind of conduct has been criminalized, and considers how the processes of criminalization differ in domestic and international law. In unpacking these issues, the article takes the examples of rape and sex trafficking in domestic and international legal systems, explores whether these offenses are criminalized more broadly in international criminal law as compared to domestic criminal law, and briefly outlines possible explanations for this disparity.     

Victimless Conduct and the Volenti Maxim: How Consent Works

This article examines the normative force of consent, explaining how consent works its “moral magic” in transforming the moral quality of conduct that would otherwise constitute a wrong against the consenting person. Dempsey offers an original account of the normative force of consent, according to which consent (when valid) creates an exclusionary permission. When this permission is taken up, the moral quality of the consented-to conduct is transformed, such that it no longer constitutes a wrong against the consenting person. Building on this account of how consent works, Dempsey identifies two sets of cases in which consent fails to transform the moral quality of one’s conduct: cases in which one is consent-insensitive to the rational force of another’s consent, and cases in which one acts for sadistic reasons.     

How to Argue About Prostitution

This article provides a comparative analysis of various methodologies employed in building arguments regarding prostitution law and policy, and reflects on the proper aims of legal philosophy more generally. Taking Peter de Marneffe’s Liberalism and Prostitution (OUP 2010) as a launching point for these reflections, the article offers a mostly favourable review of the book as a whole, and defends the philosophical method as one (amongst other) valuable ways to argue about prostitution.