A taxonomy of duties to report child sexual abuse: Legal developments offer new ways to facilitate disclosure
طبقه بندی وظایف برای گزارش سوء استفاده جنسی از کودکان: ارائه تحولات حقوقی روش های جدیدی برای تسهیل افشا-2019
Background: Child sexual abuse is undisclosed for many reasons that are resistant to change. Citizens can play an important role in disclosing cases of child sexual abuse to authorities. Professionals who deal with children also play a crucial role. Office-holders in organisations have a clear responsibility to prevent cover-ups of sexual abuse. Recently, some countries have created important new legal duties for adults to disclose child sexual abuse. Objectives: This article creates a contemporary taxonomy of duties to disclose cases of child sexual abuse, and explains their nature and justification. Participants and setting: Citizens, professionals dealing with children in the course of their work, and managers of child and youth-serving organisations. Methods: Legal analysis created a taxonomy of reporting duties. Analysis of these duties from perspectives of criminal jurisprudence, public health law, children’s rights and ethics considered their justification. Results: Seven legal duties now exist, in criminal law, civil law and child protection law. Some apply to all citizens; others to managers in organisations; others to professionals dealing with children in the course of their work. All the duties are directed to early detection of cases; some are directed towards prevention; and some are focused on avoidance of institutional corruption. Conclusions: These developments represent historic progress in overcoming normally intractable barriers to disclosure of cases of child sexual abuse. New legal duties are consistent with principles from criminal jurisprudence, public health law, children’s rights and ethics. Where adopted, societies should ensure the creation and maintenance of ecological conditions in which these duties can be observed
Keywords: Child sexual abuse | Non-disclosure | Disclosure | Legal duties | New developments | Reporting | Criminal law | Civil law | Mandatory reporting | Organizations | Policy
Therapeutic jurisprudences future in health law: Bringing the patient back into the picture
آینده فقه درمانی در قانون سلامت: آوردن بیمار به تصویر-2019
More than 25 years ago, Professors David Wexler and Bruce Winick envisioned broad application of therapeutic jurisprudence (TJ), an interdisciplinary theory of lawsuggesting that legislatures, regulators, and judges consider the extent towhich their decisions impact the psychological well-being of those uponwhomthe lawacts. TJmost obviously plays a significant role in mental health and criminal law, where it originated, but Wexler andWinick long ago opined that TJ could be useful in a wide variety of other disciplines as well. Indeed, TJ has expanded exponentially in application over the years. Yet, althoughWexler and Winick originally suggested that health law was an “obvious” field in which it could expand, application of TJ in that discipline has been less robust than one might have expected. This article will examine the extent to which TJ has been applied in health law other than mental health law, categorize the areas of health law in which it has been applied, and suggest future paths for expansive application in this most obvious of areas.
Keywords: Therapeutic jurisprudence | Health law | Patient-centered | Outcomes
Blaming rape on sleep: A psychoanalytic intervention
سرزنش تجاوز در خواب: یک مداخله روانکاوی-2019
The governance of sleep sex (or sexsomnia) in the criminal law is a nightmare. Press reports of sleeping, often drunk, men acquitted as automatons of raping adults and children suggest cases are rising. The use of automatism, rather than insanity, in these cases is strong evidence of the immemorial struggle faced by legal psychiatry in appropriately construing unconscious defendants. This paper responds by drawing on well-established psychoanalytic conceptions of unconsciousness to present sexsomnia as dispositional to the defendant. Taking the Freudian concepts of eros and death instinct, it asserts that sexsomniacs are acting on repressed sadistic desires. Accordingly, those on notice of their sexsomnia, who fail to mitigate the risk of further attacks, should be guilty of rape. Reliance on (a reformed) insanity defence – being a denial of responsibility at the time of the offence – undermines the scope of the criminal law to self-responsibilise sexsomniacs against perpetrating unwanted sex.
Keywords: Sexsomnia | Rape | Insanity | Automatism | Freud | Repression
Forensic psychiatric evaluations of defendants: Italy and the Netherlands compared
ارزیابی روانپزشکی پزشکی قانونی از متهمان: ایتالیا و هلند در مقایسه-2019
Background: Forensic psychiatric practices and provisions vary considerably across jurisdictions. The diversity provides the possibility to compare forensic psychiatric practices, as we will do in this paper regarding Italy and the Netherlands. Aim: We aim to perform a theoretical analysis of legislations dealing with the forensic psychiatric evaluation of defendants, including legal insanity and the management of mentally ill offenders deemed insane. This research is carried out not only to identify similarities and differences regarding the assessment of mentally ill offenders in Italy and the Netherlands, but, in addition, to identify strengths and weaknesses of the legislation and procedures used for the evaluation of the mentally ill offenders in the two countries. Results: Italy and the Netherlands share some basic characteristics of their criminal law systems. Yet, forensic psychiatric practices differ significantly, even if we consider only evaluations of defendants. A strong point of Italy concerns its test for legal insanity which defines the legal norm and enables a straightforward communication between the experts and the judges on this crucial matter. A strong point of the Netherlands concerns more standardized practices including guidelines and the use of risk assessment tools, which enable better comparisons and scientific research in this area. Conclusions: We argue that there appears to be room for improvement on both sides with regards to the evaluation of mentally ill offenders. More generally, a transnational approach to these issues, as applied in this paper, could help to advance forensic psychiatric services in different legal systems.
Keywords: Forensic psychiatry | Legal insanity | Italy | Netherlands | Risk assessment
Legal mobilization in medicine: Nurses, rape kits, and the emergence of forensic nursing in the United States since the 1970s
بسیج حقوقی در پزشکی: پرستاران ، کیت های تجاوز جنسی و ظهور پرستاری پزشکی قانونی در ایالات متحده از دهه 1970-2019
Routine administration of the sexual assault medical forensic exam (commonly known as the “rape kit”) is one of the most significant healthcare reforms advanced by the U.S. anti-rape movement since the 1970s. To promote reform, nurses acted as practitioner-activists in emergency medicine and created the new specialty of forensic nursing to administer the medical forensic exam independent of physicians. Their efforts suggest a new way of conceptualizing the interface of law and medicine: the proactive invocation of criminal law in clinical medicine for the purpose of institutional reform in healthcare organizations, or what I term legal mobilization in medicine. Using the framework of legal mobilization in medicine, I ask: (1) how did nurses mobilize criminal law and rights to health in emergency medicine to facilitate reform? and (2) what were the effects on clinical practice and knowledge production? To chart this history, I draw on a review of published writings by early forensic nurses, interviews with leaders in the field, and ethnographic observation at the 20th anniversary International Association of Forensic Nurses conference in 2012, commemorating the founders and origins of this new specialty. Bringing together scholarship on law and social movements in socio-legal studies and scholarship on health and social movements in science, technology, and medicine studies, I argue that nurses forged a porous boundary between the overlapping institutional spheres of medicine and law in order to align the objectives of medical care and criminal investigation and, thereby, seek rights to healthcare and rights to justice for patientvictims through the enactment of new medical routines. I demonstrate the historical emergence of a novel, hybrid form of professional jurisdiction and medical practice, and I explore its benefits as well as its unintended consequences. I conclude by discussing the ethical implications of this case for the use of medical evidence to corroborate rape.
Keywords: United States | Forensic nursing | Rape kit | Sexual assault medical forensic exam | Legal mobilization in medicine
Ethical loneliness and the development of a victim-focused approach to rape cases in South Africa
تنهایی اخلاقی و توسعه رویکرد متمرکز بر قربانیان در مورد پرونده های تجاوز جنسی در آفریقای جنوبی-2019
In this article, I focus on the rape trial of the former South African president, Jacob Gedleyihlekisa Zuma. I have chosen this specific case as it was extensively documented, both in the media and academically, with the main focus being on how the court had relied on gender-stereotyping in coming to its conclusion that the accused was not guilty as well as the degrading onslaught the victim experienced by communities around her. I look at the courts reliance on evidence of previous sexual history in finding that the complainant (Khwezi) was, in fact, an unreliable witness. I endeavour to show how the reliance of the court on rape stereotypes can be humiliating, degrading and one of the causes of secondary victimisation. I argue that Khwezis harmful experience of the criminal justice system is common to many victims in rape cases. I then proceed to argue that the experience of Khwezi (and many other rape survivors) can be described as what Stauffer calls, ‘ethical loneliness’. As one outlet for this loneliness, I suggest the development of the South African criminal law, which can be applied to criminal law universally, to shift the focus of rape trials from being accused-focused to victim-focused. Through this process, I argue, that law can begin to influence change in the reluctance of society to hear the story of rape survivors and help to create a safe space in communities for survivors to be heard.
Keywords: Rape | Secondary-victimisation | Criminal law | Criminal trials | Victim-focused | Silencing | Evidence
Crime control in the sphere of information technologies in the Republic of Turkey
کنترل جرم در حوزه فناوری های اطلاعات در جمهوری ترکیه-2019
Cybercrime is considered an issue of both local and global concern. Therefore, this study focuses on the local experience in cybercrime control of different countries, including the Republic of Turkey. The article discusses issues in cybersecurity policy and analyzes the legislative framework of the Republic of Turkey on cybercrime issues. The findings underlie the continuing education policy for cybersecurity employees. The study concludes that Turkey handles the current cybercrime situation with efficiency.
Keywords: Cybercrime | Unauthorized access | Criminal law | Ratification | Training of police officers
Corporate crime, the lawmakers options for corporate criminal laws and Luhmanns concept of “useful illegality”
جرایم شرکتی، اختیارات قانونگذاران برای قوانین کیفری شرکت ها و مفهوم Luhmanns از "غیرقانونی مفید"-2019
The article contributes to the current discussion on whether and how to introduce corporate criminal responsibility to Germany. The article focuses on the interrelation between possible designs of a future corporate criminal law and the explanatory model of the "early" Niklas Luhmann (1964) on the existence and functionality of "useful illegality" (“brauchbare Illegalität”) in organisations. The author presents the alternatives for penal legislature, discusses the original concept of Luhmann and debates his recent "rediscovery" and popularisation in the context of publicly debated corporate misconduct. The key question is whether, for reasons of efficiency, the law should allow companies leeway for useful deviant behaviour. As a rule, severe violations of state law are neither desirable nor useful. However, the “uselessness” depends on the “accounting period”. Rather, the author takes the view that law itself endeavours as far as possible to systematically implement socially beneficial behaviour in the binary code "right-wrong".
Keywords: Compliance | Constructive deviance | Corporate criminal law | Luhmann | Strict liability | Useful illegality
Beyond public punitiveness: The role of emotions in criminal law policy
فراتر از مجازات عمومی: نقش عواطف در سیاست کیفری-2019
The article examines the existing and potential role of emotions in the criminal law-making and criminal policy. It aims to inspect which emotions, if any, are more acceptable for influencing criminal policy and to what extent emotions could legitimately intervene in criminalisation processes. It first analyses the ways in which emotion has already penetrated into the criminal law, criminal justice and criminalisation. Next, it inspects the various characteristics of emotions, specifically those that are central in distinguishing between good and bad candidates for influencing criminal law policy, demonstrating that certain negative, highly intense, irrational and unstable or short-lived emotions can make bad law, as do atypical cases. The article then sketches a theoretical framework, composed of the requirements that should be fulfilled before any emotion could justifiably influence criminal law-making and of the further limits to such an enterprise. It concludes with recommendations and some thoughts on further research.
Keywords: Emotion | Criminalisation | Criminal law policy | Public sentiment | Legitimacy | Justice
Alcohol-related driving in China: Countermeasure implications of research conducted in two cities
Alcohol-related driving in China: Countermeasure implications of research conducted in two cities-2016
Objective: Drunk driving (blood alcohol concentration (BAC) 80 mg/100 ml) was upgraded to become a criminal offence under China’s Criminal Law in May 2011. While this had a major road safety benefit, there was still a high level of alcohol related crashes and fatalities. This paper develops recommendations based on a programme of research undertaken in 2012 that examined the perceptions of general motor vehicle drivers, convicted drunk driving offenders and traffic police about drinking and driving and law enforcement in the cities of Guangzhou and Yinchuan. Alcohol misuse problems were also explored using the Alcohol Use Disorders Identification Test (AUDIT). This paper integrates the findings to examine existing problems in alcohol management, law enforcement, education and rehabilitation and provides recommendations for addressing alcohol-related driving in China.
Methods: A multi-study cross-sectional research programme was conducted in two Chinese cities involving general drivers, drunk driving offenders and traffic police. In total, 16 traffic police officers were interviewed and 105 traffic police officers were surveyed. In addition, 207 drunk driving offenders in detention facilities and 802 general motor vehicle drivers were surveyed.
Results: Traffic police resources including human resources and facilities such as breathalysers were reported as insufficient in both cities. There were problems reported in the process of law enforcement, and shortcomings in police knowledge of factors involved in drink/drunk driving and in the practice of conducting breath alcohol testing (BAT). Knowledge about legal BAC levels and how to keep under the legal limit was very low among general motor vehicle drivers and drunk driving offenders. Proportions with alcohol misuse problems in the two driver groups were high, especially among offenders.
Conclusions: Recommendations to manage alcohol-related driving are proposed for the three groups of traffic police, general motor vehicle drivers and drunk driving offenders. In particular, traffic police resources need to be improved and further education provided to police on the general deterrence potential of BAT. There should be enhanced community education and publicity to improve knowledge of drink driving regulations and how to avoid breaking the law. Alcohol misuse problems should be addressed, particularly for drunk driving offenders.
Keywords: China | Drunk driving | Drink driving | Traffic law enforcement | Education | AUDIT