Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.293
W. Bottke
The range of sexual offenses against the person is wide. There are many ways to violate someone’s right to sexual self-determination. The provisions in the German Penal Code that sanction sexual assault and any other offense of a sexual nature committed upon another person cover many areas such as rape, assault with intent to rape, sexual harassment, acts of indecency, indecent exposure, sexual abuse of minors, incest, buggery, pornography, procuring of minors, prostitution, and the trafficking in persons for the purpose of sexual exploitation. In Germany, sexual offenses are proscribed under chapter 13, sections 174-184 of the Penal Code (StGB). chapter 13 is subtitled “offenses against the right of sexual self-determination.” To cover fully the range of sexual abuse, misconduct, and indecent assault from the perspective of victim’s protection and compensation, the provisions in the Penal Code can be classified as follows:
{"title":"Sexuality and Crime: The Victims of Sexual Offenses","authors":"W. Bottke","doi":"10.1525/NCLR.1999.3.1.293","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.293","url":null,"abstract":"The range of sexual offenses against the person is wide. There are many ways to violate someone’s right to sexual self-determination. The provisions in the German Penal Code that sanction sexual assault and any other offense of a sexual nature committed upon another person cover many areas such as rape, assault with intent to rape, sexual harassment, acts of indecency, indecent exposure, sexual abuse of minors, incest, buggery, pornography, procuring of minors, prostitution, and the trafficking in persons for the purpose of sexual exploitation. In Germany, sexual offenses are proscribed under chapter 13, sections 174-184 of the Penal Code (StGB). chapter 13 is subtitled “offenses against the right of sexual self-determination.” To cover fully the range of sexual abuse, misconduct, and indecent assault from the perspective of victim’s protection and compensation, the provisions in the Penal Code can be classified as follows:","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"191 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114394320","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.211
D. Rössner
For the past few years constructive social alternatives have been considered as a basically alternative concept in the field of ambulant sanctions. Firstly the victim-offender-reconciliation is to be mentioned. The ethical explanation lies in the principle of self-responsible actions in criminal law, and the principle of the priority of taking responsibility over criminal constraint. Besides, the victim's interests are taken far more into consideration and "conflict manage-ment" gains importance. On the basis of these reflections and with regard to the practical experience of pilot projects, a work group of German, Swiss and Austrian criminal law academics to which the author belongs presented the so-called alternative draft regarding compensation (AE-WGM) in 1992 which introduces compensation into the system of legal consequences as a "third way". Meanwhile the legislator has taken up the idea of the AE-WGM and has put it into practice by creating section 46 a (German Penal Code). It contains the provision that the judge may decide according to his discretion to refrain from punishment in cases where the penalty of up to one year is incurred and VOR has taken place. The public prosecutor may withdraw the charge on the same conditions. The victim-offender-reconciliation has thereby become an integral part of the legal system of sanctions and it seems necessary to incorporate conflict resolving into the state control of crime. A newly organized German Research Group on Restorative Justice (GRJ) investigates all data in this field to get knowledge about the quantity, organization and the processes in case work. First results can be reported. Victim-offender-reconciliation is mainly carried out by independent bodies of the youth welfare service and partly by court assistance. Actually there are nearly 400 institutions working in Germany. The acceptance rate of more than 80% of the victims and offenders is very high. The majority of offences dealt with are bodily injury, theft and criminal damage and, to some extent, robbery. These projects are mostly carried out by social workers who settle conflicts through personal contact between victim and offender. On the whole mediation works successfully in peacemaking after an criminal offense.
{"title":"Mediation as a Basic Element of Crime Control: Theoretical and Empirical Comments","authors":"D. Rössner","doi":"10.1525/NCLR.1999.3.1.211","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.211","url":null,"abstract":"For the past few years constructive social alternatives have been considered as a basically alternative concept in the field of ambulant sanctions. Firstly the victim-offender-reconciliation is to be mentioned. The ethical explanation lies in the principle of self-responsible actions in criminal law, and the principle of the priority of taking responsibility over criminal constraint. Besides, the victim's interests are taken far more into consideration and \"conflict manage-ment\" gains importance. On the basis of these reflections and with regard to the practical experience of pilot projects, a work group of German, Swiss and Austrian criminal law academics to which the author belongs presented the so-called alternative draft regarding compensation (AE-WGM) in 1992 which introduces compensation into the system of legal consequences as a \"third way\". Meanwhile the legislator has taken up the idea of the AE-WGM and has put it into practice by creating section 46 a (German Penal Code). It contains the provision that the judge may decide according to his discretion to refrain from punishment in cases where the penalty of up to one year is incurred and VOR has taken place. The public prosecutor may withdraw the charge on the same conditions. The victim-offender-reconciliation has thereby become an integral part of the legal system of sanctions and it seems necessary to incorporate conflict resolving into the state control of crime. A newly organized German Research Group on Restorative Justice (GRJ) investigates all data in this field to get knowledge about the quantity, organization and the processes in case work. First results can be reported. Victim-offender-reconciliation is mainly carried out by independent bodies of the youth welfare service and partly by court assistance. Actually there are nearly 400 institutions working in Germany. The acceptance rate of more than 80% of the victims and offenders is very high. The majority of offences dealt with are bodily injury, theft and criminal damage and, to some extent, robbery. These projects are mostly carried out by social workers who settle conflicts through personal contact between victim and offender. On the whole mediation works successfully in peacemaking after an criminal offense.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"74 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132129703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this paper, Markus Dubber provides an overview of the victim's role in American penal law, from the general and special part of substantive criminal law to the imposition of penal norms in the criminal process and, eventually, to the actual enforcement of norms upon suspects and convicts.
Markus Dubber在本文中概述了受害者在美国刑法中的角色，从实体刑法的一般和特殊部分，到刑事程序中刑事规范的实施，最终到规范对嫌疑人和罪犯的实际执行。
{"title":"The Victim in American Penal Law: A Systematic Overview","authors":"M. Dubber","doi":"10.1525/NCLR.1999.3.1.3","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.3","url":null,"abstract":"In this paper, Markus Dubber provides an overview of the victim's role in American penal law, from the general and special part of substantive criminal law to the imposition of penal norms in the criminal process and, eventually, to the actual enforcement of norms upon suspects and convicts.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"22 5","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132546550","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.261
Jennifer Brown
The somewhat provocative title of this essay refers to the possibility that under the Crime Victims Fund administered by United States Department of Justice Office for Victims of Crime, victims of federal crimes might go without full compensation for the harm they've suffered, while assets seized from their offenders are channeled to a different group of people altogether: victims of state crimes. Since 1985, over 2 billion dollars in fines, asset forfeitures, and other special assessments--generated mostly by white collar, corporate crime--have been deposited into the Crime Victims Fund. This money in turn supports federal courts as well as programs to compensate and assist victims of state law crimes, principally rape, domestic abuse, child abuse, and child sexual abuse. While the recipients of these benefits--many in under-served rural areas and inner-city neighborhoods--are clearly deserving of such assistance, this article raises the possibility that some federal crime victims are getting lost in the shuffle. The article explains the circumstances which might give rise to this redistribution from federal to state crime victims. It also proposes modest changes in the language and implementation of the restitution statute to protect federal victims from such losses.
{"title":"Robbing the Rich to Feed the Poor","authors":"Jennifer Brown","doi":"10.1525/NCLR.1999.3.1.261","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.261","url":null,"abstract":"The somewhat provocative title of this essay refers to the possibility that under the Crime Victims Fund administered by United States Department of Justice Office for Victims of Crime, victims of federal crimes might go without full compensation for the harm they've suffered, while assets seized from their offenders are channeled to a different group of people altogether: victims of state crimes. Since 1985, over 2 billion dollars in fines, asset forfeitures, and other special assessments--generated mostly by white collar, corporate crime--have been deposited into the Crime Victims Fund. This money in turn supports federal courts as well as programs to compensate and assist victims of state law crimes, principally rape, domestic abuse, child abuse, and child sexual abuse. While the recipients of these benefits--many in under-served rural areas and inner-city neighborhoods--are clearly deserving of such assistance, this article raises the possibility that some federal crime victims are getting lost in the shuffle. The article explains the circumstances which might give rise to this redistribution from federal to state crime victims. It also proposes modest changes in the language and implementation of the restitution statute to protect federal victims from such losses.","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"84 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131216998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.33
B. Schünemann
The social reality of the criminal justice system occurs on three levels. The first level is the system’s attempt to prevent socially harmful actions by prohibiting them under the threat of punishment. The deterrent effect of the sanction of threat as such seems to derive from two different sources. First, the threatened sanction increases the costs to the actor. An individual who calculates rationally and egoistically will forego an action when the costs to him are higher than the expected benefits. This mechanism is at the core of the law and economics debate. Second, the threat of punishment is also a means of communication to express that a certain action is morally reprehensible. An individual with normal socialization and internalization of social norms does not want to appear to be a despicable person, either to society or (above all) to himself. He will instinctively forego actions that are generally considered detestable without rationally reflecting on the costs and benefits of his choice. As Professor Kahan has shown, in order to communicate moral reprehensibility, the threatened sanctions must express some form of contempt. Or, in other words, the
{"title":"The Role of the Victim Within the Criminal Justice System: A Three-Tiered Concept","authors":"B. Schünemann","doi":"10.1525/NCLR.1999.3.1.33","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.33","url":null,"abstract":"The social reality of the criminal justice system occurs on three levels. The first level is the system’s attempt to prevent socially harmful actions by prohibiting them under the threat of punishment. The deterrent effect of the sanction of threat as such seems to derive from two different sources. First, the threatened sanction increases the costs to the actor. An individual who calculates rationally and egoistically will forego an action when the costs to him are higher than the expected benefits. This mechanism is at the core of the law and economics debate. Second, the threat of punishment is also a means of communication to express that a certain action is morally reprehensible. An individual with normal socialization and internalization of social norms does not want to appear to be a despicable person, either to society or (above all) to himself. He will instinctively forego actions that are generally considered detestable without rationally reflecting on the costs and benefits of his choice. As Professor Kahan has shown, in order to communicate moral reprehensibility, the threatened sanctions must express some form of contempt. Or, in other words, the","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114293398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.91
P. Albrecht
Discussion of the victim in criminal policy is a fashion, peculiar in the sense that virtually identical contents appear again and again dressed in new clothes. Viewed from a distance, the victim has become an opalescent concept of criminal justice—opalescent because the models and conceptions of the victim in criminal justice depend, to a significant degree, on the perspective of the viewer. Thus we find:
{"title":"The Functionalization of the Victim in the Criminal Justice System","authors":"P. Albrecht","doi":"10.1525/NCLR.1999.3.1.91","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.91","url":null,"abstract":"Discussion of the victim in criminal policy is a fashion, peculiar in the sense that virtually identical contents appear again and again dressed in new clothes. Viewed from a distance, the victim has become an opalescent concept of criminal justice—opalescent because the models and conceptions of the victim in criminal justice depend, to a significant degree, on the perspective of the viewer. Thus we find:","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"152 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121213573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.235
Detlev Frehsee
{"title":"Restitution and Offender-Victim Arrangement in German Criminal Law: Development and Theoretical Implications","authors":"Detlev Frehsee","doi":"10.1525/NCLR.1999.3.1.235","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.235","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131180352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.109
Cornelius Prittwitz
On March 25th, 1996, Jan Philipp Reemtsma was kidnapped. He was held prisoner in a small dark cellar for thirty-three days. More than once he thought that his kidnappers would kill him. They did not. Instead he was released, after his family had paid the sum of thirty million DM. Before he became a victim, Reemtsma had not been a public figure, even though he bore famous name of one of the leading tobacco industries. Thanks to his fortune, he belonged—and still belongs—to the endangered species of “Privatgelehrten,” working in, heading, and funding the Hamburg Institute for Social Research. After the crime, not being a public figure was no longer an option. Reemtsma made the best of the situation and published a diary about the kidnapping and the time after. In this book, he reflects, among other things, on what punishment generally does to offenders and to victims. In his view, “[p]unishment shows the
1996年3月25日，Jan Philipp Reemtsma被绑架。他被关在一个黑暗的小地窖里33天。他不止一次认为绑匪会杀了他。他们没有。相反，在他的家人支付了3000万德国马克之后，他被释放了。在他成为受害者之前，Reemtsma并不是一个公众人物，尽管他在一家领先的烟草行业中享有盛名。由于他的财富，他曾经是——现在仍然是——濒临灭绝的“私人顾问”中的一员，在汉堡社会研究所工作、领导并资助。犯罪发生后，不做公众人物不再是一种选择。Reemtsma充分利用了这种情况，并发表了一篇关于绑架和之后时间的日记。在这本书中，他思考了惩罚通常对罪犯和受害者的影响。在他看来，“惩罚显示了……
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Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.51
G. Fletcher
Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment. Admittedly, victims and their sentiments have come to play a major role in sentencing in the United States. Victims are encouraged to speak at the time of sentencing and to express their personal preferences about what should happen to the convicted defendant. Since the victims usually are interested in making the defendant suffer as much as possible, this practice services the interests of prosecutors. But the sentiments of the particular victims seem to me less important than the class of victims violated by the particular offense. In the crime of homicide, for example, it should not matter whether the decedent is a solitary old lady killed for her money or the mother of three killed in a drive-by-shooting. After Susan Smith killed her two children in South Carolina, her mother and ex-husband weighed in with their views on whether she deserved the death penalty or not. It would seem odd that the determination of the death penalty should depend on the general affection or hostility of the defendant's relatives. Victims definitely have a place in the definition of the
{"title":"The Place of Victims in the Theory of Retribution","authors":"G. Fletcher","doi":"10.1525/NCLR.1999.3.1.51","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.51","url":null,"abstract":"Remarkably, the theory of criminal law has developed without paying much attention to the place of victims in the analysis of responsibility or in the rationale for punishment. You can read a first-rate book like Michael Moore's recent Placing Blame and not find a single reference to the relevance of victims in imposing liability and punishment. In the last several decades we have witnessed notable strides toward attending to the rights and interests of crime victims, but these concerns have yet to intrude upon the discussion of the central issues of wrongdoing, blame, and punishment. Admittedly, victims and their sentiments have come to play a major role in sentencing in the United States. Victims are encouraged to speak at the time of sentencing and to express their personal preferences about what should happen to the convicted defendant. Since the victims usually are interested in making the defendant suffer as much as possible, this practice services the interests of prosecutors. But the sentiments of the particular victims seem to me less important than the class of victims violated by the particular offense. In the crime of homicide, for example, it should not matter whether the decedent is a solitary old lady killed for her money or the mother of three killed in a drive-by-shooting. After Susan Smith killed her two children in South Carolina, her mother and ex-husband weighed in with their views on whether she deserved the death penalty or not. It would seem odd that the determination of the death penalty should depend on the general affection or hostility of the defendant's relatives. Victims definitely have a place in the definition of the","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115136823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1999-04-01DOI: 10.1525/NCLR.1999.3.1.175
Tatjana Höörnle
{"title":"Distribution of Punishment: The Role of a Victim's Perspective","authors":"Tatjana Höörnle","doi":"10.1525/NCLR.1999.3.1.175","DOIUrl":"https://doi.org/10.1525/NCLR.1999.3.1.175","url":null,"abstract":"","PeriodicalId":344882,"journal":{"name":"Buffalo Criminal Law Review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1999-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129735556","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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