Pub Date : 2018-04-23DOI: 10.35295/OSLS.IISL/0000-0000-0000-1006
Octavio Salazar Benítez
La prostitución se debe analizar necesariamente desde una perspectiva de género, es decir, teniendo en mente las relaciones de poder que implica. Este acercamiento obliga a centrarse en la figura del hombre como sujeto de la prostitución y en la estrecha relación que existe entre el sistema prostitucional y la masculinidad hegemónica. Por consiguiente, es necesario penalizar al consumidor de prostitución e implementar políticas públicas para desactivar la demanda, al mismo tiempo que se revisa el modelo de subjetividad masculina que continúa sosteniendo el orden patriarcal. Prostitution must necessarily be analyzed from a gender perspective, that is, bearing in mind the power relations involved. This approach requires putting the focus on the figure of man as a subject of prostitution and in the close relationship that exists between the prostitution system and hegemonic masculinity. Consequently, its necessary to penalize the consumer of prostitution and to implement public policies to deactivate the demand. At the same time the need to revise the model of masculine subjectivity that continues sustaining the patriarchal order.
{"title":"La Penalización De Los Clientes Como Instrumento De Lucha Contra El Sistema Prostitucional: Una Cuestión De Dignidad Y Derechos Fundamentales (The Criminalization of Clients as an Instrument to Fight Against the Prostitution System)","authors":"Octavio Salazar Benítez","doi":"10.35295/OSLS.IISL/0000-0000-0000-1006","DOIUrl":"https://doi.org/10.35295/OSLS.IISL/0000-0000-0000-1006","url":null,"abstract":"La prostitución se debe analizar necesariamente desde una perspectiva de género, es decir, teniendo en mente las relaciones de poder que implica. Este acercamiento obliga a centrarse en la figura del hombre como sujeto de la prostitución y en la estrecha relación que existe entre el sistema prostitucional y la masculinidad hegemónica. Por consiguiente, es necesario penalizar al consumidor de prostitución e implementar políticas públicas para desactivar la demanda, al mismo tiempo que se revisa el modelo de subjetividad masculina que continúa sosteniendo el orden patriarcal.\u0000\u0000Prostitution must necessarily be analyzed from a gender perspective, that is, bearing in mind the power relations involved. This approach requires putting the focus on the figure of man as a subject of prostitution and in the close relationship that exists between the prostitution system and hegemonic masculinity. Consequently, its necessary to penalize the consumer of prostitution and to implement public policies to deactivate the demand. At the same time the need to revise the model of masculine subjectivity that continues sustaining the patriarchal order.","PeriodicalId":408606,"journal":{"name":"LSN: Criminal Law (Sexuality) (Topic)","volume":"54 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122162662","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}
This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have persistently and robustly regulated sex and sexuality, including “ordinary sex.” Building on this more historical and nuanced portrait of America’s “sex bureaucracy,” we then identify what is truly new and striking about the slice that Gersen and Suk explore. In the Department of Education’s regulation of sex, we see clearly how consent — and specifically, affirmative consent — has replaced marriage as the boundary marker between licit and illicit sexual conduct. At a time when marriage no longer holds force as the distinguishing feature of lawful sex and sexuality, enthusiastic, unambivalent expressions of consent provide the state with documentable signals of appropriate sex and sexuality, while also, we speculate, reinforcing an ascendant neoliberal logic of citizenship and governance. In short, the “sex bureaucracy” is old, but innovative, and very much deserving of our scrutiny.
{"title":"Something Old, Something New: Reflections on the Sex Bureaucracy","authors":"Melissa E. Murray, Karen M. Tani","doi":"10.15779/Z38ZK3C","DOIUrl":"https://doi.org/10.15779/Z38ZK3C","url":null,"abstract":"This essay responds to “The Sex Bureaucracy,” in which Jacob Gersen and Jeannie Suk identify a “bureaucratic turn in sex regulation” — one that has expanded the reach of sexual regulation to include “nonviolent, non-harassing, voluntary sexual conduct” (or in their words, “ordinary sex”). In their view, the Department of Education’s campaign against sexual assault on college campuses epitomizes this bureaucratic shift. While applauding the authors’ attention to the intersection of sexuality and governance, we challenge their account of the “bureaucratic turn” as an unprecedented event. Drawing on examples from across U.S. history, we show how administrative agencies and unelected bureaucrats have persistently and robustly regulated sex and sexuality, including “ordinary sex.” Building on this more historical and nuanced portrait of America’s “sex bureaucracy,” we then identify what is truly new and striking about the slice that Gersen and Suk explore. In the Department of Education’s regulation of sex, we see clearly how consent — and specifically, affirmative consent — has replaced marriage as the boundary marker between licit and illicit sexual conduct. At a time when marriage no longer holds force as the distinguishing feature of lawful sex and sexuality, enthusiastic, unambivalent expressions of consent provide the state with documentable signals of appropriate sex and sexuality, while also, we speculate, reinforcing an ascendant neoliberal logic of citizenship and governance. In short, the “sex bureaucracy” is old, but innovative, and very much deserving of our scrutiny.","PeriodicalId":408606,"journal":{"name":"LSN: Criminal Law (Sexuality) (Topic)","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125025190","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}
J. Lawrence, D. Levin, Kevin Brady, Maria Jhai, T. Lyon
“Testimonial” statements are inadmissible against criminal defendants under the Confrontation Clause unless the declarant was subject to cross-examination. Statements are testimonial if the primary purpose of the speaker and the interrogator was to create an out-of-court substitute for trial testimony. Ohio v. Clark (2015) considered whether a 3-year-old’s disclosure of abuse to his teacher is testimonial. This brief surveyed case law, statutory law, and psychological and criminological research in arguing that it is not. First, young children do not appreciate that their disclosures may be used at trial, because they do not fully understand the legal system. Furthermore, many children do not want their disclosures to lead to criminal punishment because of their relationship with the abuser. In other contexts, the court has recognized that children often lack the same purpose and understanding as adults. Second, the primary purpose of teachers and other mandated reporters is to protect children rather than to punish abusers. The statutory purpose of mandated reporting laws is to protect children and rehabilitate the family, and, as a practical matter, states achieve this primarily through child-protective services investigations and civil proceedings in juvenile court. The court has recognized the distinction between a protective and punitive purpose in defining other constitutional rights. Third, finding children’s statements nontestimonial will promote accuracy in adjudication. The courts assess the reliability of statements before admitting them into evidence, and defendants are free to challenge their credibility. Flexibility in classifying children’s statements as testimonial will encourage the states to videotape investigative interviews with children.
根据对质条款，除非声明人接受了质证，否则对刑事被告的“证词”陈述是不可接受的。如果说话人和审讯人的主要目的是在庭外为审判证词提供替代，那么陈述就是证词。俄亥俄州诉克拉克案(Ohio v. Clark, 2015)考虑的是一名3岁儿童向老师披露虐待行为是否具有证明意义。本文简要地调查了判例法、成文法以及心理学和犯罪学的研究，认为这不是事实。首先，年幼的孩子不明白他们所披露的信息可能会被用于审判，因为他们不完全了解法律制度。此外，许多儿童不希望他们的揭露因为他们与施虐者的关系而导致刑事处罚。在其他情况下，法院认识到儿童往往缺乏与成年人相同的目的和理解。其次，教师和其他被授权的记者的主要目的是保护儿童，而不是惩罚施虐者。强制性报告法的法定目的是保护儿童和恢复家庭，作为一个实际问题，各国主要通过儿童保护服务调查和少年法庭民事诉讼来实现这一目标。在界定其他宪法权利时，法院已经认识到保护目的和惩罚目的之间的区别。第三，发现儿童陈述不具有证据性将提高判决的准确性。法院在将陈述作为证据之前会对其可靠性进行评估，被告可以自由质疑陈述的可信度。将儿童陈述分类为证词的灵活性将鼓励各州对儿童的调查采访进行录像。
{"title":"Ohio V. Clark: Brief of Amicus Curiae American Professional Society on the Abuse of Children in Support of Petitioner","authors":"J. Lawrence, D. Levin, Kevin Brady, Maria Jhai, T. Lyon","doi":"10.1037/LAW0000062","DOIUrl":"https://doi.org/10.1037/LAW0000062","url":null,"abstract":"“Testimonial” statements are inadmissible against criminal defendants under the Confrontation Clause unless the declarant was subject to cross-examination. Statements are testimonial if the primary purpose of the speaker and the interrogator was to create an out-of-court substitute for trial testimony. Ohio v. Clark (2015) considered whether a 3-year-old’s disclosure of abuse to his teacher is testimonial. This brief surveyed case law, statutory law, and psychological and criminological research in arguing that it is not. First, young children do not appreciate that their disclosures may be used at trial, because they do not fully understand the legal system. Furthermore, many children do not want their disclosures to lead to criminal punishment because of their relationship with the abuser. In other contexts, the court has recognized that children often lack the same purpose and understanding as adults. Second, the primary purpose of teachers and other mandated reporters is to protect children rather than to punish abusers. The statutory purpose of mandated reporting laws is to protect children and rehabilitate the family, and, as a practical matter, states achieve this primarily through child-protective services investigations and civil proceedings in juvenile court. The court has recognized the distinction between a protective and punitive purpose in defining other constitutional rights. Third, finding children’s statements nontestimonial will promote accuracy in adjudication. The courts assess the reliability of statements before admitting them into evidence, and defendants are free to challenge their credibility. Flexibility in classifying children’s statements as testimonial will encourage the states to videotape investigative interviews with children.","PeriodicalId":408606,"journal":{"name":"LSN: Criminal Law (Sexuality) (Topic)","volume":"122 2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128358247","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 the UK media, the Netherlands is often described as sexually liberal because of the seeming availability and visibility of commercial sex and pornographic materials. But Kilvington et al (2001) argue that the majority of the population remain strongly censorious, and the moral attitude of the Dutch towards prostitution is not so different from that of other European countries. Hekma (2000) and Oosterhuis (1998) likewise argue that to work in prostitution is to face stigmatization, condemnation or pity from the Dutch public. However, the pragmatism characteristic of Dutch social policy has meant that the sex industry has been long regarded (like other undesirable social phenomena) as an activity whose impacts on society as a whole might best dealt with through pragmatic tolerance (van Doorninck et al., 1998). As such, while brothels were technically illegal in Dutch cities between 1911 and 2000, they only attracted the attention of the public prosecutor where obvious nuisance or exploitation has occurred. In the case of street prostitution, soliciting and purchasing sex has also been tolerated when it occurs in the designated and managed tippelzones that exist in major Dutch cities. This does not imply that the Dutch government has turned a ‘blind eye’ to sex work, or adopted a laissez faire attitude; rather it has identified prostitution as requiring particular attention because of the risks of exploitation and coercion which adhere to commercial sex, as well as the potential nuisances that might be caused to local communities by sex work.
在英国媒体中，荷兰经常被描述为性自由国家，因为那里的性交易和色情材料随处可见。但Kilvington等人(2001)认为，大多数人口仍然强烈审查，荷兰人对卖淫的道德态度与其他欧洲国家并没有太大不同。Hekma(2000)和Oosterhuis(1998)同样认为，从事卖淫工作将面临荷兰公众的污名化、谴责或同情。然而，荷兰社会政策的实用主义特征意味着性产业长期以来一直被视为一种活动(像其他不受欢迎的社会现象一样)，其对整个社会的影响可能最好通过实用主义宽容来处理(van Doorninck et al.， 1998)。因此，虽然在1911年至2000年期间，妓院在荷兰城市严格来说是非法的，但它们只会在发生明显滋扰或剥削的情况下引起公诉人的注意。在街头卖淫的情况下，在荷兰主要城市的指定和管理的小费区，拉客和购买性行为也得到容忍。这并不意味着荷兰政府对性工作“视而不见”，或者采取放任的态度;相反，它认为卖淫需要特别注意，因为从事商业性活动有剥削和胁迫的危险，而且性工作可能对当地社区造成潜在的滋扰。
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Since the Federal Rules of Evidence were codified in 1975, few revisions have been as controversial as the rules allowing the use of prior “bad acts” of defendants in trials for sexually-based offenses. For nearly two centuries, such evidence had been banned under what we now know as Rule 404, which strictly prohibits “[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith.” But in 1995, Congress introduced Rules 413-415, which for the first time explicitly endorsed the use of prior acts of sexual assault and child molestation for the purpose of showing that the defendant, having committed such acts in the past, is more likely to have committed the crime in question. Although the rules are imperfect, they are here to stay, and more importantly, the next step for these rules may well be their expansion. Using the existing rules as a template for allowing character evidence in contexts beyond sex offenses will only exacerbate the rules’ current flaws, and therefore, the challenge facing federal rulemakers will be - not whether to repeal the rules entirely - but rather, how to expand these rules responsibly. That roadmap will be the subject of this Paper. The proposal offered here would require prosecutors desiring to use prior bad acts demonstrate, through the presentation of “qualified” and “compelling” research, that the defendant, having committed the particular prior acts, would be more likely to commit the crime in question. This presentation would occur prior to trial, typically through a Daubert-like motion or hearing, where expert testimony could be heard. On the one hand, this proposal would increase the burden on prosecutors to show that the particular prior acts should be admitted in the particular case - rather than relying on the existing categorical rules - but on the other hand, it would allow prosecutors to use character evidence in new ways so long as the burden is met. Courts would act as gatekeepers, and social science, rather than politics, will be allowed to guide the expansion in the use of propensity evidence.
自1975年《联邦证据规则》(Federal Rules of Evidence)编纂以来，很少有修订像允许在性犯罪审判中使用被告先前的“不良行为”的规则那样引起争议。近两个世纪以来，根据我们现在所知的404规则，这类证据被禁止，该规则严格禁止“其他犯罪、错误或行为的证据……”证明一个人的品格，以便表现出与之相符的行为。”但在1995年，国会引入了第413-415条规则，首次明确支持使用先前的性侵犯和猥亵儿童行为，以证明被告在过去有过此类行为，更有可能犯下所涉及的罪行。尽管这些规则并不完善，但它们将继续存在，更重要的是，这些规则的下一步很可能是它们的扩展。使用现有的规则作为模板，在性犯罪以外的情况下允许品格证据，只会加剧规则目前的缺陷，因此，联邦规则制定者面临的挑战将不是是否完全废除这些规则，而是如何负责任地扩大这些规则。该路线图将是本文的主题。这里提出的建议将要求希望使用先前不良行为的检察官，通过提出“合格的”和“令人信服的”研究，证明犯有特定先前行为的被告更有可能犯下所涉罪行。这种陈述将在审判之前进行，通常通过道伯特式动议或听证会，在那里可以听到专家的证词。一方面，这项建议将增加检察官的负担，使他们必须表明在特定案件中应承认特定的先前行为- -而不是依靠现有的绝对规则- -但另一方面，它将允许检察官以新的方式使用品格证据，只要符合责任。法院将扮演守门人的角色，而社会科学(而非政治)将被允许指导倾向证据使用的扩大。
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Pub Date : 2009-01-01DOI: 10.1111/j.1468-2230.2009.00734.x
A. Murray
Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Government's attempt to control the availability of such material through s.63 of the Criminal Justice and Immigration Act 2008, which criminalises possession of such images. It begins by examining the consultation process and concludes that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy. The article then examines whether this weakness in the foundations for the proposed new offence caused the proposal to be substantially amended during the Committee Stage of the Criminal Justice and Immigration Bill: to the extent that the final version of s.63 substantially fails to meet the original public policy objective. The article concludes by asking whether s.63 may have unintended consequences in that it fails to criminalise some of the more extreme examples of violent pornography while criminalising consensual BDSM images, and questions whether s.63 will be enforceable in any meaningful way.
{"title":"The Reclassification of Extreme Pornographic Images","authors":"A. Murray","doi":"10.1111/j.1468-2230.2009.00734.x","DOIUrl":"https://doi.org/10.1111/j.1468-2230.2009.00734.x","url":null,"abstract":"Legal controls over the importation and supply of pornographic imagery promulgated nearly half a century ago in the Obscene Publications Acts have proven to be inadequate to deal with the challenge of the internet age. With pornographic imagery more readily accessible in the UK than at any time in our history, legislators have been faced with the challenge of stemming the tide. One particular problem has been the ready accessibility of extreme images which mix sex and violence or which portray necrophilia or bestiality. This article examines the Government's attempt to control the availability of such material through s.63 of the Criminal Justice and Immigration Act 2008, which criminalises possession of such images. It begins by examining the consultation process and concludes that an underlying public policy objective was the root of the new offence despite the lack of a clear mandate for such a policy. The article then examines whether this weakness in the foundations for the proposed new offence caused the proposal to be substantially amended during the Committee Stage of the Criminal Justice and Immigration Bill: to the extent that the final version of s.63 substantially fails to meet the original public policy objective. The article concludes by asking whether s.63 may have unintended consequences in that it fails to criminalise some of the more extreme examples of violent pornography while criminalising consensual BDSM images, and questions whether s.63 will be enforceable in any meaningful way.","PeriodicalId":408606,"journal":{"name":"LSN: Criminal Law (Sexuality) (Topic)","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121515199","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}
Despite the paucity of research on the death penalty and gender discrimination, it is widely supposed that women murderers are chivalrously spared the death sentence. This supposition is fueled by the relatively small number of women who are condemned. This article argues that women are represented on contemporary U.S. death rows in numbers commensurate with the infrequency of female commission of those crimes which our society labels sufficiently reprehensible to merit capital punishment. Additionally, preliminary investigation suggests that death-sentenced women are more likely than death-sentenced men to have killed intimates, although the explanation for this disparity is not yet at hand. It is further argued, on the basis of a content analysis of state capital statutes, that there is a form of gender bias inimical to the interests of women in our capital punishment law: The death penalty is a dramatic symbol of the imputation of greater seriousness to economic and other predatory murder as compared with domestic murder.
{"title":"The Death Penalty and Gender Discrimination","authors":"Elizabeth Rapaport","doi":"10.2307/3053803","DOIUrl":"https://doi.org/10.2307/3053803","url":null,"abstract":"Despite the paucity of research on the death penalty and gender discrimination, it is widely supposed that women murderers are chivalrously spared the death sentence. This supposition is fueled by the relatively small number of women who are condemned. This article argues that women are represented on contemporary U.S. death rows in numbers commensurate with the infrequency of female commission of those crimes which our society labels sufficiently reprehensible to merit capital punishment. Additionally, preliminary investigation suggests that death-sentenced women are more likely than death-sentenced men to have killed intimates, although the explanation for this disparity is not yet at hand. It is further argued, on the basis of a content analysis of state capital statutes, that there is a form of gender bias inimical to the interests of women in our capital punishment law: The death penalty is a dramatic symbol of the imputation of greater seriousness to economic and other predatory murder as compared with domestic murder.","PeriodicalId":408606,"journal":{"name":"LSN: Criminal Law (Sexuality) (Topic)","volume":"62 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126745792","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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