Law, Violence, and Sexual Consent

2020 ◽  
pp. 277-310
Author(s):  
Latika Vashist
Keyword(s):  
Grounded Theory ◽  
Criminal Law ◽  
Sexual Consent ◽  
Legal Scholarship ◽  
Legal Violence ◽  
Rape Law ◽  
The Subject ◽  
Definition Of ◽  
Sex Positive ◽  
Feminist Legal Scholarship

This essay approaches the question of law and violence through the category of sexual consent, as it is articulated, interpreted and theorized in rape law in India. While the incorporation of an explicit definition of sexual consent has been seen as a feminist move in the criminal law in India, I argue that consent, being grounded in the liberal models of abstract individualism, is premised on an under-theorized conception of sexuality as well as ‘desire’. It is my claim that if law seeks to perform an ‘educative role’ and feminist legal scholarship and pedagogy is an attempt at an ‘uncoercive re-arrangement of desires’,i then we need to produce more nuanced accounts of the sexual and desiring subjects. The dominant frames of sex-negative and sex-positive feminisms may not offer us any insights into this and may inadvertently become complicit with legal violence in its foundational as well as interpretive moments. In this backdrop, I will argue that we need to push towards a more complex understanding of consent based on a more grounded theory of the subject at the centre of law and feminism which takes into account the complexities, contradictions, complicities, and violence that form human subjectivity, sexuality, and desire. The essay critically examines the definition of consent introduced in 2013 criminal law amendments and argues for a reading of sexual consent within a relational psychoanalytic framework that takes desire seriously.

scholarly journals Individualization of punishment in accordance with criminal legislation of Spain: concept, rules of formalization (calculation), and doctrinal substantiation (comparative legal research)

2020 ◽  
pp. 46-61
Author(s):  
Elena Yurishina
Keyword(s):  
Criminal Law ◽  
Judicial Discretion ◽  
Legal Research ◽  
Russian Science ◽  
Original Definition ◽  
The Subject ◽  
Similarities And Differences ◽  
Definition Of ◽  
Criminal Legislation ◽  
Spanish Legislation

  This article examines the question of imposition of punishment (pena) and its individualization (individualización) in Spain from the perspective of criminal law theory. The subject of this research is a set of legislative norms, doctrinal interpretations and explanations, contained in interpretational acts of Spain dedicated to the assemblage of mathematical rules of calculation of the term of punishment by combination of certain characteristics of the case (formalization rules in the Russian analogue) and circumstances reluctant to quantitative evaluation (oriented towards the criteria of judicial discretion). The article also presents some theoretical insights into the question of making decision on the punishment and competition between formalization and judicial discretion. Research methodology is based on the formal-legal and comparative methods, which allowed the author to examine Spanish legislation and determined certain analogies with the Russian. The scientific novelty consists in the detailed and systematized description of the rules of formalization of punishment in Spanish legislation, enlarge the capabilities of Russian science with regards to analysis of similarities and differences in legislations of various countries. The author offers the original definition of the institution of assignment of punishment that includes criminal-procedural vector, as well as substantiates an opinion why stringent formalization does not always meet the demands of justice.  

The Weapon and Means of Committing a Crime: the Concept and the Relation

2021 ◽  
Vol 8 (1) ◽  
pp. 75-82
Author(s):  
Natalia S. Goncharova
Keyword(s):  
Criminal Law ◽  
The Subject ◽  
Definition Of ◽  
Functional Purpose

Tools and means play integral roles in the commission of a crime. However, their concepts and criteria for differentiation have not yet been clearly delineated by science. The author analyzes the most significant views of scientists on the concept of tools and means in the commission of crimes. He provides criteria for distinguishing them from each other: by functional purpose, the degree (nature) of their impact on the object of the crime, and the form of external expression. He further considers the features inherent in both tools and means: how they facilitate the implementation of the criminal goal; refer to optional features of the objective aspects of the crime; how their use significantly increases the degree of public danger of the act and completely depends on the consciousness and will of the subject; and how they justify the author's position on the concepts of criminal law under study. It is concluded that the exact interpretation of the concepts of tools and means of committing a crime, the definition of their

scholarly journals Sexual Assault Cases at the Alberta Court of Appeal: The Roots of Ewanchuk and the Unfinished Revolution

2014 ◽  
Vol 52 (1) ◽  
pp. 127 ◽  
Author(s):  
Janine Benedet
Keyword(s):  
Sexual Assault ◽  
Criminal Law ◽  
Law Reform ◽  
Sexual Offences ◽  
Rape Law ◽  
Rape Law Reform ◽  
Definition Of ◽  
Court Of Appeal

This article surveys rape law reform efforts in Canadian criminal law by mapping these changes onto the decisions of the Alberta Court of Appeal. First, the article outlines how decisions in the 1970s and 1980s reflected ideas and assumptions about sexual offences. It then traces how these ideas were challenged in law reform efforts in 1983 and 1992. Next the article turns to the definition of non-consent and the Ewanchuk case, and how the reasons at the Court of Appeal reflect evolving attitudes to sexual assault. Finally, the article ends with reflections on sexual assault law following the Ewanchuk decision.

Rape Law Commonalities

2020 ◽  
pp. 57-74
Author(s):  
Stuart P. Green
Keyword(s):  
Sexual Assault ◽  
Criminal Law ◽  
Sexual Contact ◽  
Historical Overview ◽  
Rape Law ◽  
Definition Of ◽  
Act Requirement

This chapter focuses on a range of issues common to all six of the rape paradigms that are described in subsequent chapters. It begins with a brief historical overview of rape law, observing a significant expansion in the definition of rape and sexual assault along two axes, namely, the kinds of sexual contact covered and the means by which nonconsent is manifested. It then considers the disparate ways in which the labels rape and sexual assault have been used, and makes an argument for retaining the term rape in the criminal law. Next, it considers how the physical act requirement in rape and sexual assault has been defined in a range of criminal codes, finally touching on some of the challenges of offense grading.

Object of the Crime as a Symbol in the Doctrine of the Composition of the Crime

2021 ◽  
Vol 8 (2) ◽  
pp. 61-70
Author(s):  
Natalya S. Goncharova
Keyword(s):  
20Th Century ◽  
Criminal Law ◽  
Clear Definition ◽  
Legal Literature ◽  
The Subject ◽  
Definition Of ◽  
Objective Side ◽  
Criminal Legislation ◽  
Further Development

The author attempts to determine the place of the object of the crime in the doctrine of the composition of the crime. They analyze the views of scientists available in legal literature at various historical stages in the development of Russian legislation pertaining to criminal acts. Pre-revolutionary criminal legislation did not distinguish between the objects and the subjects of the crime. At the beginning of the 20th century, Russian criminal law science began to realize the need to distinguish the objects of crimes from the subjects. Since 1953, in connection with liberalization, there has been a clear definition of the subject of crimes, depending on their composition. Further development of the doctrine of the subject of crimes is characterized by a wide variety of scientists views, which the author analyzes, combining them into two groups, depending on the location of the subject of the crime as part of the crime: 1) the subject of the crime is a sign of the objective side of the crime and does not depend in any way; 2) the subject of the crime is a sign of the object of the crime and is inextricably linked with it.

On Trajectories and Destinations of International Criminal Law Scholarship

2015 ◽  
Vol 28 (4) ◽  
pp. 701-716 ◽  
Author(s):  
SERGEY VASILIEV
Keyword(s):  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Methodological Issues ◽  
Legal Scholarship ◽  
Current State ◽  
The Subject ◽  
The Moment ◽  
Changing Role

Taking up the torch from my fellow co-editors who have addressed substantive and methodological issues of international criminal law (ICL) in their contributions, I propose to turn to the current state and prospects of its scholarship. The moment is opportune for such a reflection. The questions raised by the production and dissemination of international legal scholarship were the leitmotif of past editorials and its (changing) role was chosen as the theme of the latest LJIL symposium. The professional functions of international legal scholars have been the subject of renewed interest and debate. To give an impulse to a similar debate in ICL, I will try to capture the zeitgeist of its academia and offer some observations on the positioning of scholarship vis-à-vis practice in ICL. Perspectives from this specialized field may enrich the existing conceptualizations of international legal scholarship and provide a new angle on its place within the profession.

Analysis and generalization of approaches to defining the subject of economic expertise

2021 ◽  
pp. 120-127
Author(s):  
Д.А. Пименова ◽  
А.Е. Суглобов ◽  
Т.Ю. Демина
Keyword(s):  
Criminal Law ◽  
Civil Law ◽  
Administrative Law ◽  
The Subject ◽  
Definition Of

Учитывая опыт авторов, накопленный в результате производства и рецензирования экономических экспертиз, в статье предложены следующие вопросы для рассмотрения: · Что понимается под «предметом экспертизы»; · Аккумулируем ведомственные подходы в определении предмета экономической экспертизы; · Аккумулируем сущностные подходы в определении предмета экономической экспертизы применимо к сфере интересов административного права, гражданского права и уголовного права при раскрытии экономических правонарушений; · Предлагаем определение предмета экономической экспертизы по востребованным направлениям в расследовании экономических правонарушений. Taking into account the experience of the authors, accumulated as a result of the production and reviewing of economic examinations, the article suggests the following questions for consideration: • What is meant by the «subject of expertise»; • We accumulate departmental approaches in determining the subject of economic expertise; • We accumulate essential approaches in determining the subject of economic expertise applicable to the sphere of interests of administrative law, civil law and criminal law in the disclosure of economic offenses; • We offer the definition of the subject of economic expertise in the areas in demand in the investigation of economic offenses.

scholarly journals Features of the subject matter of crimes in the sphere of official activity

2020 ◽  
pp. 125-132
Author(s):  
Grygoriy Usatiy
Keyword(s):  
Key Words ◽  
Criminal Law ◽  
Subject Matter ◽  
Civil Service ◽  
Criminal Code ◽  
Administrative Functions ◽  
The Supreme Court ◽  
The Subject ◽  
Definition Of ◽  
State Body

The article is sanctified to realization of criminal law analysis of individual issues, in particular: the concept of an official as a subject of a crime; categories (types) of officials; legislative definition of government representatives, interpretation of organizational and administrative and administrative and economic functions (responsibilities); definition of the content of the concept of “subordination”, etc. as circumstances subject to further proof.In the article the argued elucidations are given in relation to that, or there were deputies of Head of Administration of President of Ukraine in a period from 22.07.2014 for by 11.05.2019 official persons in understanding a century 18, century 364 or century 367 the Criminal code of Ukraine. Administration of President of Ukraine is an auxiliary, constantly operating body that is created by President of Ukraine on the basis of the article of a 106 Constitution of Ukraine. Thus, Administration does not make decision, obligatory for other subjects, does not carry out state imperious administrative functions, and it is not had to jurisdiction that spreads to certain territory, but thus is not a public organ in understanding of Law of Ukraine «About prevention of corruption». In according to the position of the Supreme Court, the Deputy Head of the Administration of the President of Ukraine is not an official of a state body. The position of the Deputy Head of the Administration of the President of Ukraine also does not belong to any of the categories of civil service positions defined by Article 6 of the Law of Ukraine «On Civil Service». The foregoing allows us to conclude that the Deputy Heads of the Presidential Administration of Ukraine in the period from 07.22.2014 to 05.11.2019 were employees of a permanent subsidiary body formed by the President of Ukraine with consultative and advisory functions. And they also did not perform organizational and administrative or administrative functions, and therefore were not officials in the understanding of Articles 18, 364, 367 of the Criminal Code of Ukraine. Key words: the subject of the crime, executive, government representative, organizational and administrative and administrative functions (responsibilities).

scholarly journals The environment as an object of criminal law protection: problems of definition and legislative regulation

2021 ◽  
Vol 295 ◽  
pp. 04003
Author(s):  
Olga Yakovleva
Keyword(s):  
Public Relations ◽  
Natural Resources ◽  
Social Relations ◽  
Criminal Law ◽  
Environmental Safety ◽  
State Ownership ◽  
Legislative Regulation ◽  
The Subject ◽  
Definition Of ◽  
Environmental Crimes

The article is devoted to the study of the problems of definition and legislative regulation of the environment as an object of criminal law protection. The correct legislative regulation and the definition of the object and subject of the crime in the criminal law standard contribute to the correct labeling process. In the legal literature, there is no consensus on the definition of the object of environmental crimes. Some believe that the object of this group of crimes is the order of use of natural resources or social relations related to their economic exploitation; others believe that the relations of state ownership, which are expressed in natural resources; finally, the object of this group of crimes is directly the natural resources themselves or the entire environment. Taking into account the legislative regulation of norms united by generic and species groups and the scientific and theoretical definition of the direct object of the crime, we believe that the object of environmental crimes is public relations for the protection of the environment, the preservation of favorable natural conditions for nature, living beings and ensuring a sufficient level of environmental safety. In this context, a favorable environment should be considered as an environment whose quality ensures the safety of the natural environment functioning and other objects. The subject of crime in the science of criminal law makes it possible to solve many important issues from a practical point of view since it is characterized by relative criminal-legal independence: to distinguish between general and special elements of crimes; the subject of the crime allows you to reveal the nature and extent of the damage that was caused by the crime, as well as to identify the relationship between the criminal act and the consequences that occurred.

scholarly journals Environmental criminal offences - victimless crimes?

Temida ◽  
2013 ◽  
Vol 16 (1) ◽  
pp. 113-132
Author(s):  
Ana Batricevic
Keyword(s):  
Criminal Law ◽  
Tax Evasion ◽  
Social Groups ◽  
Environmental Crime ◽  
Bodily Integrity ◽  
Traditional Definition ◽  
Entire Society ◽  
The Subject ◽  
Per Se ◽  
Definition Of

Ecological criminal offences, the most serious forms of harming and threatening of environment or its integral parts, represents a global phenomenon of great social hazard. They are often connected with organized transnational criminality, criminal offences against life and bodily integrity, corruption, tax evasion and discrimination. Disputable nature of the subject these incriminations protect imposes a question: ?Who are the victims of ecological criminal offences - individuals, social groups, entire society or environment as value per se?? Perceiving ecological criminal offences as victimless crimes diminishes their importance and the circle of subjects interested to unveil, prove, prevent, suppress and impose punishments for these offences. Therefore, the author discusses the sustainability of the traditional, anthropocentrically defined term of victim in the context of biocentrism and its growing influence on criminal law, criminology and victimology. Attempting to determine whether ecological criminal offences represent victimless crimes, the author analyzes their term, characteristics and significance. Starting from the traditional definition of victim, she analyzes the term of ?victimless crimes? and its (un)sustainability in the context of environmental crime, focusing on its most frequent victims and the necessity of their protection.

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