scholarly journals Failing to See the Wood for the Trees: Chronic Sexual Violation and Criminal Law

2020 ◽  
Vol 84 (6) ◽  
pp. 573-595
Author(s):  
Tanya Palmer
Keyword(s):  
Lived Experience ◽  
Case Law ◽  
Legal Framework ◽  
Sexual Autonomy ◽  
Abusive Relationship ◽  
Policy Responses ◽  
Law And Policy ◽  
Sexual Violation ◽  
Legal Responses ◽  
Original Concept

This article argues that sexual violation can take both ‘chronic’ and ‘acute’ forms. The latter, encapsulated by the offences of rape and sexual assault, refers to a discrete incident in which a victim’s sexual autonomy is violated. By contrast, the article articulates an original concept of ‘chronic sexual violation’, in which the victim’s autonomy is gradually eroded over a longer period of time, for example in an abusive relationship. In such a case it may be difficult to identify specific sexual encounters as non-consensual, and yet the victim is left with little or no control over whether and on what terms they engage in sexual activity. This conceptualisation builds on Evan Stark’s theory of coercive control, and is grounded in survivor accounts of the lived experience of sexual violation within ongoing relationships drawn from existing studies of abusive relationships, my own empirical interview data, and case law. The article contends that the limitations of law and policy responses to sexual violation within relationships can be partly explained by the illegibility of chronic sexual violation within a legal framework premised on the notion that a crime is a discrete incident. The concept of chronic sexual violation offers a way forward for crafting legal responses to this specific and pervasive form of harm, while resisting hierarchical constructions of sexual violation within intimate relationships as less serious than ‘real rape’.

scholarly journals Learning from Lived Experience: Australia’s Legal Response to Forced Marriage

2021 ◽  
Vol 44 (4) ◽  
Author(s):  
Frances Simmons ◽  
Grace Wong
Keyword(s):  
Lived Experience ◽  
Forced Marriage ◽  
Marriage And Family ◽  
Policy Responses ◽  
Legal Response ◽  
Complex Processes ◽  
Law And Policy ◽  
Legal Responses ◽  
Legal Concepts ◽  
And Control

Since the criminalisation of forced marriage in Australia in 2013, the number of cases reported to Australian authorities has risen sharply. This article draws on a qualitative study with eight survivors of forced marriage in Australia to explore survivors understanding of the legal concepts of forced marriage and family violence; experiences of coercion and control in the lead up to, and within, a forced marriage; the obstacles survivors encountered when they sought help; their reflections on justice and the limitations of legal responses to forced marriage; and how survivors can shape law and policy reform. The findings of this study underline the need to reframe Australia’s response to forced marriage to address the complex processes of coercion and control which lead to forced marriage and to create meaningful opportunities for survivors to shape the design, implementation and evaluation of legal and policy responses to forced marriage.

Tangling the web of legal parenthood: legal responses to the use of known donors in lesbian parenting arrangements

Legal Studies ◽  
2013 ◽  
Vol 33 (3) ◽  
pp. 355-381 ◽  
Author(s):  
Leanne Smith
Keyword(s):  
Assisted Reproduction ◽  
Case Law ◽  
Legal Framework ◽  
Lesbian Parents ◽  
Advantages And Disadvantages ◽  
Strong Case ◽  
Legal Responses ◽  
Lesbian Parenting ◽  
Recent Developments ◽  
The Web

This paper explores cases involving disputes between lesbian parents and known donors with whom informal insemination arrangements were made. It observes that the current legal framework for recognising parents following assisted reproduction is incapable of dealing adequately with known donors, notwithstanding a host of recent developments in the law relating to lesbian parenting. As a result, the case-law exhibits judicial uncertainty and inconsistency about the extent of the recognition to which known donors should be entitled. In spite of the difficulties posed by using known donors, the paper argues that there is a strong case for finding an appropriate way of accommodating them within the legal framework for recognising parents. It explores some of the possible legal responses and highlights their potential advantages and disadvantages from theoretical and practical perspectives.

scholarly journals The Relevance of Technology Neutrality to the Design of Laws to Criminalise Cyberbullying

2018 ◽  
Vol 1 (2) ◽  
pp. 14
Author(s):  
Niloufer Selvadurai
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Criminal Code ◽  
Legal Issue ◽  
Law And Policy ◽  
Widespread Agreement ◽  
Health Initiatives ◽  
The Creation ◽  
Laws And Policies ◽  
Scholarly Discourse

Despite there being widespread agreement that cyberbullying is a serious societal problem, there is little consensus on the laws and policies that should be implemented by government to address this issue. Whilst some commentators frame cyberbullying as a psychosocial problem that is most appropriately addressed through education and public health initiatives others see it as a legal issue that requires legislative reform. Further, whilst some call for the creation of a specific offence of cyberbullying others advance the importance of technology neutrality and recommend prosecuting online and offline bullying behaviour within a single coherent legal framework. In such a context, the purpose of the present article is to examine the adequacy of Australia’s present law and policy on cyberbullying, and consider the merits of creating a dedicated offence of cyberbullying. In this regard, special consideration will be given to the 2018 report of the Senate Legal and Constitutional Affairs References Committee entitled Adequacy of existing offences in the Commonwealth Criminal Code and of State and Territory criminal laws to capture cyberbullying. After considering relevant legislation, case law, scholarly discourse and reform discourse, the paper supports the Senate Committee’s decision to not recommend the creation of a new offence of cyberbullying and suggests that such a course supports technology neutrality and enhances the consistency and longevity of laws in this area.

scholarly journals Free movement of workers in the EU and occupational pensions

2017 ◽  
Vol 19 (2) ◽  
pp. 141-157 ◽  
Author(s):  
Marion Del Sol ◽  
Marco Rocca
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Free Movement ◽  
The European Union ◽  
Occupational Pensions ◽  
Minimum Standards ◽  
Court Of Justice ◽  
Free Movement Of Workers ◽  
The Eu ◽  
Cross National

The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.

Moving towards Complicity as a Criterion of Attribution of Private Conducts: Imputation to States of Corporate Abuses in the US Case Law

2011 ◽  
Vol 24 (4) ◽  
pp. 989-1007
Author(s):  
DANIELE AMOROSO
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Legal Framework ◽  
Human Rights Violations ◽  
State Involvement ◽  
The Us ◽  
Terrorist Groups ◽  
Traditional Paradigm ◽  
Corporate Liability ◽  
Private Wrongs

AbstractAccording to the agency paradigm enshrined by the 2001 ILC Articles on State Responsibility, private conducts are attributed to a state when they are carried out on the state's behalf or under its tight control. On closer look, this legal framework proves to be unable to deal with state involvement in human-rights violations perpetrated by powerful non-state actors, such as terrorist groups or transnational corporations. These wrongs, indeed, are often put in place with the fundamental contribution of – but not on behalf of (or under the control of) – a state, with the consequence that, under the traditional paradigm, they could not be attributed to the latter. Against this backdrop, the present paper argues that a new secondary norm has been developing that provides that private wrongs are to be imputed to a state if the latter knowingly facilitated (or otherwise co-operated in) their commission. Although international practice will be duly taken into account, the analysis will be focused mainly on US case law concerning corporate liability for international human-rights violations.

The law applicable to third-party effects of assignment and the conflict rules for insolvency according to EU law

2019 ◽  
Vol 24 (4) ◽  
pp. 664-684
Author(s):  
Christian Heinze ◽  
Cara Warmuth
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Third Party ◽  
Legislative Process ◽  
Insolvency Law ◽  
Ongoing Debate ◽  
Good Opportunity ◽  
Insolvency Regulation ◽  
The Law ◽  
The Eu

Abstract In March 2018, the European Commission issued its proposal for a regulation on the law applicable to third-party effects of assignments of claims, aiming to put an end to the ongoing debate on this issue and the legal uncertainty associated with it. On the basis of the Commission’s decision in favour of the application of the law of the assignor’s habitual residence, this article discusses the consequences of the Proposal under European Union (EU) insolvency law. For that purpose, the coherence of the Proposal with the Insolvency Regulation will be examined, first in general and then in more detail. The analysis comes to the result that the Commission’s objective of aligning the Proposal with the legal framework of the Insolvency Regulation has predominantly been well achieved. The authors point out remaining minor inaccuracies that may be clarified in the further legislative process or by later case law. It is concluded that, from the perspective of international insolvency law, the proposed uniform conflict-of-laws rule at the EU level offers a good opportunity to promote legal certainty with regard to cross-border assignments of claims in the future.

scholarly journals The Evolution of Classical Evaluation Standards in Competition Law: The Legal Assessment of Tying in View of Challenges Raised by Digital Markets

2021 ◽  
pp. 113-139
Author(s):  
Mateusz Musielak
Keyword(s):  
Technological Development ◽  
Competition Law ◽  
Case Law ◽  
Legal Framework ◽  
Evaluation Standards ◽  
Dominant Position ◽  
Legal Assessment ◽  
Customer Group ◽  
Type Of Abuse ◽  
Modern Tool

This paper provides a detailed review of evaluation standards for the legal assessment of tying. This practice, which constitutes an abuse of a dominant position, is a significant breach of competition law. The mechanism of this type of abuse is based on taking advantage of market power in the supply of one product to create packed offerings capable of precluding competition from superior rival solutions. Tying occurs when one product, the “tying product”, is sold only with another product, the “tied product”. In the prevailing number of cases, tying serves to consolidate the company’s dominant position on the tied product market, which usually aims to share the tying product’s large customer group with the less-desired product. However, tying is not illegal per se. In many cases, it does not lead to any anti-competitive concerns, and might be beneficial for consumers. This is why each assessment of this conduct must be carefully evaluated with special attention given to the effects, in accordance with the generally applied effect-based approach, and also potential efficiencies. An analysis of the case-law and literature reveals the basic mechanisms for conducting a legal assessment of tying. However, the use of these mechanisms will not be possible without their adaptation to the ongoing changes caused by technological development. Digital markets not only generate incremental revenues, but are also the sources of new or unusual legal arrangements. It will more frequently be the case that existing provisions will not be able to address every new practice accurately without new acts. The Digital Markets Act aims to adapt the existing legal framework to contemporary market realities and to become a modern tool for enforcing competition law rules on digital markets. The European Commission is seeking to broaden its powers to intervene at the earliest possible stage, before an undertaking affects the competition on a market.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

scholarly journals MENTAL HEALTH ISSUES AT WORKPLACE: AN OVERVIEW OF LAW AND POLICY IN MALAYSIA AND UNITED KINGDOM (UK)

2020 ◽  
Vol 5 (21) ◽  
pp. 316-329
Author(s):  
Ruzita Azmi ◽  
Siti Nur Samawati Ahmad ◽  
Bidayatul Akmal Mustafa Kamil
Keyword(s):  
Mental Health ◽  
Mental Health Problems ◽  
Comparative Method ◽  
Developed Countries ◽  
Legal Framework ◽  
Health Problems ◽  
Comparative Approach ◽  
Research Approach ◽  
Law And Policy ◽  
The Uk

Surveys showed that workers in Malaysia are at high risk of health problems including mental health problems that stemmed from the rising stress level at work. Despite having employees’ safety, health, and welfare being codified, depression will be a major mental health illness among Malaysian by 2020. The Occupational Safety and Health Act 1994 (OSHA 1994) that caters to legislative framework in terms of securing safety, health, and welfare among Malaysian workforces has no provisions to provide a supportive environment for mental health wellbeing at the workplace as well as support for employees with a mental health problem. Furthermore, OSHA 1994 is self-regulated, causing fewer employers to develop OSH codes of practice and guidelines. This is among the weaknesses of OSHA 1994. This paper aims to examine the existing law and policy in Malaysia on mental health at the workplace. It also aims to compare the policy and legal framework in developed commonwealth countries such as the UK. This paper applies qualitative and comparative methods, consisting of a doctrinal legal research approach to understand the principles of law and policies dealing with mental health. A comparative method is employed in order to compare the policies and legal frameworks of mental health wellbeing in developed countries such as the UK. The comparative approach involves an examination of the similarities and dissimilarities between situations within the same legal system. The paper concludes that in order to support mental health and wellbeing at the workplace, a comprehensive legal framework and effective policy are needed especially for Malaysia. Compared with the UK, Malaysia is still lagged behind and has so much to learn from UK’s experiences to tackle issues on mental health.

scholarly journals In the name of the public: Representatives of collective and wider interest of the public in administrative matters in Serbia

Pravni zapisi ◽  
2020 ◽  
Vol 11 (2) ◽  
pp. 504-531
Author(s):  
Jelena Jerinić
Keyword(s):  
Public Interest ◽  
Case Law ◽  
Legal Framework ◽  
Interested Party ◽  
The Public ◽  
Administrative Procedure ◽  
Active Approach ◽  
Legal Provisions ◽  
Direct Indication ◽  
Administrative Procedures

Serbian Law on General Administrative Procedure (LGAP) opened a possibility for broadening the standing in administrative procedures and administrative disputes, by inclusion of subjects representing collective interests and interest of the wider public - primarily, citizen associations and similar organizations. However, by failing to regulate a series of concrete issues, the Law places the administration and the Administrative Court before a challenge, demanding from them an extensive interpretation of not only LGAP's provisions, but other legislation already recognizing such organizations as AIDS in realization of the public interest. The author analyzes relevant legislation, as well as available administrative and court caselaw in search of these answers. The lack of explicit legal provisions could be balanced by a creative approach in practice, especially by the Administrative Court. Having in mind comparative solutions, the question arises whether it is necessary to regulate this category of potential parties separately or to link it more explicitly to the already existing notion of an interested party. Instead, completely new notions have been introduced - collective interests and the wider interests of the public - which are not or not consistently defined in Serbian law. The current, not so voluminous case law, shows that the administrative bodies need a more direct indication of the rules, i.e. a more explicit definitions of these terms. However, despite the restrictive legal framework, administrative bodies should be open to understanding the specific circumstances, i.e. the motivation that an organization has when it seeks standing. In the normative sphere, one of the solutions could be to envisage the analogous application of LGAP's provisions on the interested party. Other solutions could be sought in explicitly mentioning them in the provisions on right to appeal. The current formulations of LGAP do not provide sufficient guidance to the administration and an extensive interpretation would be a great challenge for them. An active approach of the Administrative Court could show the way for the administration toward and effective application of these provisions of LGAP.

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