Rape complainants on trial: Defence questioning approaches and witness emotionality

Mapping Intimacies ◽

10.26686/wgtn.17008450.v1 ◽

2021 ◽

Author(s):

◽

Lauren Patricia McManamon

Keyword(s):

Sexual Offending ◽

District Court ◽

In Series ◽

Justice Process ◽

Criminal Justice Process ◽

Education And Awareness ◽

Awareness Raising ◽

Defence Counsel ◽

The Cross ◽

Insight Into

Sexual offending has always been a crime that is difficult to prosecute. Despite efforts to reform the criminal justice process, prosecuting sexual offending remains problematic (McDonald & Souness, 2011). In particular, the trial process has a reportedly traumatising effect on complainants, and this dissuades others from going to court. This issue is exacerbated in cases where the perpetrator and victim are acquainted. Compared to unknown perpetrators, there is more of a perceived possibility that the complainant consented. This puts her testimony under heightened scrutiny and makes her credibility all the more salient to the trial. Cross-examination therefore becomes an important point in the trial. However it is also identified as the point in the process where the complainant becomes retraumatised. While there is a consensus that the cross-examination is traumatic, no studies have analysed how trauma unfolds in the courtroom. This research offers some insight into aspects of cross-examination that distress complainants and potentially inhibit the prosecution of sexual offending. It uses three New Zealand District Court cross-examinations where the perpetrator is an ex-partner. The study firstly presents findings on how defence counsel construct questions and what information they house within them. It finds that defence counsel predominantly ask questions that request confirmation. These questions were used in series to construct inconsistencies in the complainant’s testimony. They were also used to mount challenges and accusations. Furthermore this study makes preliminary observations that defence counsel questions house prejudicial stereotypes about rape. Such questions misrepresent the reality of sexual offending and serve to undermine the complainant’s credibility. Secondly, the study presents preliminary findings from two cases in which the defence reissued questions in pursuit of a particular response. This occurred where the complainant resisted answering on the terms of the question. The defence treated this as inadequate and subsequently reissued the question. When defence pursued responses in this way, complainants displayed signs of emotionality in the courtroom. It was also found that after continual resistance in two cases the defence concluded the line of questioning with a three-part list. The list challenged the complainant’s credibility. This study makes preliminary observations that complainants display emotion when the counsel tells them their answers are inadequate and reissue questions repeatedly. Initial insight is offered into how defence counsel conduct the cross-examination and how it impacts the prosecution of sexual offending. This study also recommends improved education and awareness-raising for justice sector professionals to address complainant trauma and rape myths in cross-examination.

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Rape complainants on trial: Defence questioning approaches and witness emotionality

10.26686/wgtn.17008450 ◽

2021 ◽

Author(s):

◽

Lauren Patricia McManamon

Keyword(s):

Sexual Offending ◽

District Court ◽

In Series ◽

Justice Process ◽

Criminal Justice Process ◽

Education And Awareness ◽

Awareness Raising ◽

Defence Counsel ◽

The Cross ◽

Insight Into

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Sex Offender Registration: Implications and Difficulties for Ireland

Irish Journal of Sociology ◽

10.1177/079160350001000104 ◽

2000 ◽

Vol 10 (1) ◽

pp. 75-102 ◽

Cited By ~ 1

Author(s):

Anne-Marie McAlinden

Keyword(s):

Sex Offenders ◽

Sexual Offenders ◽

Sex Offender ◽

Sexual Offending ◽

Social Constructionist ◽

Sex Offender Registration ◽

Socially Constructed ◽

Justice Process ◽

Criminal Justice Process ◽

The Media

This paper explores the implications and difficulties of a system of sex offender registration for the two jurisdictions of Ireland. From the orthodox perspective, registration appears justified. Sexual offending has increase and this is used by the media to generate a ‘moral panic’. However, in terms of Blumer's (1971) developmental perspective, sexual offenders in the community have been socially constructed in Ireland, as a problem requiring specific action. This perspective most adequately explains the formulation of legislation. Arguments expounded in favour of registration include the supposedly high recidivism among sex offenders, the inadequacy of supervision provisions and the resulting need to ‘track’ the offender for public protection. Yet a plethora of obstacles which were not considered at the time the legislation was being formulated, such as cost and inadequate policing resources, may impede its effectiveness in aiding law enforcement and reduce it to symbolic significance only. Given these difficulties, I argue that registration is not an appropriate response to the problem of released sexual offenders in Ireland. Rather, from the social constructionist perspective, I suggest that it is better to ‘treat’ the sex offender through less formal and stringent means in the community, away from the criminal justice process.

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Challenges of Effective Communication in the Criminal Justice Process: Findings from Interviews with Victims of Sexual Offences in Australia

Laws ◽

10.3390/laws9040031 ◽

2020 ◽

Vol 9 (4) ◽

pp. 31

Author(s):

Rhiannon Davies ◽

Lorana Bartels

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Justice System ◽

Sexual Offending ◽

Qualitative Interviews ◽

Effective Communication ◽

Skills Training ◽

Sexual Offences ◽

Justice Process ◽

Criminal Justice Process

This article focuses on gendered experiences of the criminal justice system, specifically the experiences of adult female victims of sexual offending and the communication difficulties they experience during the criminal justice process. Drawing on the findings from qualitative interviews about sentencing with six victims and 15 justice professionals in Australia, we compare the lived experiences of the victims with the perceptions of the justice professionals who work with them, revealing a significant gap between the information justice professionals believe they are providing and the information victims recall receiving. We then analyse the international literature to distil effective communication strategies, with the goal of improving victims’ experiences of the criminal justice system as a whole. Specifically, we recommend verbal communication skills training for justice professionals who work with victims of crime and the development of visual flowcharts to help victims better understand the criminal justice process. We also recommend that Australian victims’ rights regimes be reformed to place the responsibility for providing information about the criminal process on the relevant justice agencies, rather than requiring the victim to seek this information, and suggest piloting automated notification systems to help agencies fulfil their obligations to provide victims with such information.

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Rape Myths and the Use of Expert Psychological Evidence

Victoria University of Wellington Law Review ◽

10.26686/vuwlr.v45i3.4949 ◽

2014 ◽

Vol 45 (3) ◽

pp. 471 ◽

Cited By ~ 1

Author(s):

Holly Hill

Keyword(s):

Criminal Justice ◽

Sexual Offending ◽

Rape Myths ◽

Acquaintance Rape ◽

Guilty Verdict ◽

Psychological Evidence ◽

Justice Process ◽

Criminal Justice Process ◽

Juror Education ◽

Common Misconceptions

There are many common misconceptions about sexual violence and the way that victims "should" behave during and after the offending. In trials for sexual offending these "rape myths" can impact on jurors' assessments of a complainant's credibility, rendering a guilty verdict less likely.This article discusses how the use of counter-intuitive expert opinion evidence as a method of juror education in trials for sexual offending can address these prejudices to improve the operation of the criminal justice process. The article also identifies the limitations of such evidence in particular cases of acquaintance rape, and foreshadows whether such evidence will continue to be offered in the future.

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Penerapan Diversi melalui Pendekatan Keadilan Restoratif (Restorative Justice) pada Anak Pelaku Penyalahgunaan Narkotika

Jurnal Preferensi Hukum ◽

10.22225/jph.2.1.3068.202-206 ◽

2021 ◽

Vol 2 (1) ◽

pp. 202-206

Author(s):

Putu Ayu Sarina Selsa Oktaviani ◽

Anak Agung Sagung Laksmi Dewi ◽

I Nyoman Gede Sugiartha

Keyword(s):

Criminal Justice ◽

Criminal Justice System ◽

Restorative Justice ◽

Justice System ◽

The Elderly ◽

District Court ◽

Judicial Process ◽

Justice Process ◽

Criminal Justice Process ◽

Narcotic Drugs

This research aims to find out how implementation of the diversion of the perpetrators of the abuse of narcotic drugs by using the method of the approach of restorative justice by involving the perpetrator, the victim, the family of the offender or the victim, community counselors and professionals. The research method used is the normative legal research with approach of legislation, articles as well as the doctrine or the views from experts associated with the diversion and narcotic in children. With regard to the handling of child abuse of narcotic drugs, the problems in this thesis is the arrangement of diversion by law about the criminal justice system of the child and the application of diversion through approach restorative justice in the criminal offence of child perpetrator of abuse of narcotic. The settings regarding diversion here is actually a settling criminal acts with children outside of the criminal justice process. Where the diversion can be carried out against the perpetrator of the crime that the threat of punishment of less than 7 (seven) years and is not a repetition of the crime. Against the application of the abuse of narcotics diversion for children conducted through deliberation in accordance whit the provisions of article 8 of law about the criminal justice system so that children can make a deal with diversion consider the child’s interests, in this case intended to avoid and keep children from the judicial process. In terms of the results of the diversion agreement already agreed upon with the parties where the implementation of the outcome of the diversion agreement would of course also have to be monitored both from the elderly, the environment, and investigators also rehabilitation center to ascertain if the result of the diversion deal was already done by the child and reported to the Chairman of the District Court where the implementation of such diversion is implemented.

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TINJAUAN YURIDIS TERHADAP TINDAK PIDANA PENELANTARAN RUMAH TANGGA DIKAITKAN DENGAN UNDANG-UNDANG NOMOR 23 TAHUN 2004 TENTANG PENGHAPUSAN KEKERASAN DALAM RUMAH TANGGA JUNCTO KOMPILASI HUKUM ISLAM (STUDI KASUS PERKARA NOMOR 205/PID.Sus/2017/PTBdg)

Res Nullius Law Journal ◽

10.34010/rnlj.v3i1.3098 ◽

2021 ◽

Vol 3 (1) ◽

pp. 1-10

Author(s):

Widya Oktaviani H, Musa Darwin Pane

Keyword(s):

Secondary Data ◽

Legal Regulation ◽

District Court ◽

Primary Data ◽

Legal Certainty ◽

Literature Study ◽

Descriptive Research ◽

Library Research ◽

Justice Process ◽

Criminal Justice Process

ABSTRACT This study aims to determine the law enforcement of neglected household defendants who have paid mut'ah and iddah livelihoods so as to identify legal certainty for the defendant. As for the background of this writing because there is no legal regulation concerning living that leads to neglect of the household so that legal certainty has not been created in the case of a crime of neglect of the household. This research is analytical descriptive research, and uses a normative juridical approach. The type of data used is secondary data, the source of the data obtained through literature study, legislation, the decision of the Judge of the Cianjur District Court and the Bandung High Court. Data collection techniques used are primary data in the form of documentation and secondary data which is library research. Based on this research, the results are obtained that, mut'ah and iddah are part of "abandonment" so that it is necessary to reconsider what law should be used as a reference for managing lex specialis derogate legi generalis. Evidence of livelihood payments submitted by the defendant in the trial process is not used as a consideration of judges in deciding cases, so the practice of mut'ah payment of livelihood and iddah livelihood after divorce by the defendant has no effect on the criminal justice process regarding the case of neglect of the household they live in. Key words : Livelihood, Abandonment of Households, Sense of law ABSTRAK Penelitian ini bertujuan untuk mengetahui penegakan hukum terhadap terdakwa penelantaran rumah tangga yang telah membayar nafkah mut’ah dan nafkah iddah sehingga dapat mengidentifikasi kepastian hukum bagi terdakwa. Adapun yang menjadi latar belakang penulisan ini karena belum adanya pengaturan hukum mengenai nafkah yang menjurus kepada penelantaran rumah tangga sehingga belum terciptanya kepastian hukum kasus tindak pidana penelantaran rumah tangga. Penelitian ini merupakan penelitian yang bersifat deskriptif analitis, dan dan menggunakan metode pendekatan yuridis normatif. Lokasi Penelitian ini bertempat di Pengadilan Negeri Cianjur dan Pengadilan Tinggi Bandung. Jenis data yang digunakan adalah data sekunder. Teknik pengumpulan data yang digunakan adalah data primer yang berupa dokumentasi dan data sekunder yang merupakan penelitian kepustakaan. Berdasarkan penelitian ini diperoleh hasil bahwa, mut’ah dan iddah merupakan bagian daripada “nafkah” sehingga perlu dipertimbangkan kembali hukum apa yang harus dijadikan sebagai acuan menurus asa lex specialis derogate legi generalis. Bukti pembayaran nafkah yang diajukan oleh terdakwa dalam proses persidangan tidak dijadikan sebagai pertimbangan hakim dalam memutus perkara, sehingga praktik pembayaran nafkah mut’ah dan nafkah iddah setelah perceraian oleh terdakwa tidak memberikan pengaruh terhadap proses peradilan pidana mengenai kasus penelantaran rumah tangga yang dijalaninya. Kata kunci : Nafkah, Penelantaran Rumah Tangga, Kepastian Hukum

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Female Sex Offenders in Ireland: Examining the Response of the Criminal Justice System

Journal of Contemporary Criminal Justice ◽

10.1177/1043986220936116 ◽

2020 ◽

Vol 36 (4) ◽

pp. 539-558

Author(s):

Susan Leahy

Keyword(s):

Criminal Justice ◽

Sex Offenders ◽

Sexual Offending ◽

Female Offenders ◽

Sex Offending ◽

Sexual Offenses ◽

Female Sex ◽

Justice Process ◽

Criminal Justice Process ◽

Laws And Policies

This article focuses on the Irish criminal justice system’s response to female sex offending. As in other jurisdictions, very little attention has been paid to female sexual offending in Ireland. However, sexual offenses involving female offenders are occurring and are increasingly being detected and prosecuted. The article provides an overview of female sex offending in Ireland, offering a discussion of available prevalence statistics and an analysis of Irish cases where women have been convicted of sexual offenses. It is argued that, in light of the fact that women are clearly being convicted of sexual offenses in Ireland, it is timely to question whether current laws and policies on sexual offenses and offenders are equipped to deal with female offenders and what types of reforms are likely to be necessary to effectively respond to this category of sexual offending. The potential for reform is considered with reference to three key stages of the criminal justice process: (a) reporting and detection; (b) prosecution and punishment; and (c) treatment and rehabilitation.

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All Rise for the Interventionist

The Journal of Criminal Law ◽

10.1177/0022018316647870 ◽

2016 ◽

Vol 80 (3) ◽

pp. 201-213 ◽

Cited By ~ 1

Author(s):

Ed Johnston

Keyword(s):

Criminal Justice ◽

Case Management ◽

Criminal Trials ◽

Justice Process ◽

Criminal Justice Process ◽

Defence Counsel ◽

New Form ◽

The Impact ◽

Changing Role

This paper will examine the changing role played by the judiciary in criminal trials. The paper examines the genesis of the adversarial criminal trial that was born out of lifting the prohibition on defence counsel in trials of treason. The paper will chart the rise of judicial passivity as lawyers dominated trials. Finally, the paper examines the rise of the interventionist judiciary in the wake of the Auld Review that launched an attack on the inefficiencies of the modern trial. To tackle the inefficiencies, the Criminal Procedure Rules allowed the judiciary to reassume a role of active case management. The impact an interventionist judiciary has for adversarial criminal justice is examined. The paper finds that a departure from traditional adversarial has occurred; the criminal justice process has shifted to a new form of process, driven by a managerial agenda.

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The Liability of Criminal Law towards a Notary Official in the Crime of Embezzlement at the Denpasar District Court

NOTARIIL Jurnal Kenotariatan ◽

10.22225/jn.v5i2.2572 ◽

2020 ◽

Vol 5 (2) ◽

pp. 107-117

Author(s):

Simon Nahak

Keyword(s):

Criminal Justice ◽

Criminal Law ◽

Criminal Responsibility ◽

Criminal Liability ◽

Economic Factor ◽

External Factors ◽

District Court ◽

Justice Process ◽

Criminal Justice Process ◽

Perpetrators And Victims

This study aims to investigate three issues namely the legal consequences of Criminal Acts against Victims of Misappropriated Crimes by a Notary Officer, the factors cause a Notary Officer to commit a Criminal Act in the Legal District of the Denpasar District Court and the qualifications of criminal acts, responsibilities and formulations Criminal system for the perpetrators of embezzlement by a notary at the Denpasar District Court. The method used is Normative Juridical collaboration method with Empirical Juridical. The techniques of data collection is interview. The results show that criminal law consequences of perpetrators and victims of embezzlement crimes by a notary officer is that the perpetrators must be held accountable for their actions legally, whereas victims who suffer losses due to criminal acts are processed to be given criminal sanctions through the criminal justice process at the Denpasar District Court. Then, factors causing crime that are internal and external factors. There are some external factors, namely residence factor, economic factor, political factor and legal system factor. Furthermore, the forms of embezzlement are included in the forms/qualifications of types of non-violent acts, embezzlement criminal responsibility is an individual criminal liability not a legal entity, the system of punishment against perpetrators of embezzlement is the application of criminal law sanctions through the criminal justice process so that against the crime of embezzlement convicted of committing sanctions in the form of imprisonment and fines.

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TELAAH YURIDIS PENERAPAN SANKSI DI BAWAH MINIMUM KHUSUS PADA PERKARA PIDANA KHUSUS

Jurnal Ius Constituendum ◽

10.26623/jic.v2i2.663 ◽

2017 ◽

Vol 2 (2) ◽

pp. 240

Author(s):

Oheo K. Haris

Keyword(s):

Criminal Code ◽

District Court ◽

Final Decision ◽

Criminal Cases ◽

Minimum Requirement ◽

Criminal Sanctions ◽

Minimum Standards ◽

Design Law ◽

Justice Process ◽

Criminal Justice Process

TELAAH YURIDIS PENERAPAN SANKSI DI BAWAH MINIMUM KHUSUS PADA PERKARA PIDANA KHUSUS Oheo K.HarisThe School of Law, University of Halu Oleo, Kendari, IndonesiaABSTRAK:Penelitian ini dilaksanakan di Pengadilan Negeri di lingkungan Provinsi Daerah Istimewa Yogyakarta yang meliputi Pengadilan Negeri Sleman, kota Yogyakarta dan Bantul. Pengadilan tersebut dipilih dengan pertimbangan terdapat beberapa perkara yang menyangkut tindak pidana khusus. Tujuan penelitian : (1) untuk mengetahui apakah hakim boleh menjatuhkan sanksi di bawah standar minimum khusus pada perkara pidana khusus dan (2) untuk mengetahui apa dasar yuridis pemikiran hakim dalam menjatuhkan sanksi pidana di bawah minimum khusus pada perkara pidana khusus. Untuk mencapai tujuan tersebut, maka penelitian dilaksanakan dengan menggunakan rancangan penelitian hukum. Sampling meliputi subjek sampling yang ditentukan secara purposive. Bahan hukum terdiri dari: bahan hukum primer dan sekunder yang dikumpulkan melalui wawancara dan dokumentasi. Analisis dilakukan secara kualitatif. Hasil penelitian menunjukan : (1) Peranan hakim dalam penerapan sanksi minimum dalam tindak pidana khusus pada proses peradilan pidana sangat besar, yaitu sebagai pemberi putusan akhir, hakim berpedoman pada peraturan perundang-undangan. Dengan demikian, maka penulis berpendapat bahwa hakim tidak boleh menjatuhkan sanksi di bawah standar minimum. Dengan alasan bahwa negara Indonesia menganut Sistem Kontinental yakni hakim (sebagai pedoman pemidanaan) terikat oleh undangundang (aliran konservatif). Hal tersebut, sebagai realisasi asas the binding persuasive of precedent. Selain itu, konteks sanksi minimum yang terdapat dalam rumusan pasal terhadap tindak pidana khusus, secara terang dan jelas, terdapat pernyataan sanksi pidana yang memuat ketentuan maksimal dan minimal, sehingga tidak memerlukan penafsiran lanjutan. (2) Selain mengacu Pasal 103 KUHP dan 284 ayat (1) dan (2) KUHAP, dasar yuridis penerapan sanksi, hakim mengacu pada peraturan perundangundangan tindak pidana khusus yang mengatur ketentuan minimum khusus. Selain kedua pasal di atas, yurisprudensi dapat digunakan sebagai dasar yuridis dalam penjatuhan sanksi, dengan catatan, tetap mengacu ketentuan minimum sekurang-kurangya sama atau di atas minimum.Katakunci : Penerapan Sanksi dan Pidana Khusus THE JURIDIS STUDY OF SANCTION APPLICATIONS UNDER SPECIAL MINIMUMON SPECIAL CREDIT CODES Oheo K.Haris The School of Law, University of Halu Oleo, Kendari, Indonesia This research was carried out in the District Court in the Province of Yogyakarta Special Region covering the District Court of Sleman, the city of Yogyakarta and Bantul. The court was chosen with consideration of several matters involving special crimes. The objectives of the study are: (1) to determine whether a judge may impose sanctions below minimum standards specifically on special criminal cases and (2) to find out what the judicial mind's juridical grounds in imposing criminal sanctions are below a special minimum on special criminal cases. To achieve these objectives, the research was conducted by using the research design law. Sampling includes the subject of sampling which is determined purposively. Legal material consists of: primary and secondary legal materials, they were collected through interviews and documentation. The analysis was done qualitatively. The results of the research show: (1) the judge had a big role in the application of minimum sanction in a special criminal act in the criminal justice process, namely as the final decision maker, the judge is guided by the legislation. Thus, the researcher argues that the judge should not impose sanctions below minimum standards. For that reason, the Indonesian state embraces the Continental System ie the judge (as a guideline of punishment) is bound by the law (conservative school). That is, as the realization of the binding persuasive principle precedent. In addition, the context of minimum sanctions contained in the formulation of the article on specific criminal acts, clearly contain statement of criminal sanctions containing the provisions of the maximum and minimum, so it does not require further interpretation. (2) In addition to referring to Article 103 of the Criminal Code and 284 paragraphs (1) and (2) of the Criminal Procedure Code, the juridical basis for the application of sanctions, judges refer to special criminal law legislation governing special minimum provisions. In addition to the above two chapters, jurisprudence may be used as a juridical basis in the imposition of sanctions, with a note, still referring to the minimum requirement of at least equal to or above the minimum. Keywords: Application of Special Penalties and Crimes

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