scholarly journals Kan et frivilligt samleje være strafbart?

2021 ◽  
Vol 108 (2) ◽  
pp. 343-359
Author(s):  
Clara Juul Holm
Keyword(s):  
Free Will ◽  
Case Law ◽  
Mens Rea ◽  
Legal Context

Abstract:This article examines some conceptual challenges associated with the content and possible demarcation of the notions of consent and voluntariness in recent Danish legislation on rape. It is argued that free will or voluntariness, and the expression thereof, should be seen as occurrences on a spectrum, and that the expression of consent or free will is at least partially necessary if such subjective concepts are to be useful in a legal context. The paper examines some general implications of this for possible  outcomes of case law. Uncertainties include what should be made of the use of the »presumptions« mentioned in the bill. Some implications for the evaluation of a defendant’s mens rea are also touched upon. It is concluded that the Danish court enjoys a margin of discretion that allows it the ability to criminalise instances of intercourse even when they are not necessarily non-voluntary.

12. Claims for international protection

2021 ◽  
pp. 435-495
Author(s):  
Gina Clayton ◽  
Georgina Firth ◽  
Caroline Sawyer ◽  
Rowena Moffatt
Keyword(s):  
Case Law ◽  
Causal Link ◽  
Parallel Process ◽  
Refugee Status ◽  
International Protection ◽  
Refugee Law ◽  
Legal Context ◽  
The Status ◽  
Gender Based ◽  
The Uk

This chapter examines the requirements for refugee status, according to Article 1A of the UN Convention Relating to the Status of Refugees 1951 and the Refugee Qualification Directive EC 2004/83, referred to as the Qualification Directive. This includes case law on the main concepts in refugee law: well-founded fear, persecution, Convention reason, causal link, and internal relocation. There is a focus on the particular problems in gender-based claims. The chapter considers protection for victims of trafficking, who may go through a parallel process to the asylum system. The chapter begins with the legal context of refugee claims in the UK, and then follows the structure of Article 1A of the Refugee Convention.

Conditional intention

Legal Studies ◽  
1982 ◽  
Vol 2 (1) ◽  
pp. 77-97 ◽  
Author(s):  
Kenneth Campbell
Keyword(s):  
Criminal Law ◽  
General Problem ◽  
Case Law ◽  
Mens Rea ◽  
The Law

In this article I wish to deal with a problem about the analysis of intention in criminal law. The issue I want to take up has arisen primarily in the context of theft and theft-related offences. However, there is no reason to suppose that it is a problem confined to theft. It could arise in any area of the criminal law which involves intention as constitutive of mens rea.The general problem can be stated very briefly. How is the law to deal with an accused who intended to perform some act which, if performed with simple intention, would be an offence, when he intended to perform that act only if some contingency occurred? The case law on theft demonstrates that, far from being an arcane question, this is a live issue. This is for the simple reason that a great many intentions are intentions of this conditional nature.

scholarly journals Exceptions to the Principle of Free Transmission and Retransmission of Audiovisual Media Content − Recent European Case-Law

2020 ◽  
Vol 9 (1) ◽  
pp. 83-103
Author(s):  
Zsolt Kokoly
Keyword(s):  
European Union ◽  
Case Law ◽  
Legal Framework ◽  
Media Content ◽  
The European Union ◽  
Legal Norms ◽  
Audiovisual Media ◽  
Court Of Justice ◽  
Legal Context ◽  
Media Services

Case-law of the Court of Justice of the European Union, as well as procedures taking place before the Commission aiming to clarify certain aspects regarding freedom of services – in this case, the principle of free transmission and retransmission of audiovisual media services – have always been regarded as particularly important in offering guidance in interpreting and applying European legal norms. The adoption in December 2018 of the revised text of the Audiovisual Media Services Directive (Directive 2018/1808) marks the transition to a new, amended legal framework. It also enables the critical review of the last case decided in front of the Court of Justice of the European Union, still instrumented according to the provisions of Directive 2010/13/EU: Case C‑622/17 (Baltic Media Alliance v. Lietuvos radijo ir televizijos komisija). While the main focus of the present paper lies with Case C‑622/17, for a cogent understanding of the extended judicial and legal context of the case, we will briefly examine the four procedures successfully submitted to the Commission (by Lithuania and Latvia between 2015 and 2018), based on Art. 3 of the AVMSD (restriction based on public policy reasons, in this case incitement to hatred), and the only procedure based on Art. 4 (the “anti-circumvention procedure”) submitted in the lifespan of Directive 2010/13/EU by the Kingdom of Sweden (2017).

scholarly journals Covering in Canada: Potential to Animate Human Rights

2018 ◽  
Vol 4 (2) ◽  
Author(s):  
Ellen M. L. Bolger
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Research Question ◽  
Case Law ◽  
Main Research ◽  
Gender Expression ◽  
Course Of Action ◽  
Legal Context ◽  
Canadian Law ◽  
Place Of Origin

This paper seeks to situate Kenji Yoshino’s thesis from Covering: the hidden assault on our civil rights within the Canadian human rights context. The main research question is whether his thesis is of any practical utility within the Canadian human rights statutory framework – that is if there is room for improvement in the current legislation. After examining the case law, one course of action in the Canadian law context is to protect gender expression to gender identity in jurisdictions that have not already chosen to do so. Instead of only protecting the most blatant covering demands related to gender expression, it would be beneficial to apply the protection of gender expression in a very broad manner. “Covering” as defined by Yoshino is an issue applicable to the Canadian legal context under many different protected grounds of discrimination, such as place of origin and sex.

Criminal Law

2019 ◽  
Author(s):  
Michael Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Case Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Past ◽  
Actus Reus ◽  
The Subject ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Textbook on Criminal Law has been providing students of criminal law with a readable and reliable introduction to the subject for the past 28 years. This is the fifteenth edition, which has been updated to include all of the latest case law and statutory changes. Topics covered include actus reus, mens rea, negligence and strict liability, and capacity and incapacitating conditions. It also examines general defences, parties to crime, inchoate offences, and homicide. Towards the end of the book chapters consider non-fatal offences, sexual offences, offences under the Theft Acts 1968 and 1978, fraud, and criminal damage.

11.5 The analysis Having laid out the chart (and this chart will be left at this point although there is more that can be done), we can see two major problem areas, because the chart is structured to lead to the UP through the PP (that is, the elements of the legal rule concerned). We are able to notice at once where there is strength and where there is not. Looking back at Figure 7.32, it can be seen that there are major queries relating to PP 5. This is the PP concerning intention which in s1(1) is the only element of the mens rea. So, unless more certainty can be achieved in this area there is a problem. In addition, PP 2 has a question mark indicating uncertainty. This is the element of the actus reus requiring the dishonest appropriation but Mary alleges she acted in the certainty that Andrew would have lent her the money: in other words she had his permission. We can see that there are many elements of strength stacking up under PP 2 but a key issue is 14—going into Andrew’s room without permission. So clearly we are interested when we turn to the legal analysis in looking at case law dealing with this issue. Although we have tried to counter the problem with 14 by saying in 18 that Mary was wilful about whether she had permission or not, in the circumstances can we allege this? So we should explore the following matters in the case authorities. (a) Actus reus Re: PP 2 • What is the legal meaning of dishonestly? • Does it include believing that you have permission to take something? • What is the test for a reasonable belief that you have permission? Is it according to what other reasonable people would think (an objective test) or is it according to whatever Mary thought—no matter how unreasonable? (A very subjective test.) • Can we argue she had conditional permission to take £20 for a skirt but she spent the money on something else? Does that matter? If she thought Andrew would give permission for the skirt does it matter that she went to the cinema and got a take away meal instead? (b) Mens rea Re: PP 5 Mary said that she did not intend to permanently deprive Andrew of his money. • However, she said she would pay Andrew back on Monday, yet she clearly would have no money until Thursday. Does this matter? • Does this suggest an intention to permanently deprive? Are there cases covering this? As you can see whilst the chart is excellent at its task (factual analysis) it only highlights the areas for legal analysis. Which is why the charting process leads to legal analysis. This is the moment to look for answers at the level of statutory sources and case law which we will do briefly. We will just make a few explorations to indicate how this matter can be pursued.

2012 ◽  
pp. 258-258
Keyword(s):  
Case Law ◽  
Legal Rule ◽  
Mens Rea ◽  
Legal Analysis ◽  
Subjective Test ◽  
Question Mark ◽  
Actus Reus ◽  
The Moment ◽  
Looking Back ◽  
Legal Meaning

scholarly journals Critical psychology and brain: Rethinking free will in the legal context

2021 ◽  
Author(s):  
Chetan Sinha
Keyword(s):  
Free Will ◽  
Social Life ◽  
Self Regulation ◽  
Critical Psychology ◽  
Public And Private ◽  
The Public ◽  
Legal Context ◽  
Legal Domain ◽  
Conscious Will

The article draws from critical psychology to discuss the rising debate on brain determinism and free will in the legal domain. As free will also corresponds to the context and culture, it can have both the public and private space of expressions. The rise of neuroscience and its influence in the legal domain offers a holistic and sociocultural meaning of responsibility. Even one becomes entitled to take free will as a ‘necessary illusion’ in order to be in the zone of ‘moral as well as legal-social life forming activities’. In the criminal justice system free will is not taken as any kind of necessary illusion but the conscious will and action of the person. This further throw light on how self-regulation directs oneself to the wilful control of illegitimate acts and the role of brain.

Criminal Law

2021 ◽  
Author(s):  
Michael Allen ◽  
Ian Edwards
Keyword(s):  
Criminal Law ◽  
Strict Liability ◽  
Case Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Past ◽  
Actus Reus ◽  
The Subject ◽  
The Law

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Textbook on Criminal Law has been providing students of criminal law with a readable and reliable introduction to the subject for the past 30 years. This is the sixteenth edition, which has been updated to include all of the latest case law and statutory changes. Topics covered include actus reus, mens rea, negligence and strict liability, and capacity and incapacitating conditions. It also examines general defences, parties to crime, inchoate offences, and homicide. Towards the end of the book chapters consider non-fatal offences, sexual offences, offences under the Theft Acts 1968 and 1978, fraud, and criminal damage.

Knowledge

2020 ◽  
pp. 118-161
Author(s):  
Stephen P. Garvey
Keyword(s):  
United States ◽  
Free Will ◽  
District Of Columbia ◽  
The United States ◽  
The State ◽  
Mens Rea ◽  
Heroin Addict ◽  
Court Of Appeals ◽  
Actus Reus

This chapter begins with United States v. Moore, a case from the United States Court of Appeals for the District of Columbia involving a heroin addict charged with drug possession. It describes in more detail what the actus reus and mens rea requirements entail when applied to a defendant who realized he was committing a crime. It discusses, in relation to actus reus, free will as the capacity to choose otherwise, proposes a test to help determine if a defendant lacked the capacity to choose otherwise (the Stephen test), and compares the actus reus requirement to the existing defense of insanity. In relation to mens rea, the chapter explains how the Jekyll test (introduced in Chapter 2) applies to defendants who realized there were committing a crime, and then compares mens rea to the existing defenses of duress and provocation, as well as to the problem of the “willing addict.” It concludes with a discussion of the circumstances under which the state can legitimately ascribe guilt to a defendant who lacked actus reus or mens rea at the time of the crime but whose guilt can nonetheless be traced to a prior guilty act or omission.

Criminal Responsibility for Omissions in ICTY and ICTR Jurisprudence

2018 ◽  
Vol 18 (5) ◽  
pp. 749-787
Author(s):  
Ines Peterson
Keyword(s):  
Present Article ◽  
International Criminal ◽  
Criminal Responsibility ◽  
Case Law ◽  
Former Yugoslavia ◽  
Mens Rea ◽  
International Criminal Tribunals ◽  
The Future ◽  
Intellectual Foundations ◽  
Do So

The present article analyses the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) jurisprudence on omission liability – as a perpetrator or accomplice – for crimes actively committed by others. After explaining how the Tribunals have applied the concept in relation to specific modes of liability, an in-depth assessment of the case law is undertaken with respect to relevant duties to act, the material ability to behave in accordance with such duties, the link between a failure to do so and the commission of crimes, as well as the requisite mens rea. The intellectual foundations of this form of liability remain, to a large extent, unexplored and unexplained in the jurisprudence, which sometimes even appears to treat omissions and actions as equivalent. The article addresses the potentially far-reaching implications of the Tribunals’ findings for the future and explores some of the questions yet unanswered.

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