Criminal Appeal Research Articles

Alleged rape: An Appeal case

This paper charts the progress of an alleged rape case from first complaint to its conclusion in the Court of Criminal Appeal in England.

Foreword: Perspectives on Arthur Conan Doyle and Evidence

Julian Barnes' novel Arthur & George is based on the true story of Arthur Conan Doyle's involvement in the case of George Edalji, an English solicitor wrongfully convicted of horse maiming in 1903. Conan Doyle successfully employed the methods of his literary creation, Sherlock Holmes, to clear Edalji. That episode raised questions about the adequacy of remedies for wrongful conviction, and was one of the reasons for creation of the English Court of Criminal Appeal. Given the impact that Conan Doyle's Holmes stories had on the development and understanding of scientific evidence, and fact-finding in general, Arthur & George invites us to think about those topics, as well as wrongful convictions and the impact of fiction on the way that we understand evidence. The fascinating contributions presented here result from an invitation to their authors to write on whichever of these themes they pleased.

The Prosecution’s Choice: Admitting a Non-testifying Domestic Violence Victim’s Statements Under Crawford v. Washington

This Comment explores these available options in light of Crawford's holding and reasoning. In Part II this Comment provides an overview of the background of the Confrontation Clause from its development as a constitutional amendment through its application in Ohio v. Roberts and the admissibility of hearsay. Part III examines Crawford and its holding. Part IV discusses the policy concerns leading to the use of police reports and officer testimony in the prosecution of domestic violence cases and the problems that arise in the prosecution of domestic violence cases. Part V examines excited utterance in Texas, the Texas Court of Criminal Appeals's recent opinion defining "testimonial," and how Texas courts may apply this definition in domestic violence cases. Finally, Part VI discusses the applicability of the forfeiture-by-wrongdoing doctrine.

The Sins of the Media: The Sabc Decision and the Erosion of Free Press Rights

In South African Broadcasting Corporation Ltd v National Director of Public Prosecutions, the Constitutional Court of South Africa dismissed an appeal against a decision of the Supreme Court of Appeal (SCA) denying the national public broadcaster the opportunity to record and broadcast proceedings of a five-day criminal appeal. The majority of the Court held that the SCA’s exercise of discretion (including the formulation of a legal test) could only be interfered with if it was a ‘demonstrable blunder.’ Not only did the majority fail to appreciate that, for sound constitutional reasons, no deference ought to be due to the SCA’s decision, it granted more than the usual deference by making use of a novel ‘demonstrable blunder’ standard. Though some of the possible reasons underlying the majority’s use of this new form of appellate review (including a fear that full media access might trivialise the court processes) may have been understandable, such reasons were either legally irrelevant or untenable. The SABC decision is part of a trend whereby the courts and the legislature, often dismayed by incidents of apparent unprofessional conduct by the media, have progressively eroded the constitutional right to a free press. This disquieting trend is based on a misunderstanding of the role of a free press in a constitutional democracy and could ultimately serve to exacerbate any lack of adequate press coverage of the government and the judiciary. Nevertheless, a proper understanding of the ‘open justice principle,’ recognised by the Constitutional Court in SABC as a constitutional imperative, represents a potential solution to the observed diminution of free press rights.

THE PRESUMPTION OF INNOCENCE: MATERIAL OR PROBATORY?

In all cases of penal procedure, the declared supposition is, that the party accused is innocent; and for this supposition, mighty is the laud bestowed upon one another by judges and law-writers. This supposition is at once contrary to fact, and belied by their own practice…. The defendant is not in fact treated as if he were innocent, and it would be absurd to deal by him as if he were. The state he is in is a dubious one, betwixt non-delinquency and delinquency: supposing him non-delinquent, the[n] immediately should that procedure against him drop; everything that follows is oppression and injustice.—Jeremy BenthamJEREMY BENTHAM, PRINCIPLES OF JUDICIAL PROCEDURE 169 (1829).If the presumption of innocence is not sacred in our system then what is to become of us?—Judge Reta Strubhar (Oklahoma Court of Criminal Appeals)Flores v. Oklahoma, 1995 OK CR 31 (Okla. Crim. App. 1995).

Legal Culture and Community on the Great Plains: State of Nebraska v. John Burley

State of Nebraska v. John Burley was the first criminal trial in Lincoln County, Nebraska, and the first criminal appeal reviewed by the Nebraska Supreme Court. The legal proceedings surrounding this case indicate that the early citizens of nascent Great Plains communities shared an understanding of the law and its institutions that allowed for the immediate implementation of courts, law enforcement, and jails. A shared legal culture derived from New England and Midwestern states enabled new communities to uphold traditions of law and order, even in the “.wild and wooly” climes of the Great Plains frontier.

THE FUTURE OF INSIDER TRADING IN AUSTRALIA: WHAT DID RENE RIVKIN TEACH US?

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[The case of R v. Rivkin</span><span>1 </span><span>is one of the very few Australian cases resulting in a conviction for insider trading, making it a landmark case in this area of the law. This article examines developments in Australian law relating to insider trading in light of this decision of the New South Wales Court of Criminal Appeal. Aspects of the insider trading offence which have been clarified by Rivkin’s case are examined and discussed, as are those which remain contentious or unclear despite the judgment. The essential ele- ments of the insider trading offence are reviewed in this context, particu- larly in light of recent legislative reform and relevant academic commentary. This article also considers the role of the courts in interpret- ing difficult legislative provisions such as the laws regulating insider trad- ing, as well as providing an international perspective by analysing the potential application of key provisions of the legislative regimes of other jurisdictions. Clarification of contentious aspects of insider trading has been much needed, so despite the continuing absence of clarity in relation to some elements of the offence, judicial pronouncement by a higher court on these issues should be viewed as a welcome development to the laws on insider trading.</span><span>] </span></p></div></div></div>

The innocent prisoner and the appellate prosecutor: Some thoughts on post‐conviction prosecutorial ethics after Dretke v. Haley

We typically think of as encompassing a set of obligations for prosecutors during the pretrial and trial stages of a criminal case. In the literature and in rules of professional responsibility much attention is paid to the charging function, contact with unrepresented persons, plea negotiations, discovery, and courtroom decorum. Our concern with prosecutorial ethics at these stages is rooted primarily in due process and fairness to the accused. [W]hile he may strike hard blows, the Supreme Court wrote in Berger v. United States, [a prosecutor] is not at liberty to strike foul ones. (1) Whether it is a recognition that the prosecutor acts as a representative of the sovereign or that he or she possesses extraordinary power over people's lives, we speak about the prosecutor's ethical duties as special (2) or (3) to those of ordinary lawyers. By preventing a prosecutor from litigating unfairly, the aim is to protect a criminal defendant from an unjust or unwarranted conviction. What, then, are the ethical duties of prosecutors after the defendant has had his fair shot at trial, but lost? The literature and standards are surprisingly silent, with rare exception, on the post-conviction ethics of prosecutors. (4) Constraints on the prosecutorial function seem to reach their apex at trial. Why? Are the reasons for or additional ethics for prosecutors non-existent on appeal? Is the vast discretion, present at the pretrial and trial stages and thought by some to justify ethical duties, absent on appeal? As a recent case from Texas illustrates, ethical issues still abound even after a jury returns a verdict of guilty. Nevertheless, the traditional discourse on pre-conviction duties can help us determine how prosecutorial discretion should be exercised after a conviction has been obtained. Dretke v. Haley Michael Wayne Haley stole a calculator from a Wal-Mart in Smith County, Texas, in 1997. (5) For this crime, he was sentenced to serve 16 1/2 years in a penitentiary. During subsequent collateral review proceedings, it was discovered that this sentence was unlawful and that, under Texas law, he should have received no more than 2 years in a jail. To understand how this could happen, one must understand how Texas criminal law deals with recidivist offenders. Ordinarily, a person who steals a run-of-the-mill calculator, worth less than $50, is guilty of no more than a fine-only misdemeanor. (6) If a calculator is worth more than $50, but less than $500, it is a misdemeanor (7) punishable by up to six months in jail? Haley was no ordinary thief in the eyes of Texas law because he had been twice convicted before of theft charges. This elevated his theft charge to a state jail (9) which is punishable by up to two years in a jail. (10) Haley was no ordinary recidivist thief, however. He also had prior felony convictions: delivery of a controlled substance and attempted robbery. In the indictment, the prosecutor alleged that the robbery occurred after the first felony had become final. This was significant because it meant that Haley's theft sentence could be aggravated on account of his being a offender. (11) This elevated his jail felony to a second degree felony, punishable by 2 to 20 years in prison. (12) The problem--which was discovered only after Haley had exhausted his direct appeals--was that he committed his robbery offense three days prior to the date that his conviction for delivery of amphetamine became final. (13) The mistake was missed by the prosecutor, defense attorney, jury, trial judge, and appellate courts. Haley filed a petition for habeas corpus in court, alleging the evidence was legally insufficient to convict him as a habitual offender based on the non-consecutivity of the dates. The Texas Court of Criminal Appeals summarily denied habeas relief. Haley then filed a pro se application for a writ of habeas corpus in federal court. …

Oklahoma court of Criminal Appeals: Osbaldo Torres V. The State of Oklahoma

Osbaldo Torres was tried by jury, convicted of first degree murder and other charges, and received the death penalty in the Oklahoma County District Court, Case No. CF-1993-4302. This Court affirmed Torres's conviction for murder, and the United States Supreme Court denied Torres's petition for certiorari. This Court denied Torres's first Application for Post-Conviction Relief on August 4,1998. Torres's application for federal habeas relief was denied. This Court subsequently denied Torres's second Application for Post-Conviction Relief. Torres's execution date is set for Tuesday, May 18,2004. On April 29,2004, Torres filed a Subsequent Application for Post-Conviction Relief. The State filed a Response on May 11,2004. Briefs were also filed on behalf of amici curiae the Government of the Republic of Mexico and international law experts and former diplomats.

Oklahoma Court of Criminal Appeals: Osbaldo Torres v. the State of Oklahoma

Oklahoma Court of Criminal Appeals: Osbaldo Torres v. the State of Oklahoma

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges’ votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge’s votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge’s ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge’s ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.

Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation

For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.

Who's Responsible for Female Crime? Gender, Deviance, and the Development of Soviet Social Norms in Revolutionary Russia

O n 31 January 1928 the Department of Criminal Appeals (Ugolovnaia kassatsionnaia kollegiia) of the Supreme Court of the Russian Republic (RSFSR) reviewed the case of Aleksandra Vasil'evna Gugina, sentenced by the Nizhny Novgorod regional court for murder under Article 136, Part d, of the RSFSR Criminal Code.' According to the facts of the case, nineteen-year-old Gugina became pregnant by her lover, twenty-two-year-old Pavel Vasil'evich Kiselev. Although Kiselev broke off relations with Gugina when he learned of the pregnancy, in the spring of 1927 he began to meet with her again. Some time in April, Kiselev spoke to Gugina's parents about marrying her, and with their consent Gugina moved in with him. The next day, he took her to Nizhny Novgorod, purportedly to visit his sister, but actually to get her an abortion. The doctor, however, refused to perform the procedure because Gugina was already eight months pregnant.

One Full Bite at the Apple: Defining Competent Counsel in Texas Capital Post-conviction Review

This Comment argues that the Texas Court of Criminal Appeals was correct in refusing to engraft a constitutional standard of effective assistance of counsel to post-conviction habeas corpus review. In reaching the appropriate decision, however, the court failed to provide any guiding standards of competence for appointed capital habeas attorneys. Specifically, the court did not elaborate on either the type or amount of qualifications, experience, or ability necessary for a finding of attorney "competence." The resulting inadequate definition of "competency" for appointed post-conviction counsel in death penalty cases leaves habeas petitioners without a remedy when statutorily mandated, post-conviction review is nullified by grossly deficient, appointed counsel. The solution lies in providing a standard of "competence" through a statutory amendment because the specification of binding attorney qualifications will ensure that capital petitioners receive their "one full bite" at the habeas "apple." Part II of this Comment provides background information on postconviction state habeas corpus review by illustrating the function of habeas writs, outlining Texas's statutory writ provisions, and describing the current crisis in post-conviction representation. Part III analyzes the argument for applying Sixth Amendment effective assistance of counsel to a statutory grant of habeas counsel, explaining that even though the Sixth Amendment does not apply to post-conviction proceedings, petitioners attempt to claim the right to effective assistance under the statutory grant of counsel in article 11.071. Part IV explains how the doctrines of finality and abuse of the writ converge to prohibit application of the constitutional effectiveness standard to post-conviction review. Part V concludes that the appropriate solution to the crisis in post-conviction representation lies in the establishment of qualification standards for the appointment of post-conviction counsel, which the Texas Legislature should provide via an amendment to article 11.071 itself.

Harmless Error and the Rights/Remedies Split

This Article will proceed in three parts. Part I will recount the history of the harmless error doctrine in the United States, comparing and contrasting it to the other constitutional doctrines that separate rights and remedies principally, qualified immunity and non-retroactivity in criminal appeals. This analysis leads to two conclusions. First, none of these doctrines can exert a positive influence on the substance of the law if treated as a threshold question. That is, unless courts look to the merits of constitutional claims first, and only after resolving those claims look to whether the prevailing party would be entitled to a remedy, these doctrines will serve to stagnate constitutional law rather than allow it to grow and develop. Second, although each of these doctrines, if properly applied, has the capacity to influence positively the development of constitutional law, only harmless error has the capacity to permanently sever rights from remedies. Because non-retroactivity and qualified immunity place later claimants in a better position than earlier ones, the likelihood of a remedy being provided to harmed parties increases over time. By contrast, the harmless error inquiry treats each case in a vacuum; later claimants are no better off than are earlier ones, and there is less impetus for government agents to change their behaviors to conform with the law. In Part II, I will point to a concrete example of harmless error's capacity to create a firewall between constitutional rights and remedies. Drawing on a database of nearly 300 California Supreme Court decisions in death penalty cases, I will show that during a ten year period, over ninety percent of death sentences imposed by trial courts were upheld on appeal even though nearly every case was found to have been tainted by constitutional error. This analysis illustrates both how malleable harmless error is in practice and how powerful a tool it can be for a court that wishes to affirm (or reverse) a decision below. Part III will present a modest proposal for reform of harmless error doctrine in the United States. In that Part, I will draw on the conclusions reached earlier to propose two changes in the way the harmless error doctrine is applied. First, harmless error analysis should not be made a threshold question. That is, a court should never defer the merits of a defendant's claim by finding that any error that might have occurred at his trial was harmless. Rather, courts should begin their analysis by considering the merits of the constitutional claims brought by criminal defendants and should rule on the harmlessness of trial errors only once they have found that those errors in fact occurred. Second, and more fundamentally, I will argue that in order to make harmless error function more like qualified immunity and non-retroactivity, its structure must be changed in order to make it more closely resemble those doctrines. To wit, I argue that the doctrine must contain a temporal component if it is to change not only the substance of constitutional law but also the behavior of government agents; the doctrine must put later litigants in a better position vis-a-vis recovery than earlier litigants. The most effective way to do this, I will argue, is to borrow the reasonableness standard from qualified immunity. I will propose that if a prosecutor should have known that her conduct was constitutional error, the government may not seek to benefit from the harmless error rule with regard to that error. It is only if both suggestions are adopted that the desired effect can be achieved. Without the first change, important questions of constitutional law will not be reached; without the second change, there will be little pressure on prosecutors to comply with the law.

Constructing Miscarriages of Justice: Misunderstanding Scientific Evidence in High Profile Criminal Appeals

In recent decades a number of criminal convictions have been reversed on appeal, partially on the basis of problems associated with the use of scientific evidence adduced by the prosecution during the trial. These miscarriage of justice cases have received considerable attention from news media, legal commentators, criminologists and in formal public inquiries. Most responses to these cases have been critical of the scientific evidence originally relied upon at trial. Few commentators have been critical of, or even reflective about, the scientific evidence used to acquit. Generally, their analyses have utilized idealized images of science and scientists. In contrast, by importing the concept of methodological symmetry from science studies, this paper aims to identify and explore the conceptual disparity (or asymmetry) between the assessment of scientific evidence used to convict and the scientific evidence used to acquit. In order to illustrate some of the limits to conventional approaches to miscarriages of justice as well as examine the judicial use of scientific evidence this will be undertaken in relation to the successful appeal of the Birmingham Six.

IT in the Law

Westlaw UK announced content enhancements at the end of October. European content is now updated each afternoon meaning that the Official Journal of the European Communities is now available within 24 hours of publication. Articles from the Scots Law Times from 1997 and case summaries from 2000 are now accessible on Westlaw UK, Westlaw UK Scots Law and Westlaw UK Scots Crime. The Westlaw UK Crime Service now includes Criminal Appeal Reports back to 1967 and The Criminal Appeal Reports (Sentencing) back to 1979. This additional content has been added directly to all Westlaw UK and Westlaw UK Crime practice area services. Finally, ICLR cases are now available on Westlaw UK Civil Procedure adding 7,000 full text law reports, and providing a case archive to complement the Civil Procedure Reports.

Due Process and Dirty Harry Dilemmas: Criminal Appeals and the Human Rights Act

In the Film 'Dirty Harry',' a detective obtains a confession from a suspect through torture, or at least inhuman and degrading treatment. The suspect confesses to where he buried a girl he had kidnapped. Later he is released on the basis that the evidence of his confession, the truth of which is not in doubt (only the kidnapper could have known the location of the girl's body) is inadmissible evidence.2 This is a victory for due process but, for Harry and most of the audience, who expect the suspect to kill again, it is just insane. The situation in Dirty Harry is a stark illustration of the problem facing appeal courts, which have to decide whether a conviction is 'unsafe'.3 As judges and lawyers they accept the need for due process, and that such processes are not justified simply as a means to an end, with that end being to establish the factual guilt of the accused. However, the value identified in due process other than its contribution to truth is elusive.4 Sometimes it is articulated in terms of suspects' rights. At other times it is seen as a general right to fairness, requiring that a person be subjected only to fair procedures and treatment.5 And at its most general level it is associated with the theme of the rule of law. If detectives like Harry can go around torturing suspects then in the general run of cases, if not the particular case in question, we might not only lose truth and fairness, but lose control of the police and prosecuting authorities as well.6 Dirty Harry dilemmas occur when judges at trial are asked to exclude evidence obtained illegally or unfairly,7 and when defendants apply for a stay of proceedings on the basis that the prosecution, taken as a whole, amounts to an abuse of

Flag burning and free speech: the case of Texas v. Johnson

In a free society where it often seems nothing is sacred, many feel that one thing at least should be: that despite constitutional guarantees of free speech, it should be illegal to desecrate the American flag. For most Americans, no symbol is more charged with emotion, and incidents of its abuse have led many to declare that freedom of expression has its limits. When Gregory Lee Johnson burned a flag as part of a political protest, he was convicted for flag desecration under Texas law, but the Texas Court of Criminal Appeals reversed the conviction on First Amendment grounds and the Supreme Court confirmed that physically damaging the flag constituted symbolic-and protected-speech. Robert Justin Goldstein now examines this landmark case and the attendant controversy over whether protection of the flag conflicts with constitutional guarantees of free speech. He also explores the case's ramifications for future legal battles. Goldstein, who has published widely on the flag desecration debate, offers a concise and updated account of the controversy for students and general readers. He traces the history of the flag protection movement from its nineteenth-century origins through the enactment of early state laws, and he examines modern incidents of flag desecration from the Vietnam era to the present. At the heart of the book is the Johnson case and the political firestorm that it ignited. Goldstein examines the legal and philosophical issues surrounding the case through courtroom testimony, oral arguments, and interviews with Johnson, the lawyers (including former Whitewater prosecutor Kenneth Starr and the late famed radical attorney William Kunstler), and the judges who heard the many rounds of appeals. He then takes us inside the Supreme Court to analyze the justices' reasoning that government may not prohibit the expression of an idea simply because society finds it offensive. Finally, he looks at reactions to the decision including recent heated attempts to protect the flag through legislation or constitutional amendment. Goldstein helps us better understand the human emotion and psychological drama that underlie abstract legal and constitutional issues and that fundamental rights sometimes are held by the courts to be superior to majority rule or popular emotion. By demonstrating how competing and often contradictory concepts can be embodied in the very same symbol, he helps us understand the fundamental meanings of democracy and patriotism.

Victims and Villains: Gender Representations,Surveillance and Punishment in the Judicial Discourse on Rape

The thesis, based on the theories of critical discourse analysis, gender studies and feminist legal studies, carries out an investigation of the judicial discourse used in fifty British appeal court decisions on rape cases. This work aims to investigate the discourse of these legal decisions to see how rape is defined, how rape offenders and rape complainants are described and categorized, and what impact the representations of the event ‘rape’ and its main participants have on the appeal decisions. In addition, the thesis also aims to investigate the role played by the discourse of appeal decisions on cases of rape on processes of education, surveillance, control and discipline of male and female social and sexual behaviour. As far as methodology is concerned, this study looks at the lexico-grammatical choices made by the judicial writers to compose their legal decisions. The different lexical depictions of stranger rapists and known rapists will be used here as a sample of my analyses (all the examples were taken from appeals published in the Criminal Appeal Reports (Sweet & Maxwell) between 1987 and 1998). The appeal decisions analysed in this work indicate that, when judging cases seen as ‘serious’ (i.e. usually committed by men who did not know their victims previously), the appellant is cast in the role of ‘real rapist’ either because: (a) he is depicted as a ‘bad’ character (lack of morals, previous convictions, etc.), or (b) he is depicted as almost deranged (a drug addict, a victim of child abuse, a psychologically unstable person). In the corpus these appellants were characterized as ‘hard criminals’ or as ‘psychologically disturbed’ through lexico-grammatical selections such as: the appellant’s record of violent sexual crime was appalling the appellant was a clear danger to the public he constituted a danger to female members of the public he was completely out of control the offender is, and has clearly demonstrated himself to be, a danger to women the offender was under the influence of drugs at the time of the commission of the offences the further evidence of mental instability contained in the psychiatric reports he came from a family who were generally of dull or very dull intellect. He was sexually abused as a child. He was an unwanted child. he had been drinking and smoking cannabis However, men who raped their present or former partners are not described in the same way. In cases of marital rape, the judicial reasoning is that men who force their present or ex-partners to have sex are led neither by an uncontrollable sexuality nor by criminal tendencies, but rather by a mixture of misplaced love, pain, stress and confusion, usually triggered by the breakdown of their relationships. As such, they do not fit into the category of ‘real’ rapists. The sympathetic portrayal of sexually abusive partners in appeal decisions on rape cases is achieved through a selection of naming patterns and descriptions that depict the assailant within a frame of pain and suffering, and which renders the event as something negative but less serious than other cases of rape. Below are some examples: he is a young man; he is sexually immature he had intended to kill himself a man of positive good character the appellant was emotionally ill he had been a good husband he had been upset by the thought that there was another man in his wife’s affection a man of exemplary character he was diagnosed as suffering from a reactive depression with associated anxiety symptoms, secondary to his wife leaving him he was on an emotional roller coaster the man had been gravely distressed both by the separation and the fact that his wife had a new man in her life In short, the analyses indicate that, from the perspective of judicial discourse, serious rape is stranger rape, women of ‘good’ sexual character are ‘true’ victims, and rape is the result of criminal tendencies or mental problems (in the case of stranger rapists), or of desperation caused by the breakdown of the relationship (in the case of marital rapists). This rather flat picture depicts rape as an isolated crime motivated by an uncontrolled sexual drive or emotional despair, disconnected from social issues such as gender violence, domestic violence, gender asymmetry and the high level of social tolerance to the problem of violence against women, and ultimately influences the length of sentences given to sexually abusive men. The categorization systems used by judicial discourse to evaluate rape express value judgements about how men and women behave, and are part of a pedagogical network involving different discourses (e.g. discourses of the family, religion, moral, education, science) which establishes, supervises, punishes and controls forms of behaviour and of identities.