Criminal Culpability Research Articles

Responsibility of Sexual Violence Under International Law

The extent and nature of sexual violence throughout the war vary. Sexual violence is pervasive in some conflicts, such as ethnic conflicts, but it is relatively rare in other conflicts. Sexual slavery is one form of sexual violence in inevitable conflicts, while detention torture is another. The ICTY has carried out in-depth prosecutions and investigations of cases of sexual violence committed during times of war, leading to the filing of several indictments for crimes perpetrated in Bosnia - Herzegovina as early as 1995. By enabling the litigation of sexual violence as a war crime, crime against humanity, and genocide, the ICTY has advanced international criminal equity in sex crimes. This article attempts to provide readers with a clear understanding of two types of obligations: personal criminal culpability and state responsibility. The responsible for sexual violence presents a significant challenge to international law and misinterprets other laws, according to the conclusion. People are struggling with responsibility because, as the article pointed out, there are two different kinds of accountability in contemporary society: individual accountability and state accountability. The article's conclusions indicate that sexual violence is a personal responsibility.

Too Objective for Culpability?

To help explain in a principled way why criminal law doctrine tends to abstract away from motives and other individualized circumstances, I have defended an insufficient regard theory of criminal culpability that is more objective in certain respects than other views in the same camp. This has led Alec Walen to object that my view is too objective to be an account of culpability and is better understood as a theory of criminal wrongs. This challenge is important not least because it requires getting clearer about what wrongness and culpability are and what roles they play on a legal moralist picture of the criminal law. Here, I argue that Walen’s objection is mistaken. Once we get clearer on what distinguishes wrongness and culpability, it becomes clear that my account is best seen as a theory of culpability. This is so even though it calculates degrees of culpability in a more objective way than other insufficient regard views. Besides just defending my account from Walen’s objection, this paper aims to make a positive contribution by developing a more sophisticated version of the Manifestation Account I proposed earlier. To do this, I focus on the main area of criminal law doctrine where culpability comes apart from wrongness – namely, excuse cases. My earlier Manifestation Account is implausible – or at least limited – because it has nothing distinctive to say about how to determine the culpability of excused misconduct. Accordingly, the theory would be, if not outright false, at best incompatible with the orthodox view in criminal law theory, which takes excuses to accept wrongdoing but deny culpability. To solve this problem and enhance the Manifestation Account’s explanatory value, I show how to extend the theory to account for the culpability of wrongs where a putatively excusing condition is in play. This not only fills a gap in the Manifestation Account but has the further benefit of providing a unified reasons-based account of the main categories of misconduct in the criminal law, which shows what separates criminal wrongness from culpability both in justification cases and excuse cases. The hope is that this effort will shed light on the distinct roles of wrongness and culpability in legal moralist theories of the criminal law and provide a better understanding of degrees of culpability for criminal wrongs – not only when justifications are at issue, but also when excuses are involved.

Comparative Study on the Crime of Ḥirābah According to Imam Abū Ḥanīfah and Imam Syāfi’ī

The crime of robbery (ḥirābah) is one of the crimes punishable by punishment (ḥadd). Some of the criminal provisions of ḥirābah by Imam Abū Ḥanīfah and Imam Syafi'i show differences of opinion that can affect aspects of criminal liability for the crime of ḥirābah. For example, regarding the place of ḥirābah, the legal status of ḥirābah perpetrators consisting of several people who conspired, and the legal status of female ḥirābah perpetrators. To be able to understand the two Imams' thoughts, it is necessary to have an in-depth understanding of how the method of determining the law of the two Imam’s is needed. This kind of investigation is done at libraries. Document studies are used as a method of data gathering in this study, and secondary data sources are used as the basis for analysis. The descriptive-analytic and comparative data analysis approach is applied. The findings of this research include First of all, according to Imam Syafii, the letter aw in Surah Al-Māidah verse 33 is meant for clarifications and specifics (bayān wa tafshil), so that punishment must be meted out in accordance with the deeds of Muḥārib. Imam Abū Ḥanīfah contends that since the letter aw is meant to represent option, judges should have the flexibility to select (takhyir) the most fitting sentence. Second, the criminal culpability component of jarmah ḥirābah may be impacted by the disagreement between Imam Abu Hanfah and Imam Syafi'i. Inadequate responses to this issue may leave gaps in the application of non-discriminatory laws.

Anabolic-androgenic steroids: Considerations for forensic psychiatry, sports psychiatry, and the law

Anabolic-androgenic steroids: Considerations for forensic psychiatry, sports psychiatry, and the law

Using actor maps and AcciMaps for road safety investigations: Development of taxonomies and meta-analyses

The number of road collisions have plateaued over the past decade, both in the UK and worldwide. One problem is that most road safety investigations focus on the immediate, sharp-end factors rather than delving into the deeper, blunt-end, systems factors. It is argued that the contributions of both of these types of factors need to be understood before further reductions in road collisions can be made. The study reported in this paper developed taxonomies for Actor Maps and AcciMaps from 37 road collision investigation reports undertaken in the UK. The meta-analysis of the Actor Maps showed that relatively few categories of actors are associated with the majority of collisions (i.e., 35/256). Similarly, the meta-analysis of the AcciMaps showed that all of the 1656 actions, events and decisions (or lack of) could be placed into 19 categories. Across the eight AcciMap levels there were 11 categories that appeared most frequently. Both of these taxonomies together with the meta-analysis enabled a summary of the analysis and derivation of interventions at a national level. The study also points toward a common contributory (and protective) network for road collisions. The meta-analysis showed that the ‘sharp-end’ accounted for approximately 40% of the factors (those that are normally investigated in collisions) whilst the blunt-end accounted for approximately 60% of the factors. These blunt-end factors are often not addressed in traditional police-led collision investigations, as these investigations typically focus on establishing individual criminal culpability. Any future road collision investigations which aim to identify no blame safety learning should seek to understand blunt end factors as they create the pre-conditions for incidents to occur.

Perlindungan Hukum Bagi Member SJ Travel Pass Terhadap Perjanjian Baku Dalam Program Keanggotaan Khusus Jasa Angkutan Penerbangan (Studi Kasus SJ Travel Pass)

This study examines the validity and legality of the standard agreement in the SJ Travel Pass special membership program on flight transportation services, as well as the legal protection for disadvantaged members. This study uses normative legal research on statutory standards. Using library research, the adopted strategy is both statutory and case-based. Reading, evaluating, characterizing, and analyzing library resources was done to generate relevant papers. This study concludes that the SJ Travel Pass standard agreement will be electronic. The contract is void under Article 1320 of the Civil Code and Law 19 of 2016 amending Law 11 of 2008 on Information and Electronic Transactions because it does not meet the objective requirements of Law 8 of 1999 on Consumer Protection, namely the inclusion of standard clauses prohibited under Article 18 section (1) letters g and f. The contract is void. Consumer protection compels Sriwijaya to compensate customers without criminal culpability or fines. The Indonesian Consumers Foundation has mediated (non-litigious) disputes. Consumers can fight for their rights by applying to the Consumer Dispute Settlement Agency or Arbitration Institution, filing a legal case with the District Court, and/or reporting fraud and embezzlement.

Medicolegal aspects of non-rapid eye movement parasomnias

In a subset of adults with non-rapid eye movement (NREM) parasomnias, clinical variants might be violent in nature and can potentially result in unintentional but considerable harm. As such, there is substantial interest on the forensic ramifications of these sleep behaviours. This review examined the diagnostic criteria for parasomnias established in the context of international classification systems; medicolegal case reports; legal frameworks; and court cases in and outside of Singapore, to provide an overview of the implications of NREM parasomnias. Violent or injurious behaviours that occurred in the context of somnambulism, otherwise known as sleepwalking, have challenged traditional legal theories of criminal culpability. Yet little has changed in the application of sleep science to criminal responsibility. In Singapore, the defence of somnambulism has hitherto not been directly raised. Nonetheless, sleep medicine practitioners may increasingly be requested to render their opinions on legal issues pertaining to violent or injurious behaviours allegedly arising during sleep. Although the understanding of NREM parasomnias has improved, there is still a dearth of evidence to support both medical and legal decisions in this area. NREM parasomnias come with disquieting legal and forensic implications for adjudicating criminal responsibility. There is a need to critically examine legal perspectives on behaviours occurring during sleep. More reliable empirical studies investigating the pathophysiology of NREM parasomnias can offer clearer diagnostic guidelines and address complex behaviours of NREM that often come with medicolegal implications.

Victims or vanguards of terror: Use of girls as suicide bombers by Boko Haram

Boko Haram gained international notoriety as a terrorist group in 2014 with the abduction of more than 200 students in Chibok, North-Eastern Nigeria. This group has perfected a system of using young girls as tools of terror and considering the devastating effectiveness of Boko Haram’s strategy of feminisation of terror, there is a wide negative perception about the complicity of these young girls in terrorism. Using criminal culpability as a framework of analysis, the paper undertakes a review of the strategies of Boko Haram, reviewing public perception of young female suicide bombers in Nigeria and the operational response of the security services to the roles of these girls in terrorism. It also evaluates the adequacy, or otherwise, of Nigeria’s counter-terrorism strategy from a human rights-based perspective as it relates to the gender-sensitive handling of potential suicide bombers. It further examines the legal culpability of these girls in light of Nigeria’s criminal law regime and international and regional human rights frameworks. The paper finds that the girls are largely victims of Islamic fundamentalism and the failures of the Nigerian state.

International Finance, Accounting and Business Corporate

This article explains how to avoid business scandals, fraud, and the organization's potential civil and criminal culpability. It is a corporate positive governance image that improves a company's reputation and makes it much better for investors, customers, and suppliers.

Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

In Ignorance of Law, Doug Husak defends a version of legal moralism on which ‘we should recognize a presumption that the criminal law should…be based, on conform to, or mirror critical morality’. Here I explore whether substantive criminal law rules should directly mirror not moral blameworthiness, but a distinct legal notion of criminal culpability – akin to moral blameworthiness but refined for deployment in legal systems. Contra Husak, I argue that the criminal law departing from the moral ideal embodied in the standard of moral blameworthiness is not always to be regretted. After showing how criminal culpability might come apart from moral blameworthiness, I argue that my alternative to Husak’s view has practically interesting upshots. In particular, it allows us to resist Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which the standard of moral blameworthiness needn’t similarly embody, and this calls into question Husak’s argument for the claim that normative ignorance exculpates.

Diminished culpability in fetal alcohol spectrum disorders (FASD).

There is a biological basis for diminished criminal responsibility in offenders with fetal alcohol spectrum disorders (FASD) just as there is in those with intellectual disability. Functional limitations affecting cognition in both neurodevelopmental conditions stem directly from structural brain damage at a gross and molecular level, which usually impairs executive functioning among other cognitive skills. Executive functioning, which includes reasoning and impulse control, is the only neural system in the brain that involves conscious thought. With respect to the law, impaired reasoning or rationality is an aspect of mens rea ("guilty mind"). When rationality is impaired by prenatal alcohol exposure, acts driven by strong emotion and urges can occur, which has obvious implications regarding criminal responsibility. The Atkins decision by the U.S. Supreme Court reflects the rationale that organically based brain dysfunction in executive skills reduces criminal culpability. We argue that people with FASD who have similar brain dysfunction likewise have reduced criminal responsibility.

The Criminalized Victim: Evaluating Public Perceptions of Sex Trafficked Individuals

ABSTRACT Individuals who have been sex trafficked are continuously being targeted for prostitution and other related offenses instead of being recognized for their victimization. This may occur due to a fundamental lack of understanding of the sex-trafficked experience, allowing for misperceptions to form unhindered. Individuals with these misperceptions then go on to form laws and services intended to aid victims, but instead leave them vulnerable and criminalized. This study assessed whether an educational intervention on the experience of a sex-trafficked individual could influence public perceptions of free will doubt and criminal culpability. This study used a non-equivalent groups posttest-only design to administer an article on the sex trafficking experience, including the trauma and coercion a victim faces, or a neutral article on optical illusions, to then assess sex trafficking knowledge, free will doubt, and culpability beliefs. Participants (N = 445) were recruited from the general public through Amazon Mechanical Turk and were reimbursed for their involvement. Results suggest that even when individuals display a basic understanding of the sex trafficking experience, they do not fully comprehend the complexities of how free will can be compromised by trauma and coercion, ultimately affecting perceptions of personal culpability for criminal activity.

Development of brain behavior integration systems related to criminal culpability from childhood to young adulthood: Does it stop at 18 years?

The rate at which the brain develops from conception to adulthood, and how that maturational process relates to brain's product, behavior, has been a major topic for the neurosciences with implications to legal practice, most dramatically in the case of the death penalty. Based partly on neuroscience evidence for protracted maturation of executive brain systems, the US Supreme Court ruled in 2005 that capital punishment is unconstitutional for crimes committed while under the age of 18. Much more data have since been acquired on multiple indices of brain development and behavior, and a question now facing the courts is whether the cutoff age of 18 has a scientific basis or, from the developmental neuroscience evidence, it is arbitrary and in need for re-evaluation. Here I present methods used by neuroscientists to measure parameters of brain development related to complex behavior, and summarize the major findings to date. Since 2005, there have been several large-scale studies revealing multimodal brain parameters related to major domains of behavior. These studies converge to show protracted development of brain tissue and its connectivity, as well as physiologic parameters of resting-state and task-related activity, which underlie the ability of the brain to process and integrate information. The developmental course of these differences does not reach its apex at 18, indeed it continues into the early 20s. I conclude that this 18 and older population, probably up to around age 23, is therefore just as vulnerable to the effects on behavior (especially behavioral control) of the lack of maturation of these brain structures and functions as are 17-year-olds.

The Dichotomy Between Overcriminalization and Underregulation

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the conduct. The question is whether the harms accruing from misconduct and later criminal prosecutions could have been prevented if agency oversight had been stronger. Even if criminal punishment were still necessitated, would prompt agency action have diminished the public harm and likewise decreased the perpetrator’s criminal culpability? Criminalization and regulation, although two distinct systems, can be evaluated from the perspective of their substantive structure—a universe of statutes or regulations; as well as their enforcement procedures—the prosecution of crimes or enforcement of regulatory provisions. The correlation between criminalization and regulation is less noticed, however, as the advocacy tends to land in two camps: 1) those advocating for increased criminalization and regulation; or, 2) those claiming overcriminalization and overregulation. This Article examines the polarized approach to overcriminalization and underregulation from both a substantive and procedural perspective, presenting the need to look holistically at government authority to achieve the maximum societal benefit. Focusing only on the costs and benefits of regulation fails to consider the ramifications to criminal conduct and prosecutions in an overcriminalized world. This Article posits a moderated approach, premised on political economy, that offers a paradigm that could lead to a reduction in our carceral environment, and a reduction in criminal conduct.

Should Criminal Law Mirror Moral Blameworthiness or Criminal Culpability? A Reply to Husak

In Ignorance of Law, Doug Husak defends a version of legal moralism on which “we should recognize a presumption that the criminal law should derive from, be based on, conform to, or mirror critical morality.” He thinks “we should regret…retreats from our ideal and do our best to find ways to avoid them,” even while agreeing “retreat is almost certainly needed.” In this paper, however, I ask whether this claim about regret true across the board. I argue that criminal law departures from the moral ideal need not always be regretted. Instead, I explore whether the substantive rules of the criminal law should mirror not moral blameworthiness, but a distinct legal notion of criminal culpability—akin to moral blameworthiness, but which is cleaned up to be deployed in legal systems. Rather than relegating institutional design considerations to a secondary position reached only after the moral ideal has been mapped, I suggest that they should be built into the criminal law theorist’s inquiry from the outset. This methodological gambit pays practical dividends as well. Distinguishing criminal culpability from moral blameworthiness opens up alternatives to Husak’s central conclusions about the exculpatory force of normative ignorance. There are good reasons for the criminal law to make certain charitable presumptions about citizens as competent agents, which morality needn’t similarly make, and this calls into question a key premise in Husak’s argument for the claim that normative ignorance exculpates. As a result, we would be able to preserve the traditional view that ignorance of law is no excuse at least with respect to core mala in se behaviors.

Obsessive compulsive disorder and obsessive compulsive personality disorder and the criminal law

Obsessive compulsive disorder (OCD) is a mental illness that has penetrated public consciousness. However, the extent to which OCD and obsessive compulsive personality disorder (OCPD) can constitute debilitating conditions that adversely affect most aspects of a person’s functioning and quality of life are not so well known, including as to how they can impair the capacity to give reasoned consideration to conduct options and the consequences of choices. Little scholarship exists about the legal repercussions of OCD and OCPD and, in particular, their potential relevance for both assessments of criminal responsibility and criminal culpability. This article commences to redress that deficit, outlining contemporary clinical knowledge about the disorders that is relevant to the legal context and identifying important judgments by courts in the United Kingdom, Ireland, Canada, Australia, New Zealand and India which have dealt with the potential impact of OCD and OCPD, in particular for decisions at the sentencing phase of criminal proceedings. It calls for better awareness of OCD and OCPD on the part of forensic mental health practitioners, criminal law practitioners and members of the judiciary.

Legal Reasons, Legal Desert, Legal Culpability: Reply to Guerrero, Kelly and Mendlow

This is a reply to Alex Guerrero’s, Erin Kelly’s and Gabe Mendlow’s commentaries on Gideon Yaffe’s The Age of Culpability: Children and the Nature of Criminal Responsibility. The reply focuses on their objections concerning the nature of legal reasons, desert, and the political arrangements that make a difference to criminal culpability.

Children, Political Power, and Punishment

How does age matter to moral responsibility and criminal liability? Almost no one thinks that a 3-year old is morally responsible for what she does. No one would think an 8-year old should be held criminally liable for engaging in illegal criminal action—even for something seriously harmful such as intentionally setting fire to a building or badly harming another child. Something else should happen, certainly, but not criminal prosecution and conviction and State punishment. And that’s true even if we might start to think that the 8-year old can be morally responsible, or at least somewhat morally responsible, for what she does. Disagreement might start to enter in as the age increases. What do we think of a 12-year old? A 15-year old? A 17-year old? Gideon Yaffe’s excellent book, The Age of Culpability, is focused on the question of why children—for these purposes, all people under the chronological age of 18—should be given a break, legally speaking, and why this should be done categorically. Yaffe argues that the fact that no one under 18 is eligible to vote is a key part of the explanation. In this paper, I raise two objections to Yaffe’s account. In particular, I raise several questions about the details of Yaffe’s account regarding what it is to “have a say over the law” and the way in which this makes a difference to criminal culpability.

“Four lives lost”: Criminalization and innocence in the case of the San Antonio Four

In April 2016, the documentary Southwest of Salem: The Story of the San Antonio Four premiered to critical acclaim at the Tribeca Film Festival. The film explores the strange series of events that led to the 15-year wrongful incarceration of four queer Latina women for child sexual abuse during the course of “satanic rituals” in San Antonio, Texas, in 1994. This article unpacks the relationship between Southwest of Salem and the cases levied against the women in order to explore the tensions that exist between narratives of innocence, criminal culpability, and the production of intersectional identities. In doing so, it examines the pressures of normalizing discourses on narratives of exoneration, demonstrating how the intersection of queer and Latinx positionalities produced a tragic paradox that required a measure of self-effacement in the name of vindication.

Psychological and Political Contributors to Criminal Culpability: Reply to Brink, Howard and Morse

This is a reply to David Brink, Jeff Howard and Stephen Morse’s commentaries on my book, The Age of Culpability.