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  1. Conclusion The United States has ratified the Torture and Race Conventions with certain reservations because of the death penalty. However, while the death penalty itself may not constitute a violation of these conventions, specific applications of this punishment may be contrary to the law of these treaties. Punishments which may be unlawful in international law, such as the execution of juveniles, the mentally retarded, and those foreign nationals who were not informed of their consular rights, are not exempted from the Torture Convention. Pain and suffering which are peripheral to lawful punishments, such as the years of isolation on death row and the unnecessary infliction of pain through gratuitously cruel forms of execution, are also banned by the Torture Convention. Finally, the arbitrary and discriminatory use of any punishment is forbidden by both the Race and Torture Conventions. To the extent the death penalty is racially discriminatory, the U.S. is bound to take corrective measures to stop this discrimination. Instead of enacting legislation to prevent racial discrimination, the U.S. has expanded the death penalty to new offenses and reduced the opportunity and resources for appeal. Such actions defy not just the spirit but the letter of these important international treaties.
  2. Another study by Professor Jeffrey Pokorak of St. Mary's University Law School in Texas found that the key decision-makers in death cases around the country are almost exclusively white men. Of the chief District Attorneys in counties using the death penalty in the United States, nearly 98% are white and only 1% are African-American. These new empirical studies underscore a persistent pattern of racial disparities which has appeared throughout the country over the past twenty years. Examinations of the relationship between race and the death penalty, with varying levels of thoroughness and sophistication, have now been conducted in every major death penalty state. In 96% of these reviews, there was a pattern of either race-of-victim or race-of-defendant discrimination, or both. Race is more likely to affect death sentencing than smoking affects the likelihood of dying from heart disease. A most egregious example of this type of racial discrimination was revealed recently in Kentucky. In that state, there have been over 1,000 murders of African-Americans since the death penalty was reinstated. However, not one person on Kentucky's death row was there for the murder of a black person. Death row was exclusively populated by those who murdered a white person. Despite overwhelming evidence of discrimination, the response of the courts has been to deny relief. When the Supreme Court rejected race claims based on statistical evidence, it indicated that the problem might be addressed through legislation. Such remedial legislation, often referred to as the Racial Justice Act, has been offered in both the U.S. Congress and in various states but it has only been passed by one state, Kentucky. Instead, Congress recently enacted severe restrictions on the access of death row inmates to federal courts where race challenges can be brought, and eliminated all federal funding for the legal resource centers which had frequently raised these claims. The human cost of this racial injustice is incalculable. The decisions about who lives and who dies are being made along racial lines by a nearly all white group of prosecutors. The death penalty presents a stark symbol of the effects of racial discrimination. In individual cases, this racism is reflected in ethnic slurs hurled at black defendants by the prosecution and even by the defense. It results in black jurors being systematically barred from service, and the devotion of more resources to white victims of homicide at the expense of black victims. And it results in a death penalty in which blacks are frequently put to death for murdering whites, but whites are almost never executed for murdering blacks. This persistent and pervasive evidence of racial discrimination in the application of the death penalty, coupled with the resistance to corrective legislation, undermines the U.S.'s compliance with the Torture Convention. If blacks are being punished more severely because of their race, or if defendants who kill white victims are executed while those who kill blacks are given life sentences, then the death penalty is an instrument of discrimination and should be stopped. The International Convention on the Elimination of All Forms of Racial Discrimination, which the U.S. has also signed and ratified, is implicated by a discriminatory death penalty, as well. Although the Race Convention does not specifically address capital punishment, it binds all state parties to "condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms. . . ." The Convention further requires states to provide both a remedy and a forum for challenging racial discrimination. This is precisely what a Racial Justice Act would do, but this proposed legislation has been rejected as too potent a threat to the whole death penalty.
  3. Race Considerations As was mentioned above, the Torture Convention forbids the infliction of pain and suffering "based on discrimination of any kind." The death penalty in the United States has a long history of racial discrimination, and is therefore suspect under the Torture Convention. The fact that race played a significant role in the imposition of the death penalty contributed to the United States Supreme Court's finding that the death penalty was being unconstitutionally applied in 1972. Subsequent revision of state laws convinced a majority of the Supreme Court that the arbitrary and capricious quality of capital punishment laws could be remedied and executions were allowed to continue. The problem of racial disparities in the application of the death penalty has not, however, been eliminated. African-Americans are sentenced to death and are executed in far greater numbers than their proportion in the U.S. population as a whole. Those who receive the death penalty have almost exclusively been convicted of committing a crime against a white person. Eighty-three percent of the executions carried out since 1976 have involved the murder of a white victim, even though whites are victims in less than 50 percent of the murders committed in the U.S. When both race of defendant and race of victim figures are examined, the statistics are even more glaring. Since 1976, 117 black defendants have been executed for the murder of a white victim, but only 8 white defendants have been executed for the murder of a black victim. Indeed, in the entire history of the U.S., there have only been approximately 38 whites executed for murdering a black person. In 1990, the U.S. General Accounting Office conducted a review of such studies and concluded that reliable studies showed: "those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks." Supreme Court Justice Harry Blackmun, who voted to uphold the death penalty both in 1972 when it was halted, and in 1976 when it was reinstated, recently concluded that racial discrimination continues to infect the practice of the death penalty: "Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die." Recent studies further confirm the persistent pattern of racial discrimination in the U.S. death penalty. A systematic analysis in Philadelphia by award-winning researchers David Baldus and George Woodworth revealed that the odds of receiving a death sentence are nearly four times (3.9) higher if the defendant is black. These results were obtained after analyzing and controlling for case differences such as the severity of the crime and the background of the defendant.
  4. Methods of Executions In addition to the actual killing of a human being and the years of psychological torment leading up to this act, the methods of execution employed in the U.S. have resulted in the infliction of additional pain. At least 20 executions since 1976 involved mistakes in the process which led to prolonged and painful executions, such as an inmate's head catching fire during an electrocution and the torturous 45-minute search for a suitable vein to carry out a lethal injection. Four states use electrocution for execution with no alternative possible. Outside of the death penalty, the applying of powerful electric currents to the human body would unhesitatingly be called torture. Other states allow the inmates, many of whom are suffering from mental illness, to choose equally grisly forms of execution such as hanging, the firing squad or the gas chamber. At least some of the pain and suffering which these methods cause is gratuitous and could be avoided. To insist on the worst methods of execution, as recently exhibited in Florida, despite evidence of the severe pain inflicted and repeated mistakes in application, is a violation of the Torture Convention and of basic respect for human rights
  5. Pain and Suffering Not Inherent to Death Penalty Although much of what is painful about the death penalty is inextricably linked to the ultimate execution, there is some suffering which is peripheral to executions and hence may constitute a form of torture. The length of time that people spend on death row in the U.S. is quite long and not an essential or an intended part of the punishment. Also, the methods of execution used in some states is gratuitously violent and torturous. Time on Death Row Death row inmates are subjected to years of uncertainty under dismal physical conditions not knowing when they will be executed. Albert Camus noted that "[t]he devastating, degrading fear that is imposed on the condemned for months or years is a punishment more terrible than death." The average time between sentencing and execution in the U.S. is eight and a half years. There are over 3,500 inmates on death row and many have been there for 10 or even 15 years. Every year, many inmates give up legitimate appeals and ask that their executions go forward as quickly as possible. While the delay might seem to favor those who want to avoid their execution, it works against those who have been wrongly convicted or sentenced in that their relief is delayed. Over 35 percent of death sentences are overturned on appeal. The time spent on death row is not inherent to the death penalty. It is the product of a number of factors. To begin with, in many cases incompetent attorneys are assigned to death cases and they frequently make fundamental mistakes in their representation. These cases may result in retrials and considerable delay. Another independent factor is the backlog of cases of all types which appellate judges have to consider. Appeals submitted by defense attorneys or prosecutors sometimes take years before a decision is rendered. Because of the high stakes in a death case, both sides typically appeal every adverse ruling. Only a part of the resultant delay is the responsibility of the defendant. In some cases, the state delays for years before even assigning an attorney to handle a death penalty appeal. The typical wait in California for the appointment of an attorney to just start the appeals process is three to four years. The attention of courts around the world have been drawn to the torment of the prisoner in this situation. In Pratt v. Attorney General of Jamaica, the highest court in the United Kingdom unanimously ruled that a 14-year delay between the trial and execution rendered the pending execution to be "cruel" and "inhumane." The British Privy Council ruled that such an inordinate delay would never have been permitted under English common law and commuted the sentence to life imprisonment. In considering a case involving a 17-year delay in U.S. courts, Justice Stevens of the Supreme Court called for consideration of this "important" issue by intermediate courts and hinted that the issue may become ripe for the Supreme Court in the future.
  6. Foreign Nationals Another area in which the legality of the death penalty has been called into question is the execution of foreign nationals in the U.S. The U.S., along with almost all the other countries of the world, has long been a party to the Vienna Convention on Consular Relations.Article 36 of this Convention requires officials in the U.S. who place foreign nationals under arrest to inform them of their rights to consult with the embassy of their home country. It is clear that this provision, which is binding in all states under U.S. law, has been consistently ignored. There are at least 72 foreign nationals on death row in the U.S. Virtually none of these defendants were informed of their consular rights under the Vienna Convention. Beginning with Carlos Santana from the Dominican Republic, who was executed in Texas in 1993, there have been 8 executions of foreign nationals in the U.S. since the death penalty was reinstated. Given that there are many defendants facing execution who were not informed of their consular rights in violation of both international and U.S. law, what should be the remedy ? This issue reached the highest courts of both the U.S. and the world with the pending execution of Angel Breard in Virginia in April of this year. Breard was a citizen of Paraguay and had come to the U.S. in 1986. He was not informed of his consular rights when arrested for murder in 1992. At trial, he rejected the advice of his appointed American lawyers, refused a plea agreement offered by the state and insisted on testifying in his own defense. On the stand, Breard claimed he was compelled by a satanic curse placed on him by his father-in-law. He was found guilty and sentenced to death in 1993. Paraguay attempted to intervene on his behalf in the appeals process, claiming that if Breard had been given the opportunity to discuss the U.S. legal system with counselors from Paraguay he might have accepted the plea bargain and avoided a death sentence, or at least he might have seen the pitfalls in taking the stand. However, Paraguay's efforts were barred by the Eleventh Amendment to the U.S. Constitution which forbids suits by foreign countries against a state. While this matter was being further appealed, Paraguay filed suit with the International Court of Justice at The Hague. In that forum, Paraguay asked for a ruling to prevent the imminent execution of Breard because of the U.S. violation of the Vienna Convention. The International Court, recognizing that there was not sufficient time before the execution to adequately hear both sides and render a decision, unanimously ruled that the execution should be delayed at least until the Court could fully review the matter. U.S. Secretary of State Madeleine Albright asked the state of Virginia to comply with this injunction by the International Court. The U.S. Supreme Court refused to stay the execution, primarily because it found that Breard had not raised his claim regarding the Vienna Convention in a timely manner. The Court held that this procedural bar not only precluded Breard's individual claim, but also negated any influence of the International Court of Justice. The decision by the highest court in the world was summarily rejected because of U.S. procedural rules designed to speed up executions. Interestingly, while the U.S. Secretary of State was pleading with Governor Gilmore to halt the execution, the U.S. Justice Department was arguing that Virginia would suffer harm if it was not allowed to carry out the "execution in a timely fashion." Breard was executed on April 14, 1998, shortly after the Supreme Court rendered its decision. Outside of those who have volunteered for execution and waived their appeals, Breard's case was one of the fastest to go through the appeals process since the death penalty was reinstated. Even though Breard was executed, the case that Paraguay brought to the World Court continues. An opinion by the World Court that such executions would be illegal would also imply that the U.S. is in violation of the Torture Convention.
  7. A similar argument can be made that the execution of defendants suffering from mental retardation is unlawful in international law and hence is torture when applied to them. The treaties mentioned above are less clear when it comes to execution of the mentally retarded. Persons with mental retardation fall into the bottom two to three percent of the population in intellectual functioning. They are unlikely to achieve a mental age greater than 12 years old. Those who have committed a crime have a diminished capacity to understand right from wrong and the legal consequences of their actions. In this sense, they are comparable to juvenile offenders. If it is wrong to execute those under age 18 at the time of their crime, it would also be wrong to execute someone whose mental age was considerably under 18. The Civil and Political Rights Covenant states that the death penalty should be restricted to the "most serious crimes." The standard of what is most serious includes not only the gruesome facts of the crime, but also the culpability of the person charged. Less than 2 percent of those who commit murder receive the death penalty in the U.S. It seems absurd to maintain that the mentally retarded, who are in the lowest 2 percent in terms of intellectual functioning, are somehow among the highest 2 percent in culpability. Moreover, Article 16 of the Torture Convention requires states to prohibit any official cruel, degrading or inhuman treatment, even if it does not fall under the strict definition of torture. Again, what is degrading or cruel may be in eyes of the beholder, but even in the U.S., 24 states and the federal government do not allow the execution of a mentally retarded defendant. Justice William Brennan, in dissenting from the Supreme Court's decision which permitted such executions, wrote that "the execution of mentally retarded individuals is 'nothing more than the purposeless and needless imposition of pain and suffering . . . .'" Thirty-three defendants with mental retardation have been executed in the U.S. since 1976. There has been some legislative movement towards stopping these executions. When the U.S. Supreme Court in 1989 upheld the constitutionality of the death penalty for those with mental retardation, it did so at a time when only one state forbade this practice. Today, 12 states and the federal government have a specific exemption for those with mental retardation.
  8. Other International Treaties and Juvenile Executions The U.N. Convention on the Rights of the Child also specifically prohibits the use of the death penalty for juvenile offenders. This treaty goes even further and outlaws the sentence of life without possibility of parole for those under 18. Virtually every country in the world has ratified this treaty, except the U.S. The U.S. has signed the treaty, but not ratified it, in part because we foresee the conflict between our practice of executing juveniles and the treaty. Similarly, the U.S. has signed but not ratified the American Convention on Human Rights, which states: "capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age." The major role of these treaties in international law and the near unanimous acceptance of their prohibition regarding juveniles leads to the conclusion that this is no longer a "lawful sanction." In this sense, the U.S. violates the Torture Convention when it executes juvenile offenders because this grave infliction of pain and suffering is not associated with a lawful punishment.
  9. "Lawful Sanctions" Juveniles Although the death penalty is generally tolerated under international law, the same cannot be said of the execution of juvenile offenders. The International Covenant on Civil and Political Rights requires that the death penalty only be imposed "for the most serious crimes," and never upon those who were under 18 years of age at the time of their crime. Virtually all the countries of the world have signed or ratified this important treaty, including most recently, China. However, the United States is the only country with an outstanding reservation to the Article forbidding the execution of juvenile offenders. Only seven other countries in the world are known to have carried out an execution of a juvenile in the last ten years and the U.S. may be the most flagrant violator with 3 more juvenile offenders executed just this year. Since 1976, there have been 12 executions of those who were under 18 at the time of their crime in the U.S., with 9 of the 12 occurring in the 1990s. Seventy-two additional juveniles are on death row awaiting execution. While some states and the federal law set 18 as the minimum age of eligibility for the death penalty, the majority of death penalty states allow 16 or 17 year-olds to receive this ultimate punishment. And some government officials have been calling for a reduction of the minimum age, even to as low as 11. It is because of this history and practice that the U.S. took a specific reservation to the Civil and Political Rights Covenant essentially exempting itself from the ban on juvenile executions. The U.S. has also taken a reservation to the Torture Convention, stating that we understand "international law does not prohibit the death penalty, and does not consider this convention to restrict or prohibit the United States from applying the death penalty consistent with the Fifth, Eighth and/or Fourteenth Amendments to the Constitution . . . ." In other words, what the U.S. considers to be lawful punishment under the Torture Convention is what the U.S. courts, not the world community, consider lawful. Reservations to treaties, including human rights agreements, are generally recognized in international law. However, reservations which contradict the "object and purpose" of the treaty are not allowed. Eleven countries formally protested the U.S.'s reservation to the Civil and Political Rights Convention regarding juvenile offenders, and the U.N. Committee on Human Rights has stated that such a reservation is invalid. The U.S. Senate responded to this challenge by threatening to withhold funds from U.S. participation in the work of the U.N. Committee on Human Rights.
  10. The U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention) was adopted by the General Assembly of the United Nations on December 10, 1984 and ratified by the United States ten years later. In all, 176 countries have either ratified or signed the torture convention. The thrust of this treaty is to forbid physical and psychological abuse of people in detention around the world. Whether the death penalty is implicated in this treaty depends on the definition of torture. Clearly, the U.S. was not about to sign a treaty which, on its face, outlawed capital punishment as a form of torture. But the application of the death penalty in the U.S. in specific instances may well be in violation of this convention. Article 1 of the Torture Convention defines torture, in part, as: any act by which severe pain or suffering . . . is intentionally inflicted on a person . . . by . . . a public official.... The definition warns of some of the impermissible reasons for which torture is frequently inflicted, including coercing a confession, punishment, or for "discrimination of any kind." The definition of torture "does not include pain or suffering arising only from . . . lawful sanctions." There are three parts of this definition that deserve special note: First, there is an exemption for pain or suffering associated with lawful punishments. Thus, imprisonment may produce much pain and suffering like separation from loved ones, deprivation of freedom, etc. However, in so far as imprisonment is lawful, the normal suffering that results is not banned by the Torture Convention. Similarly, since the death penalty may still be considered a "lawful sanction," the considerable pain and suffering which inevitably accompany an execution are not torture under this definition. But, the exempted sanctions have to be lawful in the first place. Secondly, pain or suffering associated with a lawful punishment can be torture if it is not closely connected with that punishment. It must arise from, or be inherent in, or incidental to a lawful sanction. If certain forms of pain and suffering can easily be avoided without eliminating the basic punishment, then it is fair to ask whether that suffering is inextricably entwined with the punishment. Finally, the definition of torture forbids the infliction of pain and suffering based on discrimination of any kind. There is considerable historical and statistical evidence that the death penalty in the United States has been applied in a racially discriminatory way. If that is true, then Article 2 of the Torture Convention requires States to "take effective legislative, administrative, judicial or other measures to prevent acts of torture . . . ." As I will discuss later, this issue is also addressed in a general way by the International Convention on the Elimination of All Forms of Racial Discrimination (the Race Convention), also ratified by the U.S. in 1994. I would now like to look into each of these three aspects of the definition of torture to see if the U.S. practice of capital punishment violates the Torture Convention.
  11. English criminal law concerns offences, their prevention and the consequences, in England and Wales. Criminal conduct is considered to be a wrong against the whole of a community, rather than just the private individuals affected. The state, in addition to certain international organisations, has responsibility for crime prevention, for bringing the culprits to justice, and for dealing with convicted offenders. The police, the criminal courts and prisons are all publicly funded services, though the main focus of criminal law concerns the role of the courts, how they apply criminal statutes and common law, and why some forms of behaviour are considered criminal. The fundamentals of a crime are a guilty act (or actus reus) and a guilty mental state (or mens rea). The traditional view is that moral culpability requires that a defendant should have recognised or intended that they were acting wrongly, although in modern regulation a large number of offences relating to road traffic, environmental damage, financial services and corporations, create strict liability that can be proven simply by the guilty act. Defences exist to some crimes. A person who is accused may in certain circumstances plead they are insane and did not understand what they were doing, that they were not in control of their bodies, they were intoxicated, mistaken about what they were doing, acted in self defence, acted under duress or out of necessity, or were provoked. These are issues to be raised at trial, for which there are detailed rules of evidence and procedure to be followed. England and Wales does not have a Criminal Code, though such an enactment has been often recommended and attempted (see English Criminal Code). Many criminal offences are common law offences rather being specified in legislation. In 1980, a Committee of JUSTICE said that, upon conducting a search, they found over 7,200 offences, and that they thought that there were probably many more. They said that "it is now impossible to ascertain the entire content of the criminal law at any given time". In 1989, the Law Commission said that a hypothetical criminal code that contained all existing criminal offences would be "impossibly bulky". In 2001, Peter Glazebrook said the criminal law was "voluminous, chaotic and contradictory". In March 2011, there were more than ten thousand offences excluding those created by by-laws. In 1999, P J Richardson said that as the case for a moratorium on legislation in the field of criminal justice was becoming stronger and stronger, governments seemed ever more determined to bring forward more legislation Criminal law elements The two basic elements of a crime are the act of doing that which is criminal, and the intention to carry it out. In Latin this is called the actus reus and the mens rea. In many crimes however, there is no necessity of showing criminal intention, which is why the term "strict liability" is used. Actus reus Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It is usually the application or threat of unlawful force, though exceptionally an omission or failure to act can result in liability. Simple examples might be A hitting B with a stick, or X pushing Y down a water well. These are guilty acts and the unlawful application or force. Alternatively, one may have a pre-existing duty to another person and by deliberately not performing it, one commits a crime. For instance, not giving food is an omission rather than an act, but as a parent one has a duty to feed one's children. Pre-existing duties can arise also through contract, a voluntary undertaking, a blood relation with whom one lives, and occasionally through one's official position. As the 19th century English judge, Lord Coleridge CJ wrote, “It would not be correct to say that every moral obligation involves a legal duty; but every legal duty is founded on a moral obligation.” Furthermore, one can become bound by a duty to take reasonable steps to correct a dangerous situation that one creates. In R v Miller a squatter flicked away a still lit cigarette, which landed on a mattress. He failed to take action, and after the building had burned down, he was convicted of arson. He failed to correct the dangerous situation he created, as he was duty bound to do. In many countries in Europe and North America, Good Samaritan laws also exist, which criminalize failure to help someone in distress (e.g. a drowning child). On the other hand, it was held in the U.K. that switching off the life support of someone in a persistent vegetative state is an omission to act and not criminal. Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the patient's best interests, no crime takes place. If someone's act is to have any consequence legally, it must have in some way caused a victim harm. The legal definition of "causation" is that "but for" the defendant's conduct, the victim would not have been harmed. If more than one cause for harm exists (e.g. harm comes at the hands of more than one culprit) the rule states that to be responsible, one's actions must have "more than a slight or trifling link" to the harm. Another important rule of causation is that one must "take his victim as he finds him." For instance, if P gives his friend Q a playful slap on the head, but Q suffers from a rare cranial condition and dies, then P can be guilty of manslaughter regardless of how unlucky he is to have bickered with Q. This is known as the thin skull rule. Between the defendant's acts and the victim's harm, the chain of causation must be unbroken. It could be broken by the intervening act (novus actus interveniens) of a third party, the victim's own conduct, or another unpredictable event. A mistake in medical treatment usually will not break the chain, unless the mistakes are in themselves "so potent in causing death." For instance, if emergency medics dropped a stab victim on the way to the hospital and performed the wrong resuscitation, the attacker would not be absolved of the crime. The interplay between causation and criminal responsibility is notoriously difficult, and many outcomes are criticized for their harshness to the unwitting defendant and sidestepping of hospitals' or the victim's own liability. In R v Dear a stab victim reopened his wounds while in the hospital and died. But despite this suicidal behavior, the attacker was still held fully responsible for murder. R v Holland (1841) 2 Mood. & R. 351 break in causal chain R v Instan (1893) 1 QB 450 duty of care, to not omit to help some dying of gangrene R v Smith (Thomas Joseph) [1959] QB, negligence of medics does not stop murder R v Hughes [2013] UKSC 56, driver who was not as fault for a crash could not be responsible for others deaths although he was prosecuted for driving without a licence or insurance. Mens rea Mens rea is another Latin phrase, meaning "guilty mind". It is the mental element of committing a crime and establishes the element of intent. Together with an actus reus, mens rea forms the bedrock of criminal law, although strict liability offenses have encroached on this notion. A guilty mind means intending to do that which harms someone. Intention under criminal law is separate from a person's motive. R v Mohan [1975] 2 All ER 193, intention defined as "a decision to bring about... [the actus reus] no matter whether the accused desired that consequence of his act or not." In the special case of murder, the defendant must have appreciated (i.e. consciously recognized) that either death or serious bodily harm would be the result of his actions. In R v Woolin, a man in a fit of temper threw his three-month-old son onto a wall, causing head injuries from which he died. Although death was certain and the father should have realized, he did not in the least desire that his son be killed or harmed. The English House of Lords sentenced him for manslaughter, but not murder. If a defendant has foresight of death or serious injury the jury may, but is not bound to, find the requisite mens rea. A lower threshold of mens rea is satisfied when a defendant recognizes that some act is dangerous but decides to commit it anyway. This is recklessness. For instance if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbor's house, he could be liable for poisoning. This is called "subjective recklessness," though in some jurisdictions "objective recklessness" qualifies as the requisite criminal intent, so that if someone ought to have recognized a risk and nevertheless proceeded, he may be held criminally liable. A novel aspect of the law on intention is that if one intends to harm somebody, it matters not who is actually harmed through the defendant's actions. The doctrine of transferred malice means, for instance, that if a man strikes another with his belt, but the belt bounces off and hits a nearby woman, the man is guilty of battery toward her. Malice can also be general, so that terrorists who plant bombs to kill random people are certainly guilty. The final requirement states that both an actus reus and a mens rea coincide. For instance, in R v Church, For instance, Mr. Church had a fight with a woman which rendered her unconscious. He attempted to revive her, but gave up, believing her to be dead. He threw her, still alive, in a nearby river, where she drowned. The court held that Mr. Church was not guilty of murder (because he did not ever desire to kill her), but was guilty of manslaughter. The "chain of events", his act of throwing her into the water and his desire to hit her, coincided. In this manner, it does not matter when a guilty mind and act coincide, as long as at some point they do. R v Steane [1947] KB 997, defective intent to help the Nazis, by doing radio broadcasts, rather than help family Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 R v Parker [1977] 1 WLR 600 R v Heard [2007] EWCA Crim 125 R v Faulkner (1877) 13 Cox CC 550 mens rea for one act does not transfer to others Strict liability Not all crimes have a mens rea requirement, or the threshold of culpability required may be reduced. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offences of absolute liability, other than the prohibited act, it may not be necessary to show anything at all, even if the defendant would not normally be perceived to be at fault. England and Wales has strict liability offences, which criminalize behavior without the need to show a criminal mens rea. Most strict liability offences are created by statute, and often they are the result of ambiguous drafting. They are usually regulatory in nature, where the result of breach could have particularly harmful results. An example is drunk driving. R v Woodrow (1846) 15 M&W 404 selling impure food, strict liability, overturning R v Dixon (1814) 3 M. & S. 11 that required mens rea R v Stephens (1866) LR 1 QB 702 strict liability for dumping refuse into a river, despite the defendant (ostensibly) having no knowledge Betts v Armstead (1888) LR 20 QBD 771 Fitzpatrick v Kelly (1873) LR 8 QB 337 food safety Sweet v Parsley [1970] AC 132 mens rea needed for liability for cannibis being smoked on premises, statutory construction presumes a mens rea R v Lambert [2001] UKHL 37, cocaine possession claiming no knowledge Road Traffic Act 1988 s 3ZB
  12. Responsibility for criminal law and criminal justice in the United States is shared between the states and id federal and illegal so the federal government. Sources of law The federal government and all the states rely on the following. Common law Common law is law developed by judges through legal opinions, as opposed to statutes adopted through the legislative process or regulations issued by the executive branch. A common law crime is thus a crime which was originally defined by judges. Common law crimes no longer exist at the federal level, because of the U.S. Supreme Court's decision in United States v. Hudson and Goodwin, 11 U.S. 32 (1812). The validity of common law crimes varies at the state level. Although most states have abolished common law crimes, some have enacted "reception" statutes recognizing common law crimes when no similar statutory crime exists. Statutes All 50 states have their own penal codes. Therefore, for any particular crime somewhere, it would be necessary to look it up in that jurisdiction. However, statutes derive from the common law. For example, if a state's murder statute does not define "human being," that state's courts will rely on the common-law definition. State vs. federal The states, since they possess the police power, have the most general power to pass criminal laws in the United States. The federal government, since it can only exercise those powers granted to it by the Constitution, can only pass criminal laws which are related to the powers granted to Congress. For example, drug crimes, which comprise a large percentage of federal criminal cases, are subject to federal control because drugs are a commodity for which there is an interstate market, thus making controlled substances subject to regulation by Congress in the Controlled Substances Act which was passed under the authority of the Commerce Clause. Gonzales v. Raich affirmed Congress's power to regulate drug possession under the Controlled Substances Act under the powers granted to it by the Commerce Clause. Model Penal Code The Model Penal Code ("MPC") was created by the American Law Institute ("ALI") in 1962. In other areas of law, the ALI created Restatements of Law, usually referred to just as Restatements. For example, there is a Restatement of Contracts and a Restatement of Torts. The MPC is their equivalent for criminal law. Many states have wholly or largely adopted the MPC. Others have implemented it in part, and still others have not adopted any portion of it. However, even in jurisdictions where it has not been adopted, the MPC is often cited as persuasive authority in the same way that Restatements are in other areas of law.
  13. The criminal law of Canada is under the exclusive legislative jurisdiction of the Parliament of Canada. The power to enact criminal law is derived from section 91(27) of the Constitution Act, 1867. Most criminal laws have been codified in the Criminal Code, as well as the Controlled Drugs and Substances Act, Youth Criminal Justice Act and several other peripheral statutes. Prosecution In all Canadian provinces and territories, criminal prosecutions are brought in the name of the "Queen in Right of Canada". A person may be prosecuted criminally for any offences found in the Criminal Code or any other federal statute containing criminal offences. There are two basic types of offences. The most minor offences are summary conviction offences. They are defined as "summary" within the Act and, unless otherwise stated, are punishable by a fine of no more than $5,000 and/or 6 months in jail. Examples of offences which are always summary offences include trespassing at night (section 177), causing a disturbance (section 175) and taking a motor vehicle without the owner's consent (section 335). All non-summary offences are indictable: the available penalties are greater for indictable offences than for summary offences. These in turn may be divided into three categories. Indictable-only offences include treason and murder (section 235), and are listed in section 469 of the Criminal Code. These can only be tried by the higher court of the province with a jury, unless both the accused person and the Attorney General consent to trial by a higher court judge alone: section 473. Offences of absolute jurisdiction include theft and fraud up to the value of $5,000 and certain nuisance offences. These are listed in section 553 of the Criminal Code: the accused person does not have an election and must be tried by a judge of the provincial court without a jury. Most other offences defined by the Criminal Code are triable either way, and are sometimes known as hybrid offences. In these offences the accused person can elect whether to be tried by: a provincial court judge, a judge of the higher court of the province without a jury or a judge of the higher court with a jury. However, if the accused elects trial by a provincial court judge, that judge can decline jurisdiction and refer the case to the higher court: section 554. The Attorney General can also require a case to be tried by the higher court with a jury: section 568. Elements of an offence Criminal offences require the prosecuting crown to prove that there was criminal conduct (known as the actus reus or "guilty act") accompanied by a criminal state of mind (known as the mens rea or "guilty mind") on a standard of "beyond a reasonable doubt". Exceptions to the mens rea requirement exist for strict and absolute liability offences. The specific elements of each offence can be found in the wording of the offence as well as the case law interpreting it. The external elements typically require there to be an "act", within some "circumstances", and sometimes a specific "consequence" that is caused by the action. For the crown to prove the accused is guilty the actus reus and mens rea must be proven. Actus Reus + Mens Rea = Crime/ Guilty Mens rea The mental or fault elements of an offence are typically determined by the use of words within the text of the offence or else by case law. Mens Rea in Canada typically focuses on the actual or 'subjective' state of mind of the accused. Where no standard is explicitly stated conduct must typically be proven to have been done with a general intent (i.e. intent to act in a certain way irrespective of the action's outcome). Where certain circumstances are part of the offence, the accused must have had knowledge of them, which can be imputed based on conduct and other evidence.
  14. The criminal law of Australia is the body of law made, recognised and applied in Australia that relates to crime. Most criminal law is made and administered by the individual states and territories of Australia. However, a body of criminal law is also made and administered by the federal government. Criminal law may be differentiated from civil law, which in Australia relates to non-criminal law including civil wrongs, contract law, much of property law and other areas that concern the rights and duties of individuals amongst themselves. In Australia, when a criminal prosecution is commenced, the burden of proof lies with the prosecutor. The general rule is that an accused person is 'innocent until proven guilty'. The standard of proof is 'beyond reasonable doubt' which is the highest standard in law. Generally speaking, you have the right to remain silent if you are questioned by the police and you can not be forced to give evidence at your own trial. Common law and code jurisdictions Australian criminal law was originally received from the English common law, which continues to evolve in Australian courts. Although all states now also have some criminal law legislation, in some states the criminal law has been wholly codified, whereas in other states the bulk of the criminal law remains based on the common law, but may be partially expressed in legislation. These two types of criminal law systems are generally referred to as 'code jurisdictions' or 'common law jurisdictions' respectively. New South Wales, South Australia and Victoria are common law jurisdictions. These states have legislation which lists the most common offences and fix their penalties, but do not always exhaustively define the elements of the offence. For example, in New South Wales, section 117 of the Crimes Act 1900 (NSW) states: 117. Punishment for larceny Whosoever commits larceny, or any indictable offence by this Act made punishable like larceny, shall, except in the cases hereinafter otherwise provided for, be liable to imprisonment for five years. This section states that larceny (i.e. stealing) is an indictable offence and that the punishment is imprisonment for five years. But neither this section nor the remainder of the Act defines larceny. The offence of larceny remains defined by the common law. It is settled law in the common law jurisdictions that only Parliaments, not the courts, can create new offences. The "code jurisdictions" are the Commonwealth, the Australian Capital Territory, the Northern Territory, Queensland, Tasmania, and Western Australia. In these jurisdictions a statutory code has been introduced to be a comprehensive statement of criminal law, and replaces the common law except in cases of ambiguity. Codification in some cases involved a simple enactment of the common law into a statutory instrument. In other cases the changes were greater as the code was based on legislative instruments from other jurisdictions. Legislation (including the criminal codes) is further refined by the method of judicial precedent and interpretation. In addition to explicitly titled criminal code legislation, most jurisdictions also have other legislation that also creates some criminal offences. Law reform and the Model Criminal Code Some states plan to reform the criminal law to achieve greater consistency between states through a Model Criminal Code. However, as criminal law is not an express power under section 51 of the Constitution that the Federal Government can legislate on, the Model Criminal Code is simply a model that individual states may choose to adapt to their own criminal laws. At present, New South Wales, Western Australia and the Northern Territory have participated in modifying some crimes to match the position in the model criminal code, but in many areas states have not changed laws to reflect this code, and in some instances rejected the code entirely. Jurisdictions Federal The Commonwealth has its own criminal jurisdiction for offences against federal laws. However, its jurisdiction in criminal matters is more limited than that of the States. The situation is similar to American criminal law . The principal source of Commonwealth criminal law was originally the Crimes Act 1914 (Cth). In 1987, the Commonwealth Attorney-General established a committee chaired by Sir Harry Gibbs to undertake a review of Commonwealth criminal law. The committee published its final report in 1991, recommending the development of a 'consolidating law' to reform Commonwealth criminal law. Following the release of the Gibbs report, the Standing Committee of Attorneys-General established a Criminal Law Officers Committee, later designated the Model Criminal Code Officers Committee (MCCOC), to advance the objective of uniformity in Australian criminal law. The Committee decided to draft a model criminal code capable of adoption by all Australian jurisdictions. In July 1992, the Committee released a discussion draft of the general principles of criminal responsibility. In December 1992, the MCCOC published its final report, which formed the basis for the Criminal Code Act 1995 (Cth). Although an intergovernmental agreement to enact the Model Criminal Code in each Australian jurisdiction did not come to fruition, although substantial parts of it were enacted by the ACT and Northern Territory legislatures.:839 The Criminal Code (Cth) abolished all common law offences. In recent decades, the Commonwealth has increasingly encroached on the powers of the States in relation to criminal law. For instance, the Human Rights (Sexual Conduct) Act 1994 (Cth) overrode the sodomy laws in Tasmania. This was the first time the federal government used the external affairs power to override a State criminal law. In 2001 jurisdiction over offences relating to corporations was transferred from the States to the Commonwealth.
  15. Criminal law jurisdictions Public international law deals extensively and increasingly with criminal conduct that is heinous and ghastly enough to affect entire societies and regions. The formative source of modern international criminal law was the Nuremberg trials following the Second World War in which the leaders of Nazism were prosecuted for their part in genocide and atrocities across Europe. The Nuremberg trials marked the beginning of criminal fault for individuals, where individuals acting on behalf of a government can be tried for violations of international law without the benefit of sovereign immunity. In 1998 an International criminal court was established in the Rome Statute.
  16. Fatal offenses A murder, defined broadly, is an unlawful killing. Unlawful killing is probably the act most frequently targeted by the criminal law. In many jurisdictions, the crime of murder is divided into various gradations of severity, e.g., murder in the first degree, based on intent. Malice is a required element of murder. Manslaughter (Culpable Homicide in Scotland) is a lesser variety of killing committed in the absence of malice, brought about by reasonable provocation, or diminished capacity. Involuntary manslaughter, where it is recognized, is a killing that lacks all but the most attenuated guilty intent, recklessness. Settled insanity is a possible defense. Personal offenses Many criminal codes protect the physical integrity of the body. The crime of battery is traditionally understood as an unlawful touching, although this does not include everyday knocks and jolts to which people silently consent as the result of presence in a crowd. Creating a fear of imminent battery is an assault, and also may give rise to criminal liability. Non-consensual intercourse, or rape, is a particularly egregious form of battery. Property offenses Property often is protected by the criminal law. Trespassing is unlawful entry onto the real property of another. Many criminal codes provide penalties for conversion, embezzlement, theft, all of which involve deprivations of the value of the property. Robbery is a theft by force. Fraud in the UK is a breach of the Fraud Act 2006 by false representation, by failure to disclose information or by abuse of position. Participatory offenses Some criminal codes criminalize association with a criminal venture or involvement in criminality that does not actually come to fruition. Some examples are aiding, abetting, conspiracy, and attempt. However, in Scotland, the English concept of Aiding and Abetting is known as Art and Part Liability. See Glanville Williams, Textbook of Criminal Law, (London: Stevens & Sons, 1983); Glanville Williams, Criminal Law the General Part (London: Stevens & Sons, 1961). Mala in se v. mala prohibita While crimes are typically broken into degrees or classes to punish appropriately, all offenses can be divided into 'mala in se' and 'mala prohibita' laws. Both are Latin legal terms, mala in se meaning crimes that are thought to be inherently evil or morally wrong, and thus will be widely regarded as crimes regardless of jurisdiction. Mala in se offenses are felonies, property crimes, immoral acts and corrupt acts by public officials. Mala prohibita, on the other hand, refers to offenses that do not have wrongfulness associated with them. Parking in a restricted area, driving the wrong way down a one-way street, jaywalking or unlicensed fishing are examples of acts that are prohibited by statute, but without which are not considered wrong. Mala prohibita statutes are usually imposed strictly, as there does not need to be mens rea component for punishment under those offenses, just the act itself. For this reason, it can be argued that offenses that are mala prohibita are not really crimes at all.
  17. Mens rea Mens rea is another Latin phrase, meaning "guilty mind". This is the mental element of the crime. A guilty mind means an intention to commit some wrongful act. Intention under criminal law is separate from a person's motive (although motive does not exist in Scots law). A lower threshold of mens rea is satisfied when a defendant recognizes an act is dangerous but decides to commit it anyway. This is recklessness. It is the mental state of mind of the person at the time the actus reus was committed. For instance, if C tears a gas meter from a wall to get the money inside, and knows this will let flammable gas escape into a neighbour's house, he could be liable for poisoning. Courts often consider whether the actor did recognize the danger, or alternatively ought to have recognized a risk. Of course, a requirement only that one ought to have recognized a danger (though he did not) is tantamount to erasing intent as a requirement. In this way, the importance of mens rea has been reduced in some areas of the criminal law but is obviously still an important part in the criminal system. Wrongfulness of intent also may vary the seriousness of an offense and possibly reduce the punishment but this is not always the case. A killing committed with specific intent to kill or with conscious recognition that death or serious bodily harm will result, would be murder, whereas a killing effected by reckless acts lacking such a consciousness could be manslaughter. On the other hand, it matters not who is actually harmed through a defendant's actions. The doctrine of transferred malice means, for instance, that if a man intends to strike a person with his belt, but the belt bounces off and hits another, mens rea is transferred from the intended target to the person who actually was struck.[Note: The notion of transferred intent does not exist within Scots' Law. In Scotland, one would not be charged with assault due to transferred intent, but instead assault due to recklessness] . Strict liability Strict liability can be described as criminal or civil liability notwithstanding the lack mens rea or intent by the defendant. Not all crimes require specific intent, and the threshold of culpability required may be reduced or demoted. For example, it might be sufficient to show that a defendant acted negligently, rather than intentionally or recklessly. In offenses of absolute liability, other than the prohibited act, it may not be necessary to show the act was intentional. Generally, crimes must include an intentional act, and "intent" is an element that must be proved in order to find a crime occurred. The idea of a "strict liability crime" is an oxymoron. The few exceptions are not truly crimes at all – but are administrative regulations and civil penalties created by statute, such as crimes against the traffic or highway code.
  18. Selected Criminal laws Many laws are enforced by threat of criminal punishment, and the range of the punishment varies with the jurisdiction. The scope of criminal law is too vast to catalog intelligently. Nevertheless, the following are some of the more typical aspects of criminal law. Elements The criminal law generally prohibits undesirable acts. Thus, proof of a crime requires proof of some act. Scholars label this the requirement of an actus reus or guilty act. Some crimes – particularly modern regulatory offenses – require no more, and they are known as strict liability offenses (E.g. Under the Road traffic Act 1988 it is a strict liability offence to drive a vehicle with an alcohol concentration above the prescribed limit). Nevertheless, because of the potentially severe consequences of criminal conviction, judges at common law also sought proof of an intent to do some bad thing, the mens rea or guilty mind. As to crimes of which both actus reus and mens rea are requirements, judges have concluded that the elements must be present at precisely the same moment and it is not enough that they occurred sequentially at different times. Actus reus Actus reus is Latin for "guilty act" and is the physical element of committing a crime. It may be accomplished by an action, by threat of action, or exceptionally, by an omission to act, which is a legal duty to act. For example, the act of A striking B might suffice, or a parent's failure to give food to a young child also may provide the actus reus for a crime. Where the actus reus is a failure to act, there must be a duty of care. A duty can arise through contract, a voluntary undertaking, a blood relation with whom one lives, and occasionally through one's official position. Duty also can arise from one's own creation of a dangerous situation. On the other hand, it was held in the U.K. that switching off the life support of someone in a persistent vegetative state is an omission to act and not criminal. Since discontinuation of power is not a voluntary act, not grossly negligent, and is in the patient's best interests, no crime takes place. In this case it was held that since a PVS patient could not give or withhold consent to medical treatment, it was for the doctors to decide whether treatment was in the patient's best interest. It was reasonable for them to conclude that treatment was not in the patient's best interest, and should therefore be stopped, when there was no prospect of improvement. It was never lawful to take active steps to cause or accelerate death, although in certain circumstances it was lawful to withhold life sustaining treatment, including feeding, without which the patient would die. An actus reus may be nullified by an absence of causation. For example, a crime involves harm to a person, the person's action must be the but for cause and proximate cause of the harm. If more than one cause exists (e.g. harm comes at the hands of more than one culprit) the act must have "more than a slight or trifling link" to the harm. Causation is not broken simply because a victim is particularly vulnerable. This is known as the thin skull rule. However, it may be broken by an intervening act (novus actus interveniens) of a third party, the victim's own conduct, or another unpredictable event. A mistake in medical treatment typically will not sever the chain, unless the mistakes are in themselves "so potent in causing death."
  19. Objectives of Criminal law Criminal law is distinctive for the uniquely serious potential consequences or sanctions for failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime. Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restoration. Jurisdictions differ on the value to be placed on each. Retribution – Criminals ought to Be Punished in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be executed himself. A related theory includes the idea of "righting the balance." Deterrence – Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses. Incapacitation – Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose. Rehabilitation – Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong. Restoration – This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any injury inflicted upon the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restoration is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law, i.e., returning the victim to his or her original position before the injury.
  20. Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and moral welfare of people inclusive of one's self. Most criminal law is established by statute, which is to say that the laws are enacted by a legislature. Criminal law includes the punishment and rehabilitation of people who violate such laws. Criminal law varies according to jurisdiction, and differs from civil law, where emphasis is more on dispute resolution and victim compensation than on punishment or rehabilitation. Criminal procedure is a formalized official activity that authenticates the fact of commission of a crime and authorizes punitive or rehabilitative treatment of the offender. History The first civilizations generally did not distinguish between civil law and criminal law. The first written codes of law were designed by the Sumerians. Around 2100–2050 BC Ur-Nammu, the Neo-Sumerian king of Ur, enacted the oldest written legal code whose text has been discovered: the Code of Ur-Nammu although an earlier code of Urukagina of Lagash ( 2380–2360 BC ) is also known to have existed. Another important early code was the Code Hammurabi, which formed the core of Babylonian law. Only fragments of the early criminal laws of Ancient Greece have survived, e.g. those of Solon and Draco. In Roman law, Gaius's Commentaries on the Twelve Tables also conflated the civil and criminal aspects, treating theft (furtum) as a tort. Assault and violent robbery were analogized to trespass as to property. Breach of such laws created an obligation of law or vinculum juris discharged by payment of monetary compensation or damages. The criminal law of imperial Rome is collected in Books 47–48 of the Digest. After the revival of Roman law in the 12th century, sixth-century Roman classifications and jurisprudence provided the foundations of the distinction between criminal and civil law in European law from then until the present time. The first signs of the modern distinction between crimes and civil matters emerged during the Norman Invasion of England. The special notion of criminal penalty, at least concerning Europe, arose in Spanish Late Scholasticism (see Alfonso de Castro), when the theological notion of God's penalty (poena aeterna) that was inflicted solely for a guilty mind, became transfused into canon law first and, finally, to secular criminal law. The development of the state dispensing justice in a court clearly emerged in the eighteenth century when European countries began maintaining police services. From this point, criminal law had formalized the mechanisms for enforcement, which allowed for its development as a discernible entity.
  21. Official record data The Office of Juvenile Justice and Delinquency Prevention indicates that 15% of juvenile arrests occurred for rape in 2006, and 12% were clearance (resolved by an arrest). The total number of juvenile arrests in 2006 for forcible rape was 3,610 with 2% being female and 36% being under the age of 15 years. This trend has declined throughout the years with forcible rape from 1997–2006 being −30% and from 2005 to 2006 being −10%. The OJJDP reports that the juvenile arrest rate for forcible rape increased from the early 1980s through the 1990s and at that time it fell again. All types of crime rates fell in the 1990s. The OJJDP also reported that the total number of juvenile arrests in 2006 for sex offenses (other than forcible rape) was 15,900 with 10% being female and 47% being under the age of 15. There was again a decrease with the trend throughout the years with sex offenses from 1997 to 2006 being −16% and from 2005 to 2006 being −9%. Males who commit sexual crimes Barbaree and Marshall indicate that juvenile males contribute to the majority of sex crimes, with 2–4% of adolescent males having reported committing sexually assaultive behavior, and 20% of all rapes and 30–50% of all child molestation are perpetrated by adolescent males. It is clear that males are over-represented in this population. This is consistent with Ryan and Lane’s research indicating that males account for 91-93% of the reported juvenile sex offenses. Righthand and Welch reported that females account for an estimated 2–11% of incidents of sexual offending. In addition, it reported by The Office of Juvenile Justice and Delinquency Prevention that in the juvenile arrests during 2006, African American male youth were disproportionately arrested (34%) for forcible rape. In one case in a foster home a 13-year-old boy raped a 9-year-old boy by having forced anal sex with him, in a court hearing the 9-year-old boy said he has done this multiple times, that the 13-year-old boy was charged for sexual assault. Juvenile sex crimes internationally Sexual crimes committed by juveniles are not just an issue in the United States. Studies from the Netherlands show that out of 3200 sex offenders recorded by police in 2009, 672 of those were juveniles, approximately 21 percent of sexual offenders. The study also points out the male to female ratio of sexual predators. In 2009, a U.S. congressman proposed legislature that would create an International Sex Offender Registry. The bill was introduced due to the fact that because laws differ in different countries someone who is on the sex offender registry in the U.S. who may be barred from living certain places and doing certain activities has free range in other less developed countries. This can lead to child sex tourism, when a sexual predator will go to less developed countries and prey on young boys and girls. Karne Newburn in his article, The Prospect of an International Sex Offender Registry, pointed out some serious flaws in the proposed bill, such as creating safety issues within the communities for the sex offenders placed on the registry. Newburn suggested instead of creating an International Sex Offender Registry from the U.S. model the U.S. join other countries in a dialogue on creating an effective model. As of now no registry exists. Despite this there is still interest in creating some sort of international registry.
  22. Juvenile sex crimes Juveniles who commit sexual crimes refer to individuals adjudicated in a criminal court for a sexual crime. Sex crimes are defined as sexually abusive behavior committed by a person under the age of 18 that is perpetrated "against the victim's will, without consent, and in an aggressive, exploitative, manipulative, and/or threatening manner". It is important to utilize appropriate terminology for juvenile sex offenders. Harsh and inappropriate expressions include terms such as "pedophile, child molester, predator, perpetrator, and mini-perp" These terms have often been associated with this group, regardless of the youth’s age, diagnosis, cognitive abilities, or developmental stage. Using appropriate expressions can facilitate a more accurate depiction of juvenile sex offenders and may decrease the subsequent aversive psychological affects from using such labels. In the Arab Gulf states, homosexual acts are classified as an offense, and constitute one of the primary crimes for which juvenile males are charged. Prevalence data Examining prevalence data and the characteristics of juvenile sex offenders is a fundamental component to obtain a precise understanding of this heterogeneous group. With mandatory reporting laws in place, it became a necessity for providers to report any incidents of disclosed sexual abuse. Longo and Prescott indicate that juveniles commit approximately 30-60% of all child sexual abuse. The Federal Bureau of Investigation Uniform Crime Reports indicate that in 2008 youth under the age of 18 accounted for 16.7% of forcible rapes and 20.61% of other sexual offenses. Center for Sex Offender Management indicates that approximately one-fifth of all rapes and one-half of all sexual child molestation can be accounted for by juveniles.
  23. Critique of risk factor research Two UK academics, Stephen Case and Kevin Haines, among others, criticized risk factor research in their academic papers and a comprehensive polemic text, Understanding Youth Offending: Risk Factor Research, Policy and Practice. The robustness and validity of much risk factor research is criticized for: Determinism, e.g., characterising young people as passive victims of risk experiences with no ability to construct, negotiate or resist risk. Imputation, e.g., assuming that risk factors and definitions of offending are homogenous across countries and cultures, assuming that statistical correlations between risk factors and offending actually represent causal relationships, and assuming that risk factors apply to individuals on the basis of aggregated data. Reductionism, e.g., over-simplfying complex experiences and circumstances by converting them to simple quantities, relying on a psychosocial focus while neglecting potential socio-structural and political influences.
  24. Prevention Delinquency prevention is the broad term for all efforts aimed at preventing youth from becoming involved in criminal, or other antisocial, activity. Because the development of delinquency in youth is influenced by numerous factors, prevention efforts need to be comprehensive in scope. Prevention services may include activities such as substance abuse education and treatment, family counseling, youth mentoring, parenting education, educational support, and youth sheltering. Increasing availability and use of family planning services, including education and contraceptives helps to reduce unintended pregnancy and unwanted births, which are risk factors for delinquency. Education is the great equalizer, opening doors to lift themselves out of poverty.... Education also promotes economic growth, national productivity and innovation, and values of democracy and social cohesion. Prevention through education aides the young people to interact more effectively in social contexts, therefore diminishing need for delinquency. It has been noted that often interventions may leave at-risk children worse off then if there had never been an intervention. This is due primarily to the fact that placing large groups of at risk children together only propagates delinquent or violent behavior. "Bad" teens get together to talk about the "bad" things they've done, and it is received by their peers in a positive reinforcing light, promoting the behavior among them. A well-known intervention treatment that has not increased the prevention of juvenile delinquency is the Scared Straight Treatment. “The harmful effects of Scared Straight and boot-camp programs may be attributable to juvenile offenders’ vicarious exposure to criminal role models, to the increased resentment engendered in them by confrontational interactions, or both”. This suggests that exposure to criminals could create a sense of idealization and defeat the entire purpose of scared straight treatment. Also, this treatment doesn’t acknowledge the psychological troubles that the teenager may be experiencing. As mentioned before, peer groups, particularly an association with antisocial peer groups, is one of the biggest predictors of delinquency, and of life-course-persistent delinquency. The most efficient interventions are those that not only separate at-risk teens from anti-social peers, and place them instead with pro-social ones, but also simultaneously improve their home environment by training parents with appropriate parenting styles, parenting style being the other large predictor of juvenile delinquency.
  25. Mental/conduct disorders Juvenile delinquents are often diagnosed with different disorders. Around six to sixteen percent of male teens and two to nine percent of female teens have a conduct disorder. These can vary from oppositional-defiant disorder, which is not necessarily aggressive, to antisocial personality disorder, often diagnosed among psychopaths. A conduct disorder can develop during childhood and then manifest itself during adolescence. Juvenile delinquents who have recurring encounters with the criminal justice system, or in other words those who are life-course-persistent offenders, are sometimes diagnosed with conduct disorders because they show a continuous disregard for their own and others safety and/or property. Once the juvenile continues to exhibit the same behavioral patterns and turns eighteen he is then at risk of being diagnosed with antisocial personality disorder and much more prone to become a serious criminal offender. One of the main components used in diagnosing an adult with antisocial personality disorder consists of presenting documented history of conduct disorder before the age of 15. These two personality disorders are analogous in their erratic and aggressive behavior. This is why habitual juvenile offenders diagnosed with conduct disorder are likely to exhibit signs of antisocial personality disorder early in life and then as they mature. Some times these juveniles reach maturation and they develop into career criminals, or life-course-persistent offenders. "Career criminals begin committing antisocial behavior before entering grade school and are versatile in that they engage in an array of destructive behaviors, offend at exceedingly high rates, and are less likely to quit committing crime as they age." Quantitative research was completed on 9,945 juvenile male offenders between the ages of 10 and 18 in Philadelphia, Pennsylvania in the 1970s. The longitudinal birth cohort was used to examine a trend among a small percentage of career criminals who accounted for the largest percentage of crime activity. The trend exhibited a new phenomenon among habitual offenders. The phenomenon indicated that only 6% of the youth qualified under their definition of a habitual offender (known today as life-course persistent offenders, or career criminals) and yet were responsible for 52% of the delinquency within the entire study. The same 6% of chronic offenders accounted for 71% of the murders and 69% of the aggravated assaults. This phenomenon was later researched among an adult population in 1977 and resulted in similar findings. S. A. Mednick did a birth cohort of 30,000 males and found that 1% of the males were responsible for more than half of the criminal activity. The habitual crime behavior found among juveniles is similar to that of adults. As stated before most life-course persistent offenders begin exhibiting antisocial, violent, and/or delinquent behavior, prior to adolescence. Therefore, while there is a high rate of juvenile delinquency, it is the small percentage of life-course persistent, career criminals that are responsible for most of the violent crimes.
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