FRI, Oct 8 \ 11.30-13.30 \ Legal Response to Sexual Violence

069
AMERICAN APPROACHES TO SEXUAL VIOLENCE: PAST, PRESENT AND FUTURE

Eric Janus
Professor, William Mitchell College of Law, USA
EJanus@WMitchell.edu

The decade of the 1990's produced important changes in legislative approaches to sexual violence in the United States. These changes followed the equally significant revolution of the prior two decades in which feminist theory re-shaped American approaches to sexual violence. This paper will assess the more recent changes, the most prominent of which are “Megan's law” and “Sexually Violent Predator” laws. These laws adopt “preventive” legal forms to supplement the normal post-violence interventions of the criminal justice system. The thesis of the paper is that the new approach distorts public policy choices regarding sexual violence. The new laws depend on risk assessment, and this process tends to frame the policy question in terms of incapacitating the “most dangerous” individuals, rather than preventing the “most violence.” In addition, the assumptions underlying the new approaches are fundamentally at odds with and threaten to undercut the key tenets of the feminist approaches. Yet the new approache feed a “politics of sexual violence” that tends to exacerbate rather than moderate the distortions caused by “preventive” legal forms. Looking to the future, the paper will ask what the broader implications of the new approach are in the emerging “preventive state.”

070
APROACHES TO SEXUAL VIOLENCE IN THE NEW TURKISH CRIMINAL CODE

Feridun Yenisey
Professor for Criminal Law and Criminal Procedure Law,
Faculty of Law at Marmara University, Istanbul University, and Bahcesehir University, Turkey
fyenisey@bahcesehir.edu.tr ]

Turkish Criminal Code shall be substituted by a new Code soon. I shall report about the existing Code and its applications, as well as on the Draft Criminal Code, with particular emphasis on the laws dealing with rape and other forms of sexual abuse.

071
THE TREATMENT OF SEX OFFENDERS IN GERMANY: BORROWING FROM THE UNITED STATES?

Nora V. Demleitner
Professor of Law, Hofstra University School of Law, Hempstead, New York, USA
lawnvd@hofstra.edu

The paper will address the latest developments in the treatment of sex offenders in Germany. Its focus will be on the so-called Sicherungsverwahrung which is designed to incapacitate offenders whose criminal justice sanctions have run their course. In this respect it resembles the use of civil commitment for sex offenders in the United States. In recent years a number of German states have expanded the use of Sicherungsverwahrung so as to abolish mandatory release dates, and allow for a determination of the commitment of offenders long after sentencing and even after release from imprisonment. Some of these developments reflect practices in the
United States where about a third of all states allow for the civil commitment for sex offenders. Generally, civil commitment in these cases is not imposed until shortly before the offender's release from incarceration. Even though the sex offender's commitment is subject to annual review procedures, the indeterminate confinement can amount to life-long detention if the offender cannot show that he does not
constitute a future risk, a high burden to meet. The legislative justifications for the
expanded use of Sicherungsverwahrung in Germany and the judicial response to it will be discussed, as well as whether any trans-Atlantic influence can be detected in these developments in Germany. Moreover, the paper will challenge some of the rationales for this expansion of Sicherungsverwahrung in light of the existing and emerging critique of civil commitment in both countries.

072
WHEN PUBLIC PROTECTION BECOMES PUNISHMENT? THE UK USE OF CIVIL MEASURES TO CONTAIN THE SEX OFFENDER

Terry Thomas
Reader in Social Work, Leeds Metropolitan University, England
t.thomas@leedsmet.ac.uk

This paper examines the use of the civil law to improve public protection in the UK. Taking the example of the sex offender register as a case study it examines successive government attempts to ‘strengthen' the register to such an extent that it is in danger of becoming a punishment rather than a regulatory measure to achieve greater public safety. These ‘strengthening' exercises are considered within a climate of ‘popular punitivism' led by elements of the tabloid press, and a government seeking to do what is popular, rather than what might be most effective in the light of formal evaluation and consultation with professionals and practitioners.

073
A SOUTH AFRICAN PERSPECTIVE ON CHILD RAPE, SOCIAL CONTEXT AND LEGISLATIVE REALITIES

Dario Dosio
Department of Justice, Soweto, South Africa
dariodosio@worldonline.co.za

Strong prevailing social context issues in South Africa have contributed to the high levels of child rape. The heterogeneity of the South African society dictates in each instance whether a child victim is encouraged or discouraged from entering the legal system as a complainant. It is with this primary focus that an attempt will be made to evaluate the effectiveness of the present Criminal Procedure Act in South Africa, as well as the newly proposed Sexual Offences Bill. Reference will be made to the trail procedure, conviction of the accused and sentence. This presentation contains observations made from a Regional Magistrate in Soweto specialising in a child rape court. The joint impact that social and legislative issues have on the decisions of a Regional Magistrate will be considered. Difficulties are experienced by Magistrates due to the lack of laboratories in Soweto dictating that the credibility of child witnesses becomes the sole evidence to be considered in the absence of the analysis of DNA evidence. The aim of this presentation is to address these challenges as well as to offer solutions to ameliorate the negative impact that testifying in court might have on child witnesses. Reference will also be made to the impact that the imposition of mandatory life imprisonment has on accuseds who have been convicted of child rape and whether there is the likelihood that this in anyway will act as deterrent to other potential child rapists.

074
SEX OFFENDER REENTRY COURTS: AN EFFECTIVE STRATEGY FOR MANAGING SEX OFFENDER RISK IN THE COMMUNITY

John Q. La Fond,
Professor of Law, Edward A. Smith/Missouri Chair in Law, the Constitution, and Society
University of Missouri-Kansas City School of Law, USA
LafondJ@umkc.edu

Professor La Fond will discuss the difficulties in accurately predicting whether sex offenders will commit more sex crimes. He will then describe risk management strategies for assessing this risk on an on-going basis. Finally, he will discuss a proposal he and Professor Bruce Winick have developed for a sex offender reentry court. This specialized court addresses the community's need for safety by on-going risk assessment of sex offenders and increasing or decreasing the level of control in light of those assessments, while also providing powerful incentives for offender to engage in treatment and to change their attitudes and behaviors. This proposal is both smart and tough because it combines a systemic approach for managing sex offender risk, while also encouraging offender rehabilitation.