Sexual Offending, Prostitution and Human trafficking texts PDF

Preview

Summary

Samenvatting van alle teksten...

Description

Module 1: Rape, sexual assault & sexual harassment Protecting the right to sexual self-determination: Models of regulation and current challenges in European and German sex crime laws The current challenges in the regulation of sex crimes in Germany and Europe: 1. Consent as the basis for the protection of the right to sexual self-determination o D  o all encroachments of sexual self-determination need a response by the criminal justice system, when considering that a broad range of behaviour can be labelled sexual (ex. staring at another person)? o W  e also must take the dynamics of the situation and human behaviour into account. 2. A low rate of convictions - a sign for lacunae? o I n Germany, a few very bad court decisions have led to the impression that the right to sexual self-determination is not properly protected → “hard cases make bad law” Ex: court decided there was no rape in a case where the perpetrator first killed a man with a gun, and afterwards had sex with the wife with the gun next to the bed because there was no force o T  he interpretation of low conviction rates for sex crimes differs largely: lacunae in the criminal statues and/or in the criminal prosecution of perpetrators ↔ the problem of false accusations and criminal proceedings against innocent people o A  lot of aspects cause the low rate of convictions: there was no crime, the victim refused to testify in court, the victim revoked his/her accusation, the testimony was insufficient because of the influence of alcohol/drugs, the testimony was contradictory… o I t becomes clear that prosecuting sex crimes depends heavily on testimony by the victim + the judges must be convinced that the victim testimony reflects the truth

3. Secondary victimization, false-positive and false-negative decisions o A  victim might suffer a second time when he or she must testify, and a third time if the court does not consider his or her statement as a sufficient basis for a conviction o B  ut lowering the bar for a criminal conviction would automatically increase the risk of false-positive convictions o W  hat we should instead strive for: In cases which we cannot decide due to conflicting evidence, we must not convict the defendant, but we can still stand next to the victims, take them seriously, and try to help them. 4. A political window of opportunity o U  nder current German criminal laws, there is no protection by (specific) sex crime laws whenever someone only misuses a situation of surprise, or whenever someone ignored only an (explicit or implicit) “no” but there was no threat or force or resistance

Models of regulation in European and German sex crime laws -

In

the past only additional elements such as violence, force, threats, etc. were

present constituted a criminal offense in German sex crime laws. → A new approach instead focuses on the right to sexual self-determination as a basic offense -

the

“Istanbul Convention” requires State Parties of the Council of Europe to

criminalize the following intentional conduct: a) engaging in non-consensual vaginal, anal or oral penetration of a sexual nature of the body of another person with any bodily part or object; b) engaging in other non-consensual acts of a sexual nature with a person; c) causing another person to engage in non-consensual acts of a sexual nature with a third person.” → This is an all-encompassing protection of the right of sexual self-determination → There is only a requirement to criminalize intentional wrongdoing → There must be some form of (explicit or implicit) disagreement

What conduct is to be addressed by sex crime laws? -

The legislature must determine when an act reaches a sexual level

-

There might be some situations where other forms of social control, such as moral condemnation or educating the public, might be more appropriate than the heavy sword of criminal law. → Where these lines should be drawn is mostly a political question

When should consent be irrelevant? Minors? Threat? Alcohol? Authority? Deception?....

“Yes means yes” – “No means no” -

“Yes means yes” – model: o T  his model considers any sexual conduct to be illegal and liable for criminal punishment, unless it is evidently consensual. o T  he basic form lets two people print their name and sign that they agree to engage in sexual conduct with each other o “ Yes means Yes” does not actually mean “forever Yes” or “Yes for the next hour”, but only “Yes” until consent is revoked and “Yes” unless the conduct exceeds the scope of the consent o D  isadvantages: it hinders spontaneous decisions and actions + it does not focus on the consent, but on a (potentially misleading) signature

-

“No mean no” – model o T  his model considers any sexual conduct to be legal, unless it is clear that no consent was given. o “ Against his or her noticeable will”: once non-consent is expressed in one way or another – verbally, by signs, etc. – any sexual activity becomes a severe crime under German criminal law → The defendant must have noticed the opposing will of the other person, or at least must have considered the possibility that the other person did not consent. o D  isadvantages: create a higher risk for victims being frustrated in court + might also lead to higher numbers of false-positive convictions and of false-negative acquittals

-

A

new crime on sexual harassment was enacted by German legislature: “touching

the body of another in a sexually determined manner”.

From ‘no means no’ to ‘an enthusiastic yes’: Changing the Discourse on Sexual Consent Through Sex and Relationships Education The Sexual Offences Act 2003 states that a person consents to sexual activity ‘if he or she agrees by choice and has the freedom and capacity to make that choice’.

The Give’n’Get project: Eight short films. Seven described a scenario where a young woman or man describes sex in circumstances that legally constituted rape, but introduced contextual elements: alcohol, a relationship, sexual attraction… The final video acted as a ‘debrief’ where the young woman described a mutual decision with her boyfriend not to have sex. Young people were asked; whether they thought that X made sure that Y was OK with what was happening; whether they thought Y was able to say yes or no and whether each scenario counted as rape.

How young people understand consent: -

Young women were more likely than young men to identify the video scenarios as rape.

-

Young people aged 13-14 were least clear about whether the scenarios constituted rape.

-

Constraints

to consenting to sex (‘freedom’) are not well recognised amongst young

people -

‘Capacity’

to consent (intoxication or diminished mental capacities) was more readily

recognised. -

Any sexual attraction placed young women’s behaviour under scrutiny. Ex: woman wearing clothing that flatter their breasts or sending sexy pictures, are seen as sexualised invitations to their body → blaming young women

‘Man points’ and non-consensual sexual practices -

The

sexual double standard was clear and present in young people’s accounts →

Sexually active young women were devalued and labelled ‘sluts’ and ‘hoes’, whereas young men attracted admiration as ‘legends’ and ‘players’. -

Man points are ratings between peers for showing manliness → the most effective way to accumulate man points was through demonstrating (hetero)sexual prowess: boasting of sexual conquest; collecting ‘sexts’ from young women…

-

Sexting as the new norm →Can lead to young women being sexually harassed to send sexts

-

Spectrum

of non-consensual sexual practices: The pressure that some young men

use to get sexts sent in the first place becomes rapidly invisible, along with their awareness of young women’s reluctance. At the same time, young men experience pressure in the form of ‘man points’ that equate social constructions of masculinity with sexual conquest, and position young women through the age-old discourses of ‘slags and drags’

Pornography: -

Pornography served as a substitute for information about sex

-

The gendered messages from pornography – men’s entitlement to women’s bodies for sex and the presumed sexual availability of young women - reflect those of how young people understand sexual consent.

-

Both young men and young women also identified gender patterns in terms of influences of pornography. Their key concern was that it leads young men to think that young women are ‘easy’ and sex should be ‘aggressive’ and ‘forceful’. Some described young men becoming ‘more sexist’ as a result of viewing pornography. Young women reported feeling under pressure to behave like women in pornography.

-

Young people perceived that pornography sexualises sexism, and also that it filled a gap in information about sex.

Implications: Young people seek an open forum in which it is possible to explore questions, emotional conflicts and complex realities. They lamented the focus on risk and safety. Not one of the young people who participated in focus groups could identify being taught about consent in terms of deciding to have sex or the circumstances in which agreement to have sex is sought or granted. Sex and Relationships Education that truly aims to prevent sexual violence needs to enable young people to seek, and understand, consent as an enthusiastic and embodied yes.

Experiences of sexual harassment are associated with the sexual behavior of 14- to 18-year-old adolescents Introduction: Sexual harassment can be divided into gender harassment, unwelcome sexual attention, and sexual coercion. In most studies, one to two thirds of adolescents reported to have been subjected to such experiences. Research has observed associations between an adolescent’s own sexual behavior and his/her subjection to sexual harassment. In the developmental phases of early and middle adolescence, intimate sexual activity could be the consequences of traumatizing experiences, such as sexual harassment. Moreover, suffering from sexual harassment could be a consequence of an adolescent’s interest in romantic and erotic involvements that bring about socializing in circumstances that also increase the risk of sexual harassment. The associations between sexual behavior and subjection to sexual harassment could further be due to a third factor that predisposes to both, such as mental health disorders.

Aim of the study: To explore the associations between various types of sexual behavior and exposure to sexual harassment among boys and girls aged 14–18 years old, taking into account factors that were previously found to be associated with sexual harassment and sexual behavior in adolescence, namely, emotional (depression) and behavioral (delinquency) disorders, and sociodemographic background.

Results: -

Advancing sexual behavior was associated with increased subjection to sexual harassment among 14- to 18-year old Finnish adolescent boys and girls. Among the sexually active adolescents, risk-taking sexual behavior was associated with subjection to sexual harassment.

-

The associations between sexual activity and experiences of sexual harassment persist even when sociodemographic variables and disorder dimensions associated with both sexual behavior and sexual harassment during adolescence are controlled for.

-

As it was cross-sectional, this study can shed no light on causality: does advancing sexual behaviour lead to sexual harassment or the other way around?

-

Advancing sexual behaviors were associated with sexual harassment in both boys and girls, but the odds ratios rose more sharply with advancing experiences in girls.

-

The frequency of sexual activity: Among the boys, the group reporting the most frequent intercourse also displayed increased odds for sexual coercion; among the sexually active girls, intercourse during the month prior to the questionnaire was associated with reporting fewer experiences of sexual harassment →Possible explanation: regular sexual activity among adolescent girls occured more often in a relationship, whereas boys had sex without being in a steady relationship.

-

Sexual harassment is a negative, potentially traumatizing experience associated with a number of adverse outcomes and is likely even more harmful than other forms of bullying and harassment.

Suggestions: The possible subjection to sexual harassment needs attention when working with sexually active adolescents, or even with adolescents only starting to show interest in romantic and erotic relationships. Adolescents need to know about their rights and need to have the skills to protect themselves against unwelcome advances. Preventive efforts should also focus on increasing the understanding and motivation of adolescents to withdraw from perpetrating sexually harassing behaviors.

Present and Future Instances of Virtual Rape in Light of Three Categories of Legal Philosophical Theories on Rape Subject: A virtual rape is the rape of an avatar in a virtual world →should virtual rape be considered a crime under current law?

This paper will focus on the legality of virtual rape and not its (im-)morality.

What is virtual rape? -

A virtual act is a computer-simulated act that generally consists of three steps. First, a human being performs a bodily action on an input device, s/he presses a button or clicks the mouse. Second, the computer simulation interprets the action as a particular command. Third, the computer simulation makes the changes to the virtual environment.

-

In general terms, rape can be described as the act of forcing sex upon an unwilling person

-

Avatar: A virtual rape in a virtual world entails that a user of a virtual world takes control over another user’s avatar and, depending on the nature of the virtual world, confronts this user and other users with a textual description or a graphical depiction of a sexual act involving the user’s avatar without his or her consent.

-

VR: A user could commit a virtual rape in a virtual reality environment involving a haptic device or robotics. Where in the case of a virtual rape in a virtual world, one user takes control over another user’s avatar in order to make his or her avatar appear to engage in sexual activities the user did not consent to, in this case, one user would have to take control over another user’s haptic device or robot so that s/he can give that user sexually laden sensory feedback to which s/he did not consent. There are several possibilities here.

(When) can a Virtual Act Count as a Crime? -

A virtual act that would fall under a penal norm if performed in the actual or non-virtual world does not necessarily count as a crime. Ex: In the computer game GTA players can kill policemen, but no actual murder charge has ever been brought against a player who did so.

-

But when does a virtual act qualify as a real act? Virtual acts can have intravirtual or extravirtual effects, i.e., effects within the virtual environment where the act is performed or outside that virtual environment. Ex 1: The killing of a policeman in the virtual world of the computer game Grand Theft Auto is an example of a virtual act that only has an intravirtual effect. Ex 2: The instances of virtual rape are examples of virtual acts that have extravirtual effects. Virtual rape in a virtual world can have an emotional effect on the user(s) involved. →Only virtual acts which have extravirtual effects can qualify as real acts

-

Penal provisions formulate elements that an act needs to satisfy in order to count as a crime: 1. An actus reus: an unlawful act or failure to act →A virtual act can only satisfy the element of actus reus intravirtually, because it is performed within a virtual environment through an input device. 2. A mens rea: a blameworthy mental state, usually it is required that the actor acts knowingly, purposely or recklessly →The element of mens rea can only be satisfied extravirtually. That is because the element of mens rea concerns the mental state of the human actor, who is necessarily extravirtual

3. Causation: all crimes also require, implicitly or explicitly, that the actus reus must have a certain consequence or effect, e.g., the death or injury of a person or a loss of property →The element of causation is satisfied intravirtually when the actus reus has the effect required by the penal provision within the virtual environment and extravirtually when it has that effect outside the virtual environment. Only virtual acts that satisfy the element of causation extravirtually can count as real crimes and can thus be sanctioned by real criminal law

Legal Philosophical Theories on the Nature of Rape -

Legal

philosophical theories on the nature of rape can roughly be divided into three

categories: conservative, liberal, and feminist theories. -

All 3 theories agree that rape should be prohibited because it causes harm. Harm has been defined by Feinberg as a wrongful setback to a welfare interest. Welfare interests are those interests that form the basic requisites of one’s well-being. The abovementioned three legal philosophical theories on the nature of rape disagree about which welfare interest is set back by rape and why rape is wrong. It is for this reason that their interpretations of the elements of the crime of rape differ, and therefore, they have different opinions on what counts as a rape.

-

The 3 theories: 1. Conservative theories: These theories views rape as a kind of trespass onto property. In this view, women belong to and acquire social status in virtue of their relationships to men, e.g., their husband, father, or brother. These men have an interest in women’s reproductive capacities and hence in their sexuality. It constitutes a “contamination” of a man’s property as well as a possible ruination of the bloodline. What makes rape wrong in the conservative view is not that the woman did not consent to the intercourse but that the man to whom the woman belongs did not consent to the intercourse. This explains why, in this view, a man cannot rape his own wife. 2. Liberal theories: They view rape as a form of battery, which is understood as the unlawful touching of another person without his or her consent. In the liberal view, every person has an interest in, and a corresponding right to, bodily integrity. What makes rape wrong in the liberal view is that the person him- or herself has not consented to the intercourse.

3. Feminist theories: Supporters of feminist theories claim that almost all rapists are men and almost all rape victims are women and, therefore, they believe that liberals are wrong in defining rape in gender-neutral terms. There are two main perspectives: o L  iberal feminists focus on the harm that rape does to individual women. They pay attention to the physical, emotional and psychological consequences of rape. Liberal feminists view rape as degradation. What makes rape wrong in the liberal feminist view is not only that the woman has not consented to the intercourse but also that the perpetrator dehumanizes, devalues, and disrespects her. o R  adical feminists focus on the harm that rape does to women as a group: it degrades women as a class. Rape harms because it is an instance of class-based subordinati...