Law Commons^™

Improving Law Enforcement’S Victim-Centric Responses To Sexual Assault: Global Best Practice Catalog, Ayesha Ashraf, Sebastián Galleguillos Agurto, Frederick Geyer, Kamela Gjoka, Jasmine Hwang, Stanley Montinat, Jessica Moor, Pierre Reyes, Tara Ventimiglia, Hongda Xu

Publications and Research

This catalog was compiled as part of a U.S. State Department Diplomacy Lab Project entitled “Improving Law Enforcement’s Victim-Centric Responses to Sexual Assault,” in fall semester of 2019, for American Citizens Services, US Embassy Bangkok. It is intended to cover best practices in law enforcement response to sexual assault across the globe, including laws, policies and programs.Ten multilingual graduate students in the capstone seminar of the Master of Arts Degree Program in International Crime and Justice at John Jay College of Criminal Justice (CUNY) established criteria for inclusion and standardized elements for each entry in this catalog. The ultimate aim …

Select Criminal Law And Procedure Cases From The U.S. Supreme Court's 2018-2019 Term, Eve Brensike Primus, Kristin Froehle

Articles

Although the 2018-19 Term at the Supreme Court did not include any blockbuster rulings like Carpenter v. United States, the Court issued a number of significant criminal law and procedure rulings. It addressed warrantless blood-alcohol testing, the dual-sovereignty doctrine, the right to trial by jury, ineffective assistance of trial counsel, questions of incorporation, prisoners' competence to be executed, permissible methods of execution, and some important statutory interpretation questions. Looking back on the Term, Justice Gorsuch clearly solidified his position as the libertarian "swing" vote in criminal procedure cases. He joined the liberals to uphold a defendant's right to trial …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

The "Statutory Rape" Myth: A Case Law Study Of Sexual Assaults Against Adolescent Girls, Isabel Grant, Janine Benedet

All Faculty Publications

This article examines three years of Canadian case law involving sexual offences against adolescent girls between the ages of twelve and seventeen inclusive, with a view to identifying the types of cases that are making it to court, whether these cases are resulting in convictions, and what are the types of sentences being imposed on individuals convicted of these offences. A significant majority of cases under review involved men considerably older than the complainant. The average age difference between the accused and the complainant was nineteen years and, where family members were excluded, 15.6 years. The small number of cases …

Awareness Of Sex Offender Registration Policies And Self-Reported Sexual Offending In A Community Sample Of Adolescents, Cynthia J. Najdowski, Hayley M. D. Cleary

Psychology Faculty Scholarship

Sex offender registration laws are widely implemented, increasingly restrictive, and intended to serve both specific and general deterrent functions. Most states have some form of policy mechanism to place adolescents on sex offender registries, yet it remains unclear whether adolescents possess the requisite policy awareness to be deterred from sexual offending. This study examined awareness of sex offender registration as a potential sanction and its cross-sectional association with engagement in several registrable sexual behaviors (sexting, indecent exposure, sexual solicitation, and forcible touching) in a community sample of 144 adolescents. Results revealed that many adolescents were unaware that these behaviors could …

Law Symposium: Adjudicating Sexual Misconduct On Campus: Title Ix And Due Process In Uncertain Times, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Gathrite V. Eighth Jud. Dist. Ct., 135 Nev. Adv. Op. 54 (Nov. 7, 2019), Skylar Arakawa-Pamphilon

Nevada Supreme Court Summaries

For purposes of NRS 172.135(2), evidence that has been suppressed in justice court proceedings on a felony complaint is not “legal evidence,” and therefore, may not be presented to a grand jury. The Court will grant an exception to this rule if the suppression was reversed before the grand jury proceedings.

Witter V. State, 135 Nev. Adv. Op. 73444 (Nov. 14, 2019), John Bays

Nevada Supreme Court Summaries

The Court determined that (1) a judgment of conviction containing a restitution provision must contain the specific amount of restitution required; (2) a judgment of conviction containing an indeterminate restitution provision is not a final judgement for purposes of appeal or for purposes of triggering the deadline for filing a habeas petition; and (3) the principle of finality requires that even when such an error is made, if the defendant treats the judgment as final by litigating, the defendant is estopped from later arguing that judgment was not final and that subsequent proceedings were null and void for lack of …

The First Amendment And Speech Urging Suicide: Lessons From The Case Of Michelle Carter And The Need To Expand Brandenburg'S Application, Clay Calvert

UF Law Faculty Publications

This Article examines the level of First Amendment protection that applies when a defendant-speaker is charged with involuntary manslaughter based on successfully urging a person to commit suicide. The Supreme Judicial Court of Massachusetts’ February 2019 decision in Commonwealth v. Carter provides a timely analytical springboard. The Article argues that courts should adopt the United States Supreme Court’s test for incitement created a half-century ago in Brandenburg v. Ohio before such speech is deemed unprotected by the First Amendment. It contends this standard is appropriate even in involuntary manslaughter cases where intent to cause a specific result is not required …

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct …

The Effects Of Criminal Embeddedness On School Violence In Brazil, Elenice De Souza De Souza Oliveira, Braulio Figueiredo Alves Da Silva, Silvio Segundo Salej Higgins

Department of Justice Studies Faculty Scholarship and Creative Works

This study examines the influence of criminal embeddedness on the intensity of criminal behavior among primary and secondary school students in a large Brazilian city. A database conceived by the Center for the Study of Crime and Public Security at the Federal University in Minas Gerais is used to analyze the involvement of youths displaying delinquent behavior at home or at school and how school performance and peer relationships are effected. Based on differential association and learning theories, the main hypotheses are (1) the greater the criminal embeddedness, the lower the degree of school satisfaction as well as future expectation …

Unconstitutionally Redefining Murder: Ca Legislature Takes A Significant Overstep With S.B. 1437, Alex Rifkind

GGU Law Review Blog

Senate Bill 1437 (“S.B. 1437”), effective January 1, 2019, substantially changed the law relating to accomplice liability under the felony murder rule (the “FMR”) and the doctrine of natural and probable consequences. State prosecutors have challenged S.B. 1437 as an unconstitutional amendment of Propositions 7 and 115, and as a violation of the separation of powers. Polarized rulings from the state’s trial courts suggest a dispositive California Supreme Court decision is forthcoming to address the divide. Social policy considerations weigh heavily on the controversial issues engendered by this bill and will likely influence adjudication of the legislature’s authority to …

An Intellectual History Of Mass Incarceration, Alice Ristroph

Faculty Scholarship

No abstract provided.

Cybersecurity-Beyond Data Protection, Amy J. Ramson, Ez Tech Assist

Open Educational Resources

No abstract provided.

Misdemeanor Appeals, Nancy J. King, Michael Heise

Cornell Law Faculty Publications

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

We provide the first estimate of the rate of appellate review for misdemeanors, concluding that appellate courts …

Newson V. State, 135 Nev. Adv. Op. 50 (Oct. 10, 2019), Richard Young

Nevada Supreme Court Summaries

The Court determined although the district court has broad discretion to settle jury instructions, the failure to instruct the jury on a defendant’s theory of a case that is supported by any evidence warrants reversal unless the error was harmless.

State Bd. Of Parole Comm’Rs V. Second Judicial Dist. Court, 135 Nev. Adv. Op. 53 (Oct. 24, 2019) (En Banc), Dallas Anselmo

Nevada Supreme Court Summaries

The Court confronted several issues in this methodical decision. The Court addressed standing and discretionary review in the context of writ petitions. It next analyzes and determines the applicable version of a particular NRS section. Finally, the Court interprets the applicable version of the statute. The opinion culminates in the granting of a writ of mandamus petition for the Parole Board to correct an inaccurate application of law at the district court level.

Do Criminal Minds Cause Crime? Neuroscience And The Physicalism Dilemma, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant's mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products of …

The Full Picture: Preliminary Examinations At The International Criminal Court, Sara Wharton, Rosemary Grey

Law Publications

The International Criminal Court’s (ICC) Office of the Prosecutor (OTP) has described the preliminary examination as one of its “three core activities,” alongside investigating and prosecuting crimes under the Rome Statute of the International Criminal Court (Rome Statute). Honing in on this once-mysterious “core activity,” this article contributes to the recently expanding literature on preliminary examinations at the ICC by providing a much needed comprehensive picture of all preliminary examinations conducted to date. The twentieth anniversary of the court’s founding treaty, the Rome Statute, provides a timely opportunity for this review as part of the broader effort to take stock …

Terrorism And Its Legal Aftermath: The Limits On Freedom Of Expression In Canada’S Anti-Terrorism Act & National Security Act, Percy Sherwood

FIMS Publications

This analysis aims to demonstrate how s. 83.221 in Bill C-51 is likely to violate freedom of expression guaranteed under the Charter. The first section employs the two-step Irwin Toy analysis to show that the speech offense infringes upon s. 2(b) of the Charter. The second section uses the Oakes test to determine whether the breach of freedom of expression is a reasonable limit. On whether the speech offense can be justified under s. 1 of the Charter as a reasonable limit, the legislation fails at the third and fourth step of the Oakes test. Section three of this paper …

Systems Of Crime And Castigation: A Reevaluation Of The Punishment Bureaucracy, Lia Pikus

Independent Study Project (ISP) Collection

Models of reform within the criminal justice system often operate from a top-down perspective, affecting change on surface levels to attempt to better the system. One example of such a reform is Scotland’s Presumption Against Short Sentences. These kinds of changes, as I will illustrate in this paper, both fall short of achieving genuine change and often produce negative side effects. However, a few countries have made deeper changes to the ways their systems both view and handle crime and punishment; one such system is Norway. Through rehabilitation and restorative justice, Norway has greatly decreased rates of recidivism, increased social …

Law Versus Action: How Five Cape Town Organizations Are Combating High Rates Of Sexual Assault And The Failure Of Progressive Sexual Offences Legislation, Anna Tinker

Independent Study Project (ISP) Collection

This Independent Study Project (ISP) seeks to understand the work various Cape Town organizations are doing to help survivors of sexual assault gain access to justice. Previous research finds that social norms defining masculinity as well as rape myths and stereotypes lead to the high levels of gender-based violence (GBV) in South Africa. This research led to my hypothesis that organizations fighting GBV would target these norms to help survivors access the justice system that so frequently ignores them. Eight organizations were contacted requesting an interview to discuss their work and two agreed to participate. Participants were asked to discuss …

Section 3: Criminal Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Bus Robberies In Belo Horizonte, Brazil: Solutions For Safe Travel, Elenice De Souza De Souza Oliveira, Mangai Natarajan, Bráulio Da Silva

Department of Justice Studies Faculty Scholarship and Creative Works

This study examines the spatial patterns and other situational determinants leading to the high number of bus robberies in Belo Horizonte. Main research questions include patterns of robberies, spatial concentration, locations prone to robberies, and environmental characteristics therein. This study also provides a variety of safety measures based on the Situational Crime Prevention approach. The Rapid Assessment Methodology (RAM) was employed using both quantitative and qualitative data. It involves spatial analysis, direct observation of hot spots using a safety audit protocol, and focus group discussions with key participants. Bus robberies involve minimum risk and low detection and arrest. The “hottest …

Castillo V. State, 135 Nev. Adv. Op. 16 (May. 30, 2019), E. Sebastian Cate-Cribari

Nevada Supreme Court Summaries

The Court determined that (1) a defendant is death-eligible in Nevada once the State proves beyond a reasonable doubt the elements of first-degree murder and at least one statutory aggravating circumstance; and (2) the beyond-a-reasonable-doubt standard does not apply to the weighing of aggravating and mitigating circumstances.

Bowser V. State Of Nevada, 135 Nev. Adv. Op. 15 (May 16, 2019), Andrew Brown

Nevada Supreme Court Summaries

The Court overruled precedent which held that a presumption of vindictiveness applies when a judge imposes a longer sentence after a new trial.

‘It’S Kinda Punishment’: Tandem Logics And Penultimate Power In The Penal Voluntary Sector For Canadian Youth, Abigail Salole

Publications and Scholarship

This paper draws on original empirical research in Ontario, Canada which analyses penal voluntary sector practice with youth in conflict with the law. I illustrate how youth penal voluntary sector practice (YPVS) operates alongside, or in tandem with the statutory criminal justice system. I argue that examining the PVS and the statutory criminal justice system simultaneously, or in tandem, provides fuller understandings of PVS inclusionary (and exclusionary) control practices (Tomczak and Thompson 2017). I introduce the concept of penultimate power, which demonstrates the ability of PVS workers to trigger criminal justice system response toward a young person in conflict …

Chicago's School Closings: From A Civil Rights Perspective To A Human Rights Perspective, Lincoln Hill

Center for the Human Rights of Children

In May 2013, the Chicago Board of education approved a plan to close 49 of the city’s elementary schools and one of its high schools1 resulting in the largest mass school closure in United states history.2 Those against the school closings argued that the decision was discriminatory considering the racial and socioeconomic disparities of children directly affected. With Black children representing just 40% of the district’s students, 80% of the children impacted by the closings were Black students living in predominantly Black and impoverished neighbor- hoods in the south and West sides of the city.

Despite national criticism and protests …

Sudden, Forced, And Unwanted Kisses In The #Metoo Era: Why A Kiss Is Not “Just A Kiss” Under Italian Sexual Violence Law, Rachel A. Van Cleave

Publications

#MeToo reports have revealed a significant number of forced kisses typically by men in positions of authority. Previous scholarship in the US has viewed such instances as to rare or too minor to be worthy of criminal sanctions. Indeed, there are no such reported criminal cases involving adults. However, in Italy, the Supreme Court of Cassazione has upheld sexual violence convictions for such forced kisses. This article analyzes these cases and investigates the types of considerations the Italian Supreme Court includes in its evaluation of these situations. This article also suggests specific aspects of US laws that could benefit from …

Hager V. State, 135 Nev. Adv. Op. 34 (Aug. 29, 2019), Brittney Lehtinen

Nevada Supreme Court Summaries

The Court determined that (1) Defendants who successfully complete mental health specialty court diversion programs pursuant to NRS § 176A.250–265 are not “adjudicated mentally ill” under NRS § 202.360(2)(1); and (2) that the jury should have been instructed that under NRS § 202.360(1)(d), an “unlawful user” is someone who regularly uses substances over a period of time consistent with their possession of a firearm.