Law Review Article Balancing Me Too and Abolition Movement
Abstruse
In recent years, no area of criminal constabulary has received more public attention than the laws on sexual violence. Discussions about the need for reforms take exhibited a mobilizing forcefulness extending far beyond the legal community. From a legal perspective, these discussions business organisation intricate normative questions regarding the content of the right to sexual autonomy and the suitability of the consent paradigm to institute the limitations of its protection nether criminal police force. At the same time, they ultimately business organisation the question of gender-related societal power hierarchies. Acknowledging these broader socio-political dimensions allows us to cover the highly contentious manner in which this debate is ofttimes conducted. This Special Issue attempts to analyze from a transnational perspective both the fundamental legal and socio-political questions in the current discussions on sexual violence and criminal justice. A recurring theme is the question equally to whether criminal law tin can exist used not but every bit an instrument of repressive social command, simply also every bit a means of ability-critical – even emancipatory – social policy.
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/four.0/), which permits unrestricted re-utilize, distribution, and reproduction in any medium, provided the original piece of work is properly cited.
A. Introduction
#MeToo. "El violador eres tu (The rapist is you)." #IBelieveWomen. #balancetonporc (#RatOutYourPig). "#米兔 (literal translation: Rice Bunny, phonetic: Me Likewise). "Consent is king." #ЯHеБоюсьСказать (#IAmNotAfraidToSpeak). #WhyIDidntReport. "No ways no." #ANAKAM (#MeToo). #YesAllWomen. #Akademiuppropet (#AppealToAcademia). #MyDressMyChoice. #QuellaVoltaChe (#ThatTimeWhen). "If it's not a yes, information technology'south a no." #Aufschrei (#Outcry). #TimesUp.
These are examples of some of the near prominent hashtags and slogans seen on social media platforms and protest banners all over the globe during recent years. In fact, it seems that very few legal topics have received as much attending—particularly outside the legal community—equally crimes of sexual violence. The discussions surrounding these hashtags and slogans have brought to light mainly three things. First, they have demonstrated how widespread the experience of sexual violence is.Footnote 1 2d, they have prompted the public to reconsider which kinds of behaviors found a violation of a person's sexual autonomy.Footnote 2 3rd, the hashtags tin be seen as bear witness of the increasing frustration of those afflicted past sexual violence with the response, or lack thereof past, societies, legislators, and courts.Footnote iii
As the examples given to a higher place testify, the #MeToo movement is the most prominent but by no means only example. Edifice on older initiatives—in particular past activist and community organizer Tarana Burke—actress Alyssa Milano took the allegations confronting flick producer Harvey Weinstein equally an opportunity to urge victims of all forms of sexual violence to apply the hashtag #Metoo to come forwards.Footnote iv Other hashtags followed and older online initiatives confronting sexual violence gained momentum as a consequence. Ofttimes times, these campaigns have led to calls for criminalization or harsher penalties.Footnote 5
In some countries, such as India or Spain, peculiarly grave individual incidents of sexual violence sparked big-scale online and offline protests and led to a renewal of long-standing demands for a reform of the criminal law provisions on sexual violence. Not least considering of the political pressure stemming from a mass mobilization on social media, the demands were finally heard and ultimately resulted in legislative changes in both countries.Footnote 6
These developments can be viewed as a form of digital grassroots activism, where the political agenda is no longer gear up exclusively by institutionalized actors such as political parties and organizations, but past curt-term occasional coalitions of individual activists and ceremonious social club actors who mobilize past means of social media and tin thereby exert considerable political influence.Footnote 7
Yet the debates surrounding these different movements and initiatives have also triggered controversial discussions on the suitability of criminal constabulary to answer to sexual violence—in particular when taking into account victims' interests.Footnote eight From a feminist perspective, the question comes to heed equally to whether the master's tools really will dismantle the master's house.Footnote 9 Or are the attempts to use criminal police force in an emancipatory style doomed to fail because they are ultimately perpetuating institutions and processes that are themselves products of the aforementioned hegemonic structures that produce gendered sexual violence?Footnote 10
I. The New Prototype of Consent
On a broader level, all of these discussions mirror important changes in the perception of the right to sexual autonomy and its legal protection. Over the concluding decades, societal conceptions of sexuality have moved away from collective determinations of morality and decency towards individual sexual autonomy.Footnote 11 These developments, together with primal shifts in our sensation of gendered ability hierarchies in societies, have led to an understanding that the legal regulation of sexuality should exist based on the idea of consent.Footnote 12
In the expanse of international human rights law, the paradigm of consent is now enshrined in the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence—the so-called "Istanbul Convention"—which requires member states to ensure that "non-consensual acts of a sexual nature" are criminalized.Footnote 13 As a issue, numerous states have recently moved abroad from the requirement of forcefulness or threat and introduced a consent-based sexual offense model. While some states, such as Germany, take introduced a "No means No" approach,Footnote 14 others, such equally Sweden, have gone a pace further and implemented an affirmative consent based "Only Yes means Yes" approach.Footnote xv
These legislative changes, praised and historic by many feminist lawyers and homo rights activists, have as well caused controversial debates on over-criminalization and "carceral feminism" in academic also every bit public discussions.Footnote sixteen Furthermore, these international developments have also been met with stark political resistance and caused destructive backlash, as the recent withdrawal of Turkey from the Istanbul Convention demonstrates.Footnote 17
The laws on sexual offenses have become a highly symbolic field of socio-political debate. The idea that it is merely a question of legal-technical expertise and the correct formulation of laws, though comfortable to many lawyers, clearly turns out to be an illusion. In our view, the debate ultimately concerns questions effectually the negotiation, and re-negotiation, of gendered power hierarchies in guild.
2. The Non-Physical Dimension of Sexual Autonomy
While digitalization has without a doubt boosted diverse forms of activism relating to accountability for sexual violence and criminal justice reform, it has also enabled new forms of violations of sexual autonomy occurring in the virtual sphere.Footnote 18 Examples include the distribution of various forms of image-based sexual abuse, such as "revenge porn."Footnote 19 In many countries, these behaviors are non criminally sanctioned or at to the lowest degree non as sexual offenses. This finding—again—led to increasing demands for criminalization. Contempo examples of criminal law reforms triggered by such demands include revenge porn in AustraliaFootnote 20 and "upskirting" in Federal republic of germany.Footnote 21 In improver, there are ongoing legislative proceedings aimed at criminalizing "dick pics" and other forms of not-consensual sexting in Finland.Footnote 22
These developments have not only raised contentious debates on the demand for farther criminalization but also on the scope of sexual autonomy, moving away from an exclusively physical concept. The increasing sensitization for the non-physical dimensions of the right to sexual autonomy is also evident in the ongoing discussions about exact forms of sexual harassment, especially and then-chosen catcalling. Amendments to the criminal law prohibiting verbal sexual harassment have already been passed in France,Footnote 23 while the need for such legislative changes is currently being vividly debated in other countries, such as the U.K. and Germany.Footnote 24
B. Overview of the Special Issue
We started working on this Special Event with these observations in mind. Our aim was to provide a multifaceted motion-picture show of what we view as the central discussions in the expanse of sexual violence and criminal justice. We did not want to limit this give-and-take to academic voices, but besides include voices from practice and persons who see themselves as activists. Neither did we want to focus exclusively on criminal law approaches, but also accept into consideration analyses from a constitutional law and human rights or gender studies and sexology perspective. Further, nosotros decided non only to encompass voices in favor of the reforms of sexual offenses and those who call for further adjustments of the criminal law in the interest of a comprehensive protection of sexual autonomy, but also those who are highly critical with regard to the declared gaps in protection and the demands for reforms and who view these calls equally overestimating the positive furnishings of criminal law. And lastly, we of course did not want to reduce our analysis of the core issues of sexual violence and criminal justice to perspectives from Germany or even from the Global North.
At the same time, we were aware that we were pursuing an ideal that—in particular within the limits of a Special Issue—could just be partially and incompletely realized. Of grade, many questions are not addressed in this outcome and perspectives and voices are missing. To name simply one void that we find particularly regretful: We are missing a contribution on legal approaches to dealing with sexual violence that go across criminal police force and which practice non follow the grammer of retributive justice but try to live up to an ideal of restorative or transformative justice. Unfortunately, our efforts to find authors for such a contribution were ultimately unsuccessful.Footnote 25 Furthermore, nosotros consciously decided against including the topic of sexual violence confronting children as the discussion revolves around fundamentally different questions which would get beyond the scope of the Special Issue as we imagined information technology.
Additionally, despite all efforts to create a diverse and multifaceted movie, we cannot and practice not want to claim that fifty-fifty the perspectives included in this issue are represented equally. It remains a highly subjective selection that reflects our own interests, viewpoints and origins in many ways—both with regard to the topics dealt with as well every bit the contributing authors. The picture our Special Issues paints of sexual violence and criminal justice in the 21st century is therefore unmistakably fatigued from a legal, specifically a criminal law perspective, which also remains a predominantly German, white, and bookish perspective. Farther, our pick reveals something else: In the spectrum of the—often times extremely controversial—discussions concerning the demand for an improved protection from sexual violence through new or reformed criminal offenses, we find ourselves in the military camp of those who consider the demands for reforms and the developments in this regard to be in principle justified. Despite all the skepticism and reluctance which we share with regard to the effects of a criminal law arroyo, we do not desire to categorically distance ourselves from this instrument. The premise assumed in nigh of the contributions is that criminal law can exist used in a self-enlightened disquisitional way to challenge structural power asymmetries. Moreover, we are fifty-fifty convinced that this is necessary if the equal protection of the right to sexual autonomy is to exist guaranteed. As long as a criminal prohibition remains the fundamental legal means past which a society expresses that a certain behavior is considered an intolerable violation of the rights of others, it is hard in our view to justify a more skeptical approach towards criminal justice when information technology comes to violations of the right to sexual autonomy as compared to other rights. Nosotros realize of course that we are speaking from our perspective equally German criminal police scholars with a criminal justice organisation in mind that—despite all its flaws—nosotros practise not deem to exist beyond repair.
Nonetheless, nosotros are aware that the belief in the possibility and the benefits of such a progressive use of criminal police cannot be taken for granted. For many, the term "progressive criminal law" may already serve equally an expression of a dangerous, moralizing, illiberal politicization of police force.Footnote 26 Likewise, information technology may be considered unacademic to speak of a "belief" in this respect instead of citing normative or empirical arguments for or against the possibility or the do good of such an approach. For now, we will have to accept this criticism as this introductory Article is not the advisable identify to justify these premises; at this point it only seems necessary to united states of america to name them.
We have divided the Special Issue into iv sections: Defining Sexual Autonomy and the Consent Paradigm (I.), Sexual Autonomy and the Limits of Criminal Justice (II.), Social Movements and their Influence on Sexual Violence and Criminal Justice (3.), Sexual Violence in International Criminal Law (IV). Below nosotros volition innovate our main thoughts and question backside each of these sections as well as the contributions in it.
I. Defining Sexual Autonomy and the Consent Prototype
All contempo law reform processes regarding acts of sexual violence are intended to ensure the protection of sexual autonomy. But what is sexual autonomy? A common reply would probably exist that information technology entails the right to engage in consensual sexual acts and to be free from not-consensual acts.Footnote 27 But this seemingly piece of cake reply quickly leads to a number of other intricate questions: What does consent hateful? Does information technology require the victim to say "no" or the perpetrator to wait for a "yeah"? What nigh persons who are deemed unable to consent due to constitutive deficits—are they excluded from a cocky-determined expression of sexuality? Are there situational or structural contexts in which it is impossible to speak of consent? Do these contexts include all forms of dependency or diff power relations betwixt the people concerned, such as the being of professional hierarchical relationships? Does the consent paradigm leave room for the design of sexual contacts that appear aberrant, repulsive, or degrading from the perspective of a heteronormative or even a incomparably feminist perspective?Footnote 28 Is at that place a danger that the consent paradigm volition possibly pb to a juridification of sexuality, which in turn becomes an harm to a subjectively fulfilling sex activity life of all persons involved?Footnote 29 Does the consent image perhaps impose a form of rationality in an area that was previously considered to be decidedly remote from rationality, fifty-fifty a reserve of sensual and impulsive experiences? In other words, is there a possibility that the consent paradigm turns against itself and exhibits paternalistic features threatening individual liberty?
The three contributions in the first section of the Special Consequence tackles these questions of sexual autonomy and consent from 3 different angles.
In the first Article of this section, Dana-Sophia Valentiner explores "The Human being Correct to Sexual Autonomy." She shows how the beforementioned paradigm shift from ideas of decency towards concepts such as autonomy and consent posed challenges for the police on various levels. At the core of her analysis lies the thought that an autonomy-based understanding of self-determination requires more than than merely the state-guaranteed protection from sexual violence, coercion, and discrimination. In society to protect the correct to control i's ain body too as to control the involvement in sexual interactions with others, states are obliged to accept measures that protect the preconditions for exercising self-determination. Co-ordinate to Valentiner, this requires, in particular, sexual instruction measures and reliable access to information and medical services.
In the second contribution, Rona Torenz discusses "The Politics of Affirmative Consent" from a gender and sexuality studies perspective. Every bit Torenz delineates, the introduction of the "No means No" standard in the German penal code in 2022 was welcomed by many sides as a consistent implementation of feminist demands and thus of the right to sexual autonomy. Yet, since the early 1990s at the latest, the concept of "No means No" has been farther adult in the direction of an "only Yes means Yes" approach. In contrast to "No means No," which defines the circumstances under which sex should exist criminalized as sexual violence and leaves open up what "morally correct" sex activity could look like, "Yep means Yes" makes positive statements almost what "adept" sex should incorporate. The affirmative consent approach relies on a contract-like model of negotiation in sex activity and thus implicitly devalues other forms of sexuality. Equally Torenz argues, affirmative consent is primarily considered as a social discourse and a result of cultural also every bit social practices, which produce knowledge within existing power relations. This knowledge can take stabilizing and/or transformative effects on these power relations. Therefore, affirmative consent as a critical discourse tin can reproduce heteronormative notions of sexuality and gender.
In the last contribution of the section entitled "'Sexual practice Must Be Voluntary': Sexual Communication and the New Definition of Rape in Sweden," Linnea Wegerstad takes a closer look at the legal state of affairs in Sweden, where rape was redefined based on the benchmark of nonvoluntary participation in 2018. This development forms part of a larger global trend of replacing outdated sexual practice criminal offense regulations with laws that accurately correspond to late modernistic ideas most gender equality, sexual self-determination, and consensual sexual practice. The Article analyzes the representation of rape in the new constabulary and in the legal discourse in Sweden and demonstrates that rape is represented as a matter of option and communication in sexual situations. Wegerstad argues that the new rape law poses issues with regard to sexual communication and gray zones in sexual encounters. She suggests that in guild to understand this new representation of rape, further exploration is necessary both into the furnishings of sexual violence existence framed as a thing of private choice, consent, and advice in tardily modernity and into the function of criminal law in an era of thin normativity. The Article concludes that the new rape law sends a clear message almost what sex activity should exist—namely, voluntary—but does not accurately describe the criminal offence and the behavior that deserves criminal censure.
Ii. Sexual Autonomy and the Limits of Criminal Justice
A clear understanding of what sexual autonomy entails forms the basis of a consequent understanding of the kinds of behaviors that violate or endanger sexual autonomy. In the traditional understanding, sexual offences required an human activity of forcefulness or threat. A view that is consistently oriented towards sexual autonomy, on the other manus, is able to recognize the violating dimension of other behaviors, such as deceptions in the context of sexual contacts or verbal sexual attacks. Furthermore, in the age of digitalization, new forms of sexual violence have emerged and gained increasing practical relevance. The phenomenon of "revenge porn" and other image-based forms of sexual abuse serve as examples. This raises a number of important questions around the conceptualization of sexual autonomy in not-physical terms.
At the aforementioned time, it is questionable whether the purpose of criminal law is to criminalize all such violations and endangerments. Rather, it is actually a hallmark of liberal criminal constabulary that non all interpersonal violations and threats to the law are sanctioned with the "terminal resort" of criminal justice, only that, in minor cases, other legal and extra-legal conflict resolution mechanisms take consequence. This raises the question as to the existence of gaps in protection that brand legislative activity necessary. The debate around the limits of the protection of sexual autonomy through criminal law is extremely controversial. It is a discussion in which central questions of criminal police theories are renegotiated under specific circumstances: What is the purpose of criminal law? Is it legitimate to create criminal offences whose function is essentially limited to symbolism? Tin criminal law be an instrument of progressive social developments or must it be limited to edifice on the existing social conventions of the population?
Finally, the limits of a criminal justice response to sexual violence are peculiarly apparent when looking at the experiences of victims during criminal proceedings. Despite the fact that there have been substantial improvements in the last decades, this remains a cardinal surface area of critique. In recent times, human rights conventions and international treaties have created incentives and obligations to recognize victims' rights, which have subsequently been incorporated into national criminal procedural law.Footnote xxx Yet, the adjustment of criminal procedural police force to the rights and interests of victims has also been subject to stark criticism. Critics raise the question as to whether this development does not inevitably jeopardize the painstakingly acquired balance between the interests of the legal community in the constructive investigation and punishment of criminal offenses on the one hand and the interests of the defendant on the other.Footnote 31
The contributions in this section seek to address these challenging questions regarding the limits of criminal justice.
In the commencement contribution, Beatriz Correa Camargo and Joachim Renzikowski, explore "The Concept of an 'Act of a Sexual Nature' in the Criminal Constabulary." As the authors demonstrate, all jurisdictions presume a concept of an act of a sexual nature by regulating sexual crimes. Until the sex revolution and feminist movements for equality in sexual relations, criminal law was mostly concerned with specific types of sexual acts, particularly non-marital sexual intercourse. With the paradigm shift of recent years, criminalization tends to comprehend all acts of a sexual nature with another person without her valid consent. Whether the law contains a definition of a sexual act or non, borderline cases show that neither merely objective criteria nor purely subjective elements tin serve equally ground for the clarification of the behave under prohibition. The authors hence try to overcome this arrears in the criminal police force theory. They argue that sexual acts should not exist understood through the metaphor of a "flick," as German legal scholars believe, but with the metaphor of a script played out by an actor, as sexual theorists put it.
In the following contribution, Nora Scheidegger takes a expect at the question of "Balancing Sexual Autonomy, Responsibility, and the Right to Privacy: Principles for Criminalizing Sex by Deception." She argues that due to the reconceptualization of rape and other sexual offenses as violations of a person's sexual autonomy, consent has replaced the element of strength as the focal betoken of rape law. This shift to a consent model has prompted heated discussions about the scope of sexual autonomy and the trouble of "rape past charade" in legal scholarship. Most theorists of consent contend that certain forms of charade invalidate whatsoever token of consent in the same manner as forcible sexual contact. However, in that location is besides a widely shared concern that criminalizing sex-by-charade poses serious problems in terms of drawing the line between deceptions that violate sexual autonomy and deceptions that do not. Scheidegger offers an account of principles that should be considered when examining legal cases related to sex-by-charade. These principles are examined and articulated in a mode that strike a residual betwixt responsibility, autonomy, and other principles and rights, such as the right to privacy.
Subsequently, Kim Barker and Olga Jurasz, analyze the phenomenon of "Sexual Violence in the Digital Historic period" and pose the question as to whether this constitutes a criminal law conundrum. The authors note that the emergence of new interactions, notably those online, has led to the parallel evolution of criminal behaviors—not all of which are captured by the current legal framework. They thus accost the challenge posed to criminal constabulary by the emergence of technologically facilitated violence, specifically its sexualized online forms. Barker and Jurasz draw upon—contentious—national examples of attempts to regulate confusing sexual violence perpetrated through digital ways, with particular attention existence given to provisions in the UK, Frg, and France. They debate for cautious yet specific criminalization of trigger-happy behaviors online whilst considering the broader criminal liabilities of all actors involved in the facilitation and perpetration of digital sexual violence.
In the concluding Commodity of this section, Anne-Katrin Wolf and Maja Werner turn towards criminal procedural constabulary in their contribution on "Victims' Rights Looking Good on Newspaper: How Criminal Prosecution in Frg Fails Victims of Sexual Violence." Equally the authors argue, whether in Germany or abroad, victims of sexual violence typically played only a minor part in criminal proceedings, serving primarily as witnesses. This led to victim disempowerment and a paternalistic method of state protection of victims. Yet, during the last decades, this perception underwent major changes in many European legal systems, owing to a rising awareness of victims' needs, especially in cases of sexual violence. International and European conventions and treaties played a major function in this development past establishing an international regulatory framework. To implement these international standards, domestic criminal laws have changed significantly on both the substantive as well equally the procedural level. Today, Deutschland's criminal procedural police contains many mechanisms for protecting victims. Still, in cases of sexual violence, the implementation of these mechanisms leaves much to desire due to the effect of gender-stereotypes and rape myths. This leads Wolf and Werner to conclude that in sexual violence cases, the law in action ultimately fails to run into the international requirements.
III. Social Movements and their Influence on Sexual Violence and Criminal Justice
A particularly interesting development concerns the influence of social movements and digital forms of activism on the recent reforms of sexual offences in different countries. The demands for the elimination of gaps in legal protection and changes in applying these laws are non new. However, they are at present being voiced on social media platforms and met with such a high level of public recognition and approval that they can no longer exist ignored by the executive and legislative co-operative. As has been elaborated above, these forms of activism take served as an influential tool in cartoon attention to the fact that violations of sexual autonomy are ubiquitous while highlighting the shortcomings of criminal justice systems in addressing such violations. Nonetheless, some contend that these movements embody a type of "carceral feminism" ill-suited to accost the structural discrimination against women in our societies.
It is also noteworthy that in diverse countries, these movements were triggered by private crimes which were used to highlight structural problems in the society and the judiciary: The keywords Harvey Weinstein, New year's day's Eve in Cologne, La Manada (Wolfpack) Example, and Nirbhaya Case stand up for these private cases leading to a mobilization of various and quite heterogeneous social actors who were able to create a breakthrough moment in social and criminal law policy.
This poses a number of important questions: Why was the mobilization then successful in these cases? How can and should the effect of these forms of activism on criminal law and criminal justice practice be assessed? Can they be understood every bit emancipatory forms of participation in legislative reforms in democratic states? Can categories of disquisitional criminology such as moral entrepreneurs and moral panic help to sympathize these developments or practice they course part of a hetero-masculine discourse of delegitimization?
The contributions in this section aim to tackle these questions surrounding social movements and their influence on criminal justice reform in the area of sexual violence from very different perspectives.
In the first contribution entitled "'Progressive' Criminalization? A Sociological and Criminological Analysis of the High german 'No Means No' Model," Ralf Kölbel analyzes the developments that led to the reform of the sexual offenses provisions in the German language Penal Code from a criminological perspective. He argues that feminist activists, in close collaboration with some criminal law scholars, managed to take advantage of the mass media scandal of the events of New year's Eve in Cologne in 2015-16 to achieve the implementation of the "no ways no" model in Germany. The deficits of the previous laws, repeatedly asserted by the same actors, could hardly have been proven with sober empirical and sociological consideration. The commencement statistical surveys on criminal justice activities in the area of sexual offenses since the reform also showed that despite being hailed as a milestone, information technology had brought far fewer practical changes and improvements than its advocates had promised. A conventionalities in progressive criminal police force that is asunder from these criminological findings appears to be very problematic to Kölbel. His contribution tin can be viewed as representative of an influential strand of critique in Germany, which accuses the activists calling for reforms of the laws on sexual violence of too carelessly placing their hopes in a criminal justice approach.Footnote 32
In the 2nd contribution "Evaluating #MeToo: The Perspective of Criminal Law Theory," Tatjana Hörnle takes a closer look at the #MeToo movement. In doing so, she notes not only positive effects simply asserts some quite problematic features of the mobilization triggered via social media. In particular, she emphasizes that these movements can, through their spread and accomplish, achieve exclusionary furnishings that accept a similarly drastic affect on the denounced individuals' lives every bit land penalties. The problem, still, is that there are no comparable standards of due diligence for reviewing allegations before "imposing" such breezy sanctions. In add-on, the alleged perpetrators usually have little opportunity to defend themselves against the allegations. In these conflicts of estimation, which are primarily carried out via social media, there is no accepted authorization whose task it is to come up to a neutral, counterbalanced judgment on a matter of fact. Rather, an emotionalized partiality dominates.
Similarly, the reform of the criminal provisions on sexual offenses in Espana cannot be understood without taking into account the mobilization of broad sections of the population with the assistance of social media. In her contribution on "The Wolf-Pack Case and the Reform of Sex activity Crimes in Kingdom of spain," Patricia Faraldo Cabana analyzes how the Manada Case became a symbol of existing social and legal bug and at the same time a transformative moment for feminism in Spain. Moreover, her contribution shows the emotional significance that seemingly technical distinctions in sexual criminal police force can acquire with regard to their social reception. A primal betoken of business concern that led to mass protests was that the perpetrators in the Manada Case were only convicted of sexual assail, but non of rape, past the court of beginning instance. Regardless of the sentence of imprisonment imposed on the main perpetrators—which was really quite considerable from a comparative law perspective—this legal assessment was seen every bit an exemplary reflection of the sexist and victim-delegitimizing estimation of cases of sexual violence.
In the last contribution of this department entitled "Between Sexual Violence and Autonomy: Rethinking appointment of Indian Women's Motion with Criminal Police," Awantika Tiwari and Kalika Mehta turn towards India. They clarify how a very desperate case of sexual violence in 2012 became the starting point for large-scale protests and vocal calls for reforms of the sexual assault laws also as the criminal justice organization'southward response to sexual violence. Notwithstanding, the disillusionment that Indian activists subsequently experienced also becomes very clear in this contribution: From the reduction of the actual demands in the legislative process to the distortion of the legislative regulation in criminal justice exercise—virtually hopes that the reform would become a crucial gene with regard to more than fundamental change in gender relations and the protection of women'due south sexual autonomy in Indian club seem to take been disappointed for the time beingness. The authors therefore emphasize the importance of framing sexual violence not only equally a criminal wrong for which individuals have to be held responsible, but equally the result of social inequality and injustice that needs to be addressed in other means.
IV. Sexual Violence in International Criminal Law
Lastly, an assay of sexual violence and criminal justice in the 21st century would exist incomplete without taking a look at the developments in international criminal law:
It is clear that sexual violence is a constant feature of armed conflicts. For a long time, it was viewed as an unfortunate yet unavoidable by-product of war. Today, the ascendant understanding of conflict-related sexualized violence is the "weapon of war" narrative: Sexualized violence during conflict is employed strategically by rational actors.Footnote 33 The change in our conceptual understanding of wartime sexualized violence goes along with some other respond to this phenomenon: Importance is now increasingly placed on criminal accountability and the symbolic expressive function of a criminal judgement imposed on individuals responsible for sexual violence as a crime under international law. It is argued that a criminal confidence is necessary to arrive unequivocally clear that such acts are a grave injustice that cannot be justified under whatever circumstances.
Since its creation, the International Criminal Courtroom (ICC) has sparked great hopes for an internationally visible, game-changing path towards accountability for crimes of sexual violence in conflict situations. The ICC has often been lauded for its broad inclusion of sexual and gender-based violence as crimes under international law. However despite its robust legal framework, the actual enforcement of these provisions has—at least initially—been a source of thwarting for many observers.Footnote 34 The recent convictions in the cases Ntaganda and Ongwen polish a more promising lite.Footnote 35
In her contribution on "The International Criminal Courtroom and Sexual Violence: Betwixt Aspirations and Reality," Tanja Altunjan describes this path from great expectations to great disillusions but besides contempo rays of promise. She also analyzes how the ICC dealt with these setbacks and the criticism of its work and argues that the function of the prosecutor likewise as the court have proven themselves to be learning institutions. In contempo years, improvements in the prosecution of gender-based and sexual violence in conflict contexts tin can be witnessed at various levels. As a result, the gap betwixt aspirations and reality has go smaller. However, for the future, Altunjan warns that a more than comprehensive agreement of the nature of crimes violating the right to sexual autonomy is required.
Another ways to address the trouble of wartime sexualized violence is the principle of universal jurisdiction—specifically, the use of national criminal jurisdictions for the prosecution of crimes under international law including sexual violence. Only here, too, the start trials have been a challenging experience: In general, third countries are very reluctant when it comes to prosecutions based on the universality principle simply even where such criminal proceedings have taken identify, sexual violence has just played a subordinate role, at least in legal terms. Why is that the case? And what can be done to overcome these deficits? Alexandra Lily Kather and Silke Studzinsky accost these questions in their Article "Will Universal Jurisdiction Advance Accountability for Conflict-Related Sexualized Violence? A View from Within on Progress and Challenges in Deutschland." The Article is based on their professional person experiences working as lawyers and activists towards accountability for sexualized and gender-based crimes under international law. The authors share their—sobering—observations of a trial involving crimes committed by the Forces Démocratiques de Libération du Rwanda (FDLR) militia in the Kivu region of the Democratic Republic of the Congo,Footnote 36 too as trials involving crimes in Syrian torture prisons.Footnote 37 The High german criminal justice organisation evidently shows difficulties similar to those of the ICC in the start ten years of its activity in dealing with disharmonize-related sexual violence and the victims of such crimes. The decentralized organization of the judicial processing of such crimes also seems to brand institutional learning processes more difficult. Nevertheless, Studzinsky and Kather also place some advances in the High german criminal justice organization in the latest developments in the Syria proceedings.
II. Outlook
Our promise is that this Special Event will serve as a starting point for an intensified transnational and interdisciplinary dialogue on sexual violence and criminal justice between academics, practitioners, and activists. Ane aspect that nosotros are still grappling with are the limitations of our belief in the emancipatory potential of a criminal justice response to gendered violence. Under which conditions can such a belief exist considered equally justified? It seems to usa that this question can only be answered on a case-by-case footing as it is contingent upon the design of the given criminal justice system as well as societal weather condition. Relevant questions in this regard include: Is there an contained judiciary? Are the rights of the defendant sufficiently guaranteed in the legal organization and in practice? Are the penalties proportionate? How nearly police force enforcement officials and the prison house organization, are at that place measure in place to ensure that they are not shaped by racialized biases and other discriminatory practices? And is in that location a critical media landscape that can expose and scandalize miscarriages of justice? The aim is non to conceptualize the ideal weather for a utopian model of criminal justice, but to codify realistic requirements for specific criminal justice systems under which it is by and large acceptable to utilise criminal law to communicate fundamental societal values while keeping in mind the overriding questions on socio-political power relations. We are convinced that a dialogue on these questions is primal in lodge to understand and evaluate the different criminal policy demands in the area of sexual violence and criminal justice. With this in heed, nosotros desire to give thanks the authors of this Special Issue for sharing their perspectives and for the extremely enriching exchanges and then far and hope that nosotros volition exist able to proceed and expand this conversation.
References
1 Run into Catherine MacKinnon, Global #MeToo, in Routledge Handbook Of The Politics Of The #MeToo Move 42 (Giti Chandra & Irma Erlingsdóttir eds., 2021).
2 See Tatjana Hörnle, #MeToo – Implications for Criminal Police?, two Bergen J. Crim. Fifty. & Crim. Just. 115, 177 (2018).
3 See Lisa Salmonsson, #Akademiuppropet: Social Media as a Tool for Shaping a Counter-Public Space in Swedish Academia, in Routledge Handbook Of The Politics Of The #MeToo Move 439 (Giti Chandra & Irma Erlingsdóttir eds., 2021).
4 Run across Karen Boyle, #MeToo, Weinstein and Feminism 1 (2019).
five Come across Eithne Dowds, Rethinking Affirmative Approaches to Consent: A Step in the Right Direction, in Sexual Violence on Trial – Local and Comparative Perspectives 162 (Rachel Killean, et al. eds., 2021); Margo Kaplan, Reconciling #MeToo and Criminal Justice, 17 Ohio St. J. Crim. L. 361, 361 (2020).
half-dozen Run into Awantika Tiwari & Kalika Metha, Between Sexual Violence and Autonomy: Rethinking the appointment of the Indian Women's Movement with Criminal Law, in this Special Issue; Patricia Faraldo Cabana, The Wolf Pack Case and the Reform of Sex Crimes in Kingdom of spain, in this Special Issue.
7 Encounter Maria T. Nicolas-Gavilan, María P. Baptista-Lucio, & Maria A. Padilla-Lavin, Effects of #MeToo Campaign in Media, Social and Political spheres: The Case of Mexico, 10 Interactions: Stud. Comm. & Cult. 273 (2019); Milad Mirbabaie, Felix Brünker, Magdalena Wischewski & Judith Meinert, The Development of Connective Action during Social Movements on Social Media, 4 ACM Transact. Soc. Comp. 1 (2021).
8 Come across Angela Davies, Struggle, Solidarity and Social Change, in Routledge Handbook Of The Politics Of The #MeToo Motion 27, 30 (Giti Chandra, Irma Erlingsdóttir eds., 2021).
9 Audre Loude, The Chief's Tools Will Never Dismantle The Main's Firm (1984).
10 See Dean Spade, Their Laws Will Never Make Us Safer, in Against Equality. Prisons Will Not Protect Y'all i–12 (Ryan Conrad ed., 2012), with regard to hate crimes laws in the U.s..
eleven Run into Anthony Giddens, The Transformation of Intimacy: Sexuality, Love & Eroticism in Modernistic Societies (1992); Volkmar Sigusch, Kultureller Wandel der Sexualität, in Sexuelle Störungen Und Ihre Behandlung 16, 26 (Volkmar Sigusch ed., 1996).
12 Come across Dana-Sophia Valentiner, The Human Correct to Sexual Autonomy, in this Special Issue.
xiv Tatjana Hörnle, The New German language Law on Sexual Assault and Sexual Harassment, 18 German L.J. 1309, 1317–29 (2017).
16 See, e.g., Alex Press, MeToo Must Avert "Carceral Feminism", Vocalism (February. 18, 2018), https://world wide web.vox.com/the-big-idea/2018/2/1/16952744/me-too-larry-nassar-gauge-aquilina-feminism. For a counterbalanced summary of the German discussion run across Anja Schmidt, Zum Zusammenhang von Recht, Moral, Moralpolitik und Moralpanik am Beispiel der Reform des Sexualstrafrechts, 38 Zeitschrift Für Rechtssoziologie 244 (2018). For an assay of the broader discussion in the US, come across Aya Gruber, When Theory Met Practice: Distributional Assay in Critical Criminal Law Theorizing, 83 Fordham Fifty. Rev. 3211, 3017 (2015). The term "carceral feminism" was coined before with regards to demands to outlaw sex piece of work, encounter Elizabeth Bernstein, The Sexual Politics of the 'New Abolitionism', 18 Differences 128, 137, 143 (2007).
17 On Turkey'due south withdrawal, meet, for example, Ayşe Alniacik, Turkey's Withdrawal from the Istanbul Convention and the Normalization of Male Violence, Cambridge Core blog Apr. 3, 2021, https://www.cambridge.org/cadre/web log/2021/04/03/turkeys-withdrawal-from-the-istanbul-convention-and-normalization-of-male-violence/; Ayşegül Kula, An Unconstitutional Setback: Turkey'due south Withdrawal from the Istanbul Convention, Verfassungsblog (Mar. 22, 2021), https://verfassungsblog.de/erdogan-istanbul-convention/. On the broader setbacks, meet Stephanie Burnett, Istanbul Convention: How a European Treaty Against Women's Violence Became Politicized, Deutsche Welle (Mar. 22, 2021), https://www.dw.com/en/istanbul-convention-how-a-european-treaty-against-womens-violence-became-politicized/a-56953987.
eighteen See Kim Barker & Olga Jurasz, Sexual Violence in the Digital Age: A Criminal Police Conundrum?, in this Special Result.
19 On the concept of image-based sexual abuse, encounter Clare McGlynn & Erika Rackley, Image-Based Sexual Abuse, 37 Oxford J. Leg. Stud. 534 (2017); Nicola Henry et al., Prototype-Based Sexual Abuse: A Study on the Causes and Consequences of Not-Consensual Nude or Sexual Imagery (2020).
25 See, east.chiliad., Kathleen Daly, Reconceptualizing Sexual Victimization and Justice, in Justice For Victims. Perspectives on Rights, Transition and Reconciliation 378 (Inge Vanfraechem, Antony Pemberton, & Felix Ndahinda eds., 2014); Nikki Godden-Rasul, Repairing the Harms of Rape of Women Through Restorative Justice, in Restorative Responses To Sexual Violence 15 (Estelle Zinstag & Marie Keenan eds., 2017).
26 Run into Ralf Kölbel, "Progressive" Criminalization? A Sociological and Criminological Analysis Based on the German "No Ways No" Provision, in this Special Issue.
27 Stuart P. Green, Lies, Rape, and Statutory Rape, in Law and Lies: Deception and Truth-Telling in the American Legal System 194, 207 (Austin Sarat ed., 2015); Elisa Hoven & Tom O'Malley, Consent in the Law Relating Sexual Offences, in Core Concepts of Criminal Law and Criminal Justice 132, 138 (Kai Ambos et al. eds., 2020); Joan McGregor, Strength, Consent, and the Reasonable Woman, in In Harm'southward Manner: Essays in Honor of Joel Feinberg 111, 111–12 (Jules 50. Coleman & Allen Buchanan eds., 1994); Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Police force 99 (1998).
28 A classic case apropos this question is R. v. Brown [1993], 1 Air conditioning (HL). Run into David Kell, Social Disutility and the Law of Consent, 14 Oxford J. Leg. Stud. 121 (1994).
29 On the dangers of the consent paradigm as a concept of sexual politics, see Joseph Fischel, Spiral Consent. A Better Politics of Sexual Justice (2019).
30 See Istanbul Convention, supra note 13 at arts. thirty, 54, 56. For the EU run across, for case, Directive 2012/29/European union of the European Parliament and of the Council of 25 Oct 2012 Establishing Minimum Standards on the Rights, Back up and Protection of Victims of Offense, and Replacing Quango Framework Conclusion 2001/220/JHA, 2012 O.J. (L 315); European Parliament Resolution of thirty May 2022 on the Implementation of Directive 2012/29/European union Establishing Minimum Standards on the Rights, Back up and Protection of Victims of Crime 2016/2328(INI), 2022 O.J. (C 76); Quango Directive 2004/80/EC of 29 April 2004 Relating to Compensation to Crime Victims, 2004 O.J. (L 261); Directive 2011/92/EU of the European Parliament and of the Council of 13 Dec 2011 on Combating the Sexual Abuse and Sexual Exploitation of Children and Kid Pornography, and Replacing Council Framework Decision 2004/68/JHA, 2011 O.J. (Fifty 335); Directive 2011/36/EU of the European Parliament and of the Quango of v April 2011 on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, and Replacing Council Framework Determination 2002/629/JHA, 2011 O.J. (L 101); Directive (EU) 2017/541 of the European Parliament and of the Council of 12 March 2017 on Combating Terrorism and Replacing Council Framework Decision 2002/475/JHA and Amending Council Decision 2005/671/JHA, 2022 O.J. (L 88).
31 For a mostly critical assessment of the increasing implementation of victims' rights in Federal republic of germany, see the contributions in Stephan Barton Ralf Kölbel, Ambivalenzen der Opferzuwendung des Strafrechts (2012); for the common police perspective, see, for example, Marie Manikis, Conceptualizing the Victim within Criminal Justice Processes in Common Law Systems 247, in The Oxford Handbook of Criminal Procedure (Darryl K. Brown, Jenia Ioncheva Turner, & Bettina Weisser eds., 2019).
32 Encounter, eastward.g., Thomas Fischer, Noch einmal: § 177 und die Istanbul-Konvention, seven Zeitschrift Für Internationale Strafrechtsdogmatik [ZIS] 312 (2015); Monika Frommel, Muss der Tatbestand der Sexuellen Nötigung/Vergewaltigung—§177 StGB—reformiert werden? in Festschrift Für Heribert Ostendorf zum 70. Geburtstag 321 (J. Brüning, T. Rotsch & J. Schady eds., 2015); Ralf Kölbel, Die dunkle Seite des Strafrechts. Eine kriminologische Erwiderung auf dice Pönalisierungsbereitschaft in der strafrechtswissenschaftlichen Kriminalpolitik, 31 Neue Kriminalpolitik 249 (2019).
33 Maria Eriksson Baaz & Maria Stern, Sexual Violence every bit a Weapon of War? Perceptions, Prescriptions, Issues in the Congo and Beyond 42 (2012).
34 For a comprehensive analysis of the ICC'south performance in this regard, see Louise Chappell, The Politics of Gender Justice at the International Criminal Courtroom: Legacies and Legitimacy 52, 87, 104–106 (2016). Encounter likewise Alexander Schwarz, Das völkerrechtliche Sexualstrafrecht: Sexualisierte und geschlechtsbezogene Gewalt vor dem Internationalen Strafgerichtshof 24, 104 (2019).
35 Prosecutor v. Ntaganda, ICC-01/04-02/06, Judgment (Jul. viii, 2019), https://www.icc-cpi.int/CourtRecords/CR2019_03568.PDF; Prosecutor v. Ntaganda, ICC-01/04-02/06 A A2, Appeals Judgment (Mar. 30, 2021), https://world wide web.icc-cpi.int/CourtRecords/CR2021_03027.PDF; Prosecutor v. Ongwen, ICC-02/04-01/15, Judgment (Feb. 4, 2021), https://www.icc-cpi.int/CourtRecords/CR2021_01026.PDF.
36 Oberlandesgericht Stuttgart [OLG Stuttgart] [Higher Regional Court] Sept. 28, 2015, BeckRS 2012, 4214.
37 Wolfgang Kaleck & Patrick Kroker, Syrian Torture Investigations in Federal republic of germany and Beyond: Animate New Life into Universal Jurisdiction in Europe?, sixteen J. Int'fifty Crim. Merely. 165 (2018).
Source: https://www.cambridge.org/core/journals/german-law-journal/article/sexual-violence-and-criminal-justice-in-the-21st-century/F207D24FAFB2F98C74D09FD59BB089E6
0 Response to "Law Review Article Balancing Me Too and Abolition Movement"
Post a Comment