Current Law Journal Content
Washington & Lee Law School
Current Law Journal Content
an index to legal periodicals
Contemporary Issues in Law
Volume 10, Issue 2, 2010
FORCED MARRIAGE AND THE STATE AS PARENT
The criminalisation of forced marriages under the Civil Μarriages (Protection) Act 2007 has the clear definition of woman as the victim. This will make the state guardian of the wife, who it infers has been pressed into marriage by her parents. It has the potential to divide the family as a unit by coming in a package of reform that deems gender differentiation of primary concern in subcontinental Asian culture. There will be repercussions on the kinsgroup of the husband who could be held responsible as aiders and abetters of the principal party in the crime. The offence will have a wide orbit and will override the ordinary rules of evidence allowing hearsay to be admissible. It will empower agencies to act as intermediaries on behalf of the women, whose testimony would be accepted by the courts. This will be to the detriment of the accused and could cause miscarriages of justice because of ethnocentric stereotyping, and by the denial of cultural defence in the case of honour killings. The outcome will be confrontation rather than mediation, and judges will be barred from consideration of the codes of conduct in minority affairs that has been applied in the US. In promoting this agenda, the British government has ignored the lessons of native Americans minors who were declared wards of state and who after childhood suffered psychological damage. There is a need to challenge the notion that the state is a good parent, and to end the interference of the UΚ government in the life patterns of oriental peoples in the name of multiculturalism.
CHILLING DEATHS UNDER THE GUISE OF CULTURE AND TRADITION: A CRITICAL STUDY OF ATROCITIES AGAINST WOMEN IN MODERN INDIA
Sati (the rite of immolating a widow in her husband's funeral pyre) and dowry deaths are manifestations of the Indian concept of pativrta: the virtuous woman who has no existence apart from that of her husband. In India, widowed women are still made to wear white dresses in many homes, as they are made to shun all enjoyment and pleasure and stay away from social life. Dowry death occurs when a married girl (bride) is burnt to death or killed or tortured by her in-laws and husband for not providing sufficient gifts or money to their in-laws by her parents. On an average one Indian woman dies every four hours over a dowry dispute, despite a series of laws to empower them. Sex-selective abortion is another indirect form of violence against women. Estimates indicate that several million female were aborted in the last two decades. While sons offer security in old age and can perform the rites for the souls of deceased parents and ancestors, daughters are perceived as a social and economic burden. This article will discuss the magnitude, socio-cultural and legal tangle of some of the most common and severe forms of violence against women: sati; dowry; and sex-selective abortion. The article further explores the reality of life and death for women in modern India, which is both enlightening and terrifying.
CRITICAL PERSPECTIVES ON THE POLICING AND CRIME ACT 2009: AN UNETHICAL APPROACH TO THE REGULATION OF PROSTITUTION
This article will provide a critical analysis of the recent reforms relating to prostitution as contained in the Policing and Crime Act 2009. The provisions introduced by this Act have significantly increased the State's regulation and criminalisation of prostitution and the justifications for two sections in particular will be evaluated: section 14, which criminalises purchasing sexual services from a prostitute subject to exploitation; and section 21 which introduces closures orders for premises used for 'prostitute related offences'. In order to evaluate the stated justifications the article will provide a close and critical reading of the relevant governmental consultations and the parliamentary debates. It will be argued that throughout the reform process that the Government drew upon a radical feminist perspective in order to justify increased regulation and criminalisation. Prostitution is invariably constructed as amounting to violence against women and as α practice that the vast majority of women are coerced or forced into. The article, will, however, contend that the approach adopted by the Government is unethical. It will be argued that whilst a radical feminist perspective appears to be adopted by the Government, on a closer reading it can be seen that an un-debated moral agenda is behind the reforms. To this end it will be argued that the Government unethically draws upon the vulnerability of sex workers in order to promote reforms which are more concerned with morality as opposed to protecting sex workers from violence. In contrast to the approach adopted by the Government, the article will argue that Judith Butler's approach to ethics, vulnerability and her notion of liveable lives, provides a more inclusive and ethical theoretical framework upon which to premise the regulation of prostitution.
JUDGMENT CRITIQUE OF THE CASE NAZ FOUNDATION v. GOVERNMENT OF NCT OF DELHI
This paper examines the judgment on the Constitutional Validity of section 377 of the Indian Penal Code which criminalizes consensual sexual acts between adults against the order of the nature. The 105-page historic judgment has ushered in an era of greater freedom for gay men and lesbians in India, for it decriminalized homosexuality. The age-old law which criminalized homosexuality through section 377 of the Indian Penal Code (IPC) was struck down by the Court on the ground that it violated articles 14, 15 and 21 of the Constitution.
INCEST IN SCOTS LAW: MISSED OPPORTUNITIES IN THE SCOTTISH LAW COMMISSION REVIEW
James A. Roffee
Incest is criminalised in Scots Law through the Criminal Law (Consolidation) (Scotland) Act 1995. The Scottish Law Commission (SLC) recently undertook 'the first ever systematic review of Scots sex law' which led to the Sexual Offences (Scotland) Act 2009. Yet this systematic review circumvented the offence of incest. To leave untouched such an offence would incorrectly suggest that the Scots law on the subject is appropriately formulated, working well and potentially a beacon of best practice which could be adopted elsewhere. This article intends to highlight some definitional problems with the Scots law on incest. The SLC first began a review into incest in 1977 producing a memorandum and then a Report. Recommendations within this Report led directly to the Incest and Related Offences (Scotland) Act 1986. The definition was altered substantially by the removal of a number of prohibited degrees. Consolidation in 1995 left the substantive provisions of the law unchanged and this formulation of the law of 1986 is still in force today.