Freedom of speech is the freedom to speak freely without censorship or limitation. The synonymous term freedom of expression is sometimes used to indicate not only freedom of verbal speech but any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, such as on "hate speech".
The right to freedom of speech is recognized as a human right under Article 19 of the Universal Declaration of Human Rights and recognized in international human rights law in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR recognizes the right to freedom of speech as "the right to hold opinions without interference. Everyone shall have the right to freedom of expression". Furthermore freedom of speech is recognized in European, inter-American and African regional human rights law.
Freedom of speech and expression are closely related, yet distinct from, the concept of freedom of thought.
Freedom of the press consists of constitutional or statutory protections pertaining to the media and published materials.
With respect to governmental information, any government distinguishes which materials are public or protected from disclosure to the public based on classification of information as sensitive, classified or secret and being otherwise protected from disclosure due to relevance of the information to protecting the national interest. Many governments are also subject to sunshine laws or freedom of information legislation that are used to define the ambit of national interest.
The right to fair trial is seen as an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict quashed.
The right to a fair trial is explicitly proclaimed in Article Ten of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article Six of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world.
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority. Often referred to simply as "contempt", such as a person "held in contempt", it is the judge's strongest power to impose sanctions for acts which disrupt the court's normal process.
A finding of contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behavior, or publication of material deemed likely to jeopardize a fair trial. A judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court. Judges in common law systems usually have more extensive power to declare someone in contempt than judges in civil law systems.
In civil cases involving disputes between private citizens, the behavior resulting in the ruling is often directed at one of the parties involved rather than at the court directly.
A person found in contempt of court is called a "contemnor." To prove contempt, the prosecutor or complainant must prove the four elements of contempt:existence of a lawful order the contemnor's knowledge of the order the contemnor's ability to comply the contemnor's failure to comply
Federal CourtsThis section applies only to Federal Court of Appeal and Federal Court.
Under Federal Court Rules, section 472, a person who is accused of Contempt needs to be first served with a contempt order and then appear in court to answer the charges. Convictions can only be made when proof beyond a reasonable doubt is achieved.
If it's a matter of urgency or the contempt was done in front of a judge, that person can be punished immediately. Punishment can range from the person be imprisoned for a period of less than five years or until the person complies with the order, fine, or be ordered to do or refrain from doing any act as considered by the judge.
In English law (a common law jurisdiction) the law on contempt is partly set out in case law, and partly specified in the Contempt of Court Act 1981. Contempt may be a criminal or civil offence. The maximum sentence for criminal contempt is two years.
Disorderly, contemptuous, or insolent behavior toward the judge or magistrates while holding the court, tending to interrupt the due course of a trial or other judicial proceeding, may be prosecuted as "direct" contempt. The term "direct" means that the court itself cites the person in contempt by describing the behavior observed on the record. Direct contempt is distinctly different from indirect contempt, wherein another individual affected by a court order may file papers alleging contempt against a person who has willfully violated a lawful court order. Criminal contempt of court
The Crown Court is a court of record under the Supreme Court Act 1981 and accordingly has power to punish for contempt of its own motion. The Divisional Court has stated that this power applies in three circumstances:Contempt "in the face of the court" (not to be taken literally; the judge does not need to see it, provided it took place within the court precincts or relates to a case currently before that court); Disobedience of a court order; and Breaches of undertakings to the court.
Where it is necessary to act quickly the judge (even the trial judge) may act to sentence for contempt.
Where it is not necessary to be so urgent, or where indirect contempt has taken place the Attorney General can intervene and the Crown Prosecution Service will institute criminal proceedings on his behalf before the Divisional Court of the Queen's Bench Division of the High Court of Justice of England and Wales (Criminal Division).
Magistrates' Courts are not courts of record, but nonetheless have powers granted under the Contempt of Court Act 1981. They may detain any person who insults the court or otherwise disrupts its proceedings until the end of the sitting. Upon the contempt being either admitted or proved the court may imprison the offender for a maximum of one month, fine them up to GBP2500, or do both.
It is contempt of court to bring an audio recording device or picture-taking device of any sort into an English court without the consent of the court.
It is not contempt of court (under section 10 of the Act) for a journalist to refuse to disclose his sources, unless the court has considered the evidence available and determined that the information is "necessary in the interests of justice or national security or for the prevention of disorder or crime." Strict liability contempt
Under the Contempt of Court Act 1981 it is criminal contempt of court to publish anything which creates a real risk that the course of justice in proceedings may be seriously impaired. It only applies where proceedings are active, and the Attorney General has issued guidance as to when he believes this to be the case, and there is also statutory guidance. The clause prevents the newspapers and media from publishing material that is too extreme or sensationalist about a criminal case until the trial is over and the jury has given its verdict.
Section 2 of the Act limits the common law presumption that conduct may be treated as contempt regardless of intention: now only cases where there is a substantial risk of serious prejudice to a trial are affected.
Civil contemptIn civil proceedings there are two main ways in which contempt is committed:Failure to attend at court despite a subpoena requiring attendance. In respect of the High Court, historically a writ of latitat would have been issued, but now a bench warrant is issued, authorizing the tipstaff to arrange for the arrest of the individual, and imprisonment until the date and time the court appoints to next sit. In practice a groveling letter of apology to the court is sufficient to ward off this possibility, and in any event the warrant is generally 'backed for bail' i.e. bail will be granted once the arrest has been made and a location where the person can be found in future established. Failure to comply with a court order. A copy of the order, with a "penal notice" - i.e. notice informing the recipient that if they do not comply they are subject to imprisonment - is served on the person concerned. If, after that, they breach the order, proceedings can be started and in theory the person involved can be sent to prison. In practice this rarely happens as the cost on the claiming of bringing these proceedings is significant and in practice imprisonment is rarely ordered as an apology or fine are usually considered appropriate. United States
Under American jurisprudence, acts of contempt are divided into two types.Direct contempt is that which occurs in the presence of the presiding judge (in facie curiae) and may be dealt with summarily: the judge notifies the offending party that he or she has acted in a manner which disrupts the tribunal and prejudices the administration of justice. After giving the person the opportunity to respond, the judge may impose the sanction immediately. Indirect contempt occurs outside the immediate presence of the court and consists of disobedience of a court's prior order. Generally a party will be accused of indirect contempt by the party for whose benefit the order was entered. A person cited for indirect contempt is entitled to notice of the charge and an opportunity for hearing of the evidence of contempt and to present evidence in rebuttal.
Contempt of court in a civil suit is generally not considered to be a criminal offense, with the party benefiting from the order also holding responsibility for the enforcement of the order. However, some cases of civil contempt have been perceived as intending to harm the reputation of the plaintiff, or to a lesser degree, the judge or the court.
Sanctions for contempt may be criminal or civil. If a person is to be punished criminally, then the contempt must be proven beyond a reasonable doubt, but once the charge is proven, then punishment (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to "hold the keys" to his or her own cell, thus conventional due process is not required. The burden of proof for civil contempt, however, is a preponderance of the evidence, and punitive sanctions (punishment) can only be imposed after due process.
Due process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.
Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and liberty. This interpretation has often proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions.
In the early years of the United States the terms law of the land and due process were used somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the law of the land phrase. In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses. Alexander Hamilton commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import.."
New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: " No Person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law."
In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress. Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.
No state or federal constitution in the U.S. had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land". As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably.
The Fifth Amendment guarantee of due process is applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applied to the states. Therefore, those two clauses only apply against state actors, and not against private citizens. The Supreme Court has interpreted those two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”
The due process clause applies to "legal persons" (that is, corporate personhood) as well as to individuals. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law. The enumerated due process right
Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....”
In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.” Unenumerated due process rights
As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Clarence Thomas stated as follows, in a 2004 dissent: As an initial matter, it is possible that the Due Process Clause requires only “that our Government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions.” In re Winship, 397 U.S. 358, 382 (1970), (Black, J., dissenting).
Despite the objections of people like Justice Hugo Black in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.
By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that “it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.” But determining what those restraints are has been a subject of considerable disagreement. Procedural due process
In the United States, criminal prosecutions and civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights. Most of these rights have been incorporated under the Fourteenth Amendment to the States. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.
This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be tantamount to cruel and unusual punishment.
At a basic level, procedural due process is essentially based on the concept of "fundamental fairness." For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.
Or, to put it more simply, where an individual is facing a (1) deprivation of (2) life, liberty, or property, (3) procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge.
The Supreme Court has formulated a balancing test to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: " I dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever. A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process.
The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court. Substantive due process
Main article: Substantive due process
The term "substantive due process" (SDP), is commonly used in two ways: first to identify a particular line of cases, and second to signify a particular attitude toward judicial review under the Due Process Clause. The term "substantive due process" began to take form in 1930s legal casebooks as a categorical distinction of selected due process cases, and by 1950 had been mentioned twice in Supreme Court opinions. SDP involves liberty-based due process challenges which seek certain outcomes instead of merely contesting procedures and their effects; in such cases, the Supreme Court recognizes a constitutionally-based "liberty" which then renders laws seeking to limit said "liberty" either unenforceable or limited in scope. Critics of SDP decisions typically assert that those liberties ought to be left to the more politically accountable branches of government.
Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.” Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear. Some of those rights have long histories or “are deeply rooted” in American society.
The courts have largely abandoned the Lochner era approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions, and alternatively they could be protected by legislatures.
Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment, which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment); restrictions on the political process (e.g. the rights of voting, association, and free speech); and the rights of “discrete and insular minorities.”
The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interest.
Privacy, which is not explicitly mentioned in the Constitution, was at issue in Griswold v. Connecticut (1965), wherein the Court held that criminal prohibition of contraceptive devices for married couples violated federal, judicially enforceable privacy rights. The right to contraceptives was found in what the Court called the "penumbras", or shadowy edges, of certain amendments that arguably refer to certain privacy rights. The penumbra-based rationale of Griswold has since been discarded; the Supreme Court now uses the Due Process Clause as a basis for various unenumerated privacy rights. Although it has never been the majority view, some have argued that the Ninth Amendment (addressing unenumerated rights) could be used as a source of fundamental judicially enforceable rights, including a general right to privacy, as discussed by Justice Goldberg concurring in Griswold. Criticisms
Critics of substantive due process claim that the doctrine began, at the federal level, with the infamous 1857 slavery case of Dred Scott v. Sandford. Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott, but claim that it was employed incorrectly. Chief Justice Taney was not entirely breaking ground in his Dred Scott opinion when, without elaboration, he pronounced the Missouri Compromise unconstitutional because an "act of Congress that deprived a citizen of his liberty or property merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law." Dissenting Justice Curtis disagreed with Taney about what "due process" meant in Dred Scott.
Criticisms of the doctrine continue as in the past. Critics argue that judges are making determinations of policy and morality that properly belong with legislators (i.e. "legislating from the bench"), or argue that judges are reading views into the Constitution that are not really implied by the document, or argue that judges are claiming power to expand the liberty of some people at the expense of other people's liberty (e.g. as in the Dred Scott case), or argue that judges are addressing substance instead of process.
Oliver Wendell Holmes, Jr., a realist, worried that the Court was overstepping its boundaries, and the following is from one of his last dissents: I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass.
Originalists, such as Supreme Court Justice Clarence Thomas, who rejects substantive due process doctrine, and Supreme Court Justice Antonin Scalia, who has also questioned the legitimacy of the doctrine, call substantive due process a "judicial usurpation" or an "oxymoron." Both Scalia and Thomas have occasionally joined Court opinions that mention the doctrine, and have in their dissents often argued over how substantive due process should be employed based on Court precedent.
Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As propounded in his dissents in Moore v. East Cleveland and Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick, White argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to "repeat the process at will." In his book Democracy and Distrust, non-originalist John Hart Ely criticized "substantive due process" as a glaring non-sequitur. Ely argued the phrase was a contradiction-in-terms, like the phrase green pastel redness.
Originalism is usually linked to opposition against substantive due process rights, and the reasons for that can be found in the following explanation that was endorsed unanimously by the Supreme Court in a 1985 case: " We must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
Originalists do not necessarily oppose protection of the rights heretofore protected using substantive due process, and instead most originalists believe that such rights should be identified and protected legislatively, or via further constitutional amendments, or via other existing provisions of the Constitution.
The perceived scope of the Due Process Clause was originally different than it is today. For instance, even though many of the Framers of the Bill of Rights believed that slavery violated the fundamental natural rights of African-Americans, a "theory that declared slavery to be a violation of the due process clause of the Fifth Amendment.... requires nothing more than a suspension of reason concerning the origin, intent, and past interpretation of the clause." Levels of scrutiny
When a law or other act of government is challenged as a violation of individual liberty under the Due Process Clause, courts nowadays primarily use two forms of scrutiny, or judicial review. This inquiry balances the importance of the governmental interest being served and the appropriateness of the government's method of implementation against the resulting infringement of individual rights. If the governmental action infringes upon a fundamental right, the highest level of review—strict scrutiny—is used. In order to pass strict scrutiny review, the law or act must be narrowly tailored to further a compelling government interest.
When the governmental restriction restricts liberty in a manner that does not implicate a fundamental right, rational basis review is used. Here a legitimate government interest is enough to pass this review. There is also a middle level of scrutiny, called intermediate scrutiny, but it is primarily used in Equal Protection cases rather than in Due Process cases: “The standards of intermediate scrutiny have yet to make an appearance in a due process case.” Incorporation of the Bill of Rights into due process
Main article: Incorporation (Bill of Rights)
Incorporation is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the Fourteenth Amendment's Due Process Clause. The basis for incorporation is substantive due process regarding substantive rights enumerated elsewhere in the Constitution, and procedural due process regarding procedural rights enumerated elsewhere in the Constitution.
Incorporation started in 1897 with a takings case, continued with Gitlow v. New York (1925) which was a First Amendment case, and accelerated in the 1940s and 1950s. Justice Hugo Black famously favored the jot-for-jot incorporation of the entire Bill of Rights. Justice Felix Frankfurter, however—joined later by Justice John M. Harlan—felt that the federal courts should only apply those sections of the Bill of Rights that were "fundamental to a scheme of ordered liberty." It was the latter course that the Warren Court of the 1960s took, although, almost all of the Bill of Rights has now been incorporated jot-for-jot against the states.
The role of the incorporation doctrine in applying the guarantees of the Bill of Rights to the states is just as notable as the use of due process to define new fundamental rights that are not explicitly guaranteed by the Constitution's text. In both cases, the question has been whether the right asserted is "fundamental", so that, just as not all proposed "new" constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.
Some people, such as Justice Black, have argued that the Privileges or Immunities Clause of the Fourteenth Amendment would be a more appropriate textual source for the incorporation doctrine. The Court has not taken that course, and some point to the treatment given to the Privileges or Immunities Clause in the 1873 Slaughterhouse Cases as a reason why. Although, the Slaughterhouse Court did not expressly preclude application of the Bill of Rights to the states, the Clause largely ceased to be invoked in opinions of the Court following the Slaughterhouse Cases, and when incorporation did begin, it was under the rubric of due process. Scholars who share Justice Black's view, such as Akhil Amar, argue that the Framers of the Fourteenth Amendment, like Senator Jacob Howard and Congressman John Bingham, included a Due Process Clause in the Fourteenth Amendment for the following reason: "By incorporating the rights of the Fifth Amendment, the privileges or immunities clause would...have prevented states from depriving 'citizens' of due process. Bingham, Howard, and company wanted to go even further by extending the benefits of state due process to aliens."
The Supreme Court has consistently held that Fifth Amendment due process means substantially the same as Fourteenth Amendment due process, and therefore the original meaning of the former is relevant to the incorporation doctrine of the latter. When the Bill of Rights was originally proposed by Congress in 1789 to the states, various substantive and procedural rights were "classed according to their affinity to each other" instead of being submitted to the states "as a single act to be adopted or rejected in the gross," as James Madison put it. Roger Sherman explained in 1789 that each amendment "may be passed upon distinctly by the States, and any one that is adopted by three fourths of the legislatures may become a part of the Constitution." Thus, the states were allowed to reject the Sixth Amendment, for example, while ratifying all of the other amendments including the Due Process Clause; in that case, the rights in the Sixth Amendment would not have been incorporated against the federal government. The doctrine of incorporating the content of other amendments into “due process” was thus an innovation, when it began in 1925 with the Gitlow case, and this doctrine remains controversial today.
The burden of proof (Latin: onus probandi) is the obligation to shift the assumed conclusion away from an oppositional opinion to one's own position. The burden of proof may only be fulfilled by evidence.
The burden of proof is often associated with the Latin maxim semper necessitas probandi incumbit ei qui agit, the best translation of which seems to be: "the necessity of proof always lies with the person who lays charges." This is a statement of a version of the presumption of innocence which underpins the assessment of evidence in some legal systems, and is not a general statement of when one takes on the burden of proof. The burden of proof tends to lie with anyone who is arguing against received wisdom, but does not always, as sometimes the consequences of accepting a statement or the ease of gathering evidence in its defence might alter the burden of proof its proponents shoulder. The burden may also be assigned institutionally.
He who does not carry the burden of proof carries the benefit of assumption, meaning he needs no evidence to support his claim. Fulfilling the burden of proof effectively captures the benefit of assumption, passing the burden of proof off to another party.
The burden of proof is an especially important issue in law and science.
There are generally two broad types of burdens:A "legal burden" or a "burden of persuasion" is an obligation that remains on a single party for the duration of the claim. Once the burden has been entirely discharged to the satisfaction of the trier of fact, the party carrying the burden will succeed in its claim. For example, the presumption of innocence places a legal burden upon the prosecution to prove all elements of the offence (generally beyond a reasonable doubt) and to disprove all the defences except for affirmative defenses in which the proof of nonexistence of all affirmative defence(s) is not constitutionally required of the prosecution. An "evidentiary burden" or "burden of leading evidence" is an obligation that shifts between parties over the course of the hearing or trial. A party may submit evidence that the court will consider prima facie evidence of some state of affairs. This creates an evidentiary burden upon the opposing party to present evidence to refute the presumption. Standard of proof
The "standard of proof" is the level of proof required in a legal action to discharge the burden of proof, that is to convince the court that a given proposition is true. The degree of proof required depends on the circumstances of the proposition. Typically, most countries have two levels of proof or the balance of probabilities:beyond a reasonable doubt -- (highest level of proof, used mainly in criminal trials) preponderance of evidence -- (lowest level of proof, used mainly in civil trials)
In addition to these, the U.S. introduced a third standard called clear and convincing evidence, which is the medium level of proof, used, for example, in cases in which the state seeks to terminate parental rights. Standards for detentions, searches, arrests or warrants Reasonable suspicion
Reasonable suspicion is a low standard of proof in the U.S. to determine whether a brief investigative stop or search by a police officer or any government agent is warranted. It is important to note that this stop and/or search must be brief; its thoroughness is proportional to, and limited by, the low standard of evidence. A more definite standard of proof (often probable cause) would be required to warrant a more thorough stop/search. In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court ruled that reasonable suspicion requires specific, articulable, and individualized suspicion that crime is afoot. A mere guess or "hunch" is not enough to constitute reasonable suspicion.
A investigatory stop is a seizure under the Fourth Amendment. The state must justify the seizure by showing that the officer conducting the stop had a reasonable articulable suspicion that criminal activity was afoot. The important point is that officers cannot deprive a citizen of his or her liberty unless the officer can point to specific facts and circumstances and inferences therefrom that would amount to a reasonable suspicion. The officer must be prepared to establish that criminal activity was a logical explanation for what he perceived. The requirement serves to prevent officers from stopping individuals based merely on hunches or unfounded suspicions. The purpose of the stop and detention is to investigate to the extent necessary to confirm or dispel the original suspicion. If the initial confrontation with the person stopped dispels suspicion of criminal activity the officer must end the detention and allow the person to go about her business. If the investigation confirms the officer's initial suspicion or reveals evidence that would justify continued detention the officer may require the person detained to remain at the scene until further investigation is complete. In some cases, the investigation may develop sufficient evidence to constitute probable cause. Probable cause for arrest
Main article: Probable cause
Probable cause is a relatively low standard of evidence, which is used in the United States to determine whether a search, or an arrest, is warranted. It is also used by grand juries to determine whether to issue an indictment. In the civil context, this standard is often used where plaintiffs are seeking a prejudgment remedy.
In the criminal context, the U.S. Supreme Court in United States v. Sokolow, 490 U.S. 1 (1989), determined that probable cause requires "a fair probability that contraband or evidence of a crime will be found" in determining whether Drug Enforcement Administration agents had a reason to execute a search. Courts vary when determining what constitutes a "fair probability," some say 30%, others 40%, others 51%.
A good illustration of this evidence/intrusiveness continuum might be a typical police/citizen interaction. Consider the following three interactions:no level of suspicion required: a consensual encounter between officer and citizen reasonable suspicion required: a stop initiated by the officer that would cause a reasonable person to feel that he or she is not free to leave probable cause required: arrest. Standards for presenting cases or defenses Air of reality
The "air of reality" is a standard of proof used to determine whether a criminal defense may be used. The test asks whether a defense can be successful if it is assumed that all the claimed facts are to be true. In most cases, the burden of proof rests solely on the prosecution, negating the need for a defense of this kind. However, when exceptions arise and the burden of proof has been shifted to the defendant, he is required to establish a defense that bears an "air of reality." Two instances in which such a case might arise are, first, when a prima facie case has been made against the defendant or, second, when the defense mounts an affirmative defense, such as the insanity defense. Standards for conviction Preponderance of the evidence
Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions, described it simply as "more probable than not." Until 1970, this was also the standard used in juvenile court in the United States. Clear and convincing evidence
Clear and convincing evidence is the higher level of burden of persuasion sometimes employed in both civil and criminal procedure in the United States. For example, a prisoner seeking habeas corpus relief from capital punishment must prove his factual innocence by clear and convincing evidence.
To prove something by "clear and convincing evidence", the party with the burden of proof must convince the trier of fact that it is substantially more likely than not that the thing is in fact true. This is a lesser requirement than "proof beyond a reasonable doubt", which requires that the trier of fact be close to certain of the truth of the matter asserted, but a stricter requirement than proof by "preponderance of the evidence," which merely requires that the matter asserted seem more likely true than not. Beyond reasonable doubt
Main article: Reasonable doubt
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This is the standard required by the prosecution in most criminal cases within an adversarial system and is the highest level of burden of persuasion. This means that the proposition being presented by the government must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a "reasonable person's" belief that the defendant is guilty. If the doubt that is raised does affect a "reasonable person's" belief that the defendant is guilty, the jury is not satisfied beyond a "reasonable doubt". The precise meaning of words such as "reasonable" and "doubt" are usually defined within jurisprudence of the applicable country.
What is the burden of proof? First, we must address the meaning of the word “burden.” Most often jurors interpret this word as meaning weight. Jurors picture the state in the person of the prosecutor with a massive object on his back attempting to carry it up some incline for some distance– defense attorneys have been heard to say that the state has a “heavy burden.” The word “burden” has nothing to do with weight, mass or any other physical properties – the word simply means responsibility. It is the state’s responsibility to prove the defendant’s guilt. It has nothing to do with the degree or intensity of proof. Who has to prove the defendant’s guilt? The State does. To what degree must guilt be proven? Beyond a reasonable doubt. What does that mean? Again the problem is with words being used in an abnormal or special way. The word “beyond” normally means farther than or more than. Clearly this is not the meaning of the word in the phrase “beyond a reasonable doubt.” The state does not have to “carry its burden” beyond some point that constitutes reasonable doubt. The state certainly is not trying to prove that there is more than a reasonable doubt. If anything the state’s responsibility is to prove that there is less than a reasonable doubt. The word “beyond” in the phrase beyond a reasonable doubt means “to the exclusion of.” That is, the state must exclude any and all reasonable doubt as to the defendant’s guilt. Simply put, the phrase means that if a juror has a reasonable doubt it is his or her duty to return a verdict of not guilty. On the other hand, if a juror does not have a reasonable doubt then the state has met its burden of proof and it is the juror’s duty to return a verdict of guilty. “What is a reasonable doubt?” Jury instructions typically say that a reasonable doubt is a doubt based on reason and common sense and typically use phrases such as “fully satisfied” or “entirely convinced” in an effort to quantify the standard of proof. These efforts tend to create more problems than they solve. For example, take the phrases “fully satisfied” and “entirely convinced.” A person is satisfied when she is content, pleased, happy, comfortable or at ease. The fellow leans back in his chair after a meal, pats his stomach and says, “that was one satisfying meal.” Is that what the state must do - offer sufficient proof that a juror is content, happy, pleased or comfortable with her verdict. Absolutely not. A juror is not required to be pleased with the verdict or happy with the verdict. The state is not required to produce sufficient evidence to eliminate all reasonable doubt AND to please the juror or to eliminate all reservations about whether the juror has done the right thing. “Satisfied” in the phrase “fully satisfied” simply means convinced. Likewise the modifiers "entirely" and "fully" do not mean that you have to be 100 percent certain of the defendant’s guilt. The standard of proof is not absolute certainty. A juror is "fully satisfied" or "entirely convinced" when the state had eliminated all reasonable doubt.
Jury instructions often state that a reasonable doubt can arise from the "lack or insufficiency of the evidence." This phrase is rich with possibilities for concocting doubt – Where are the fingerprints? Where is the DNA evidence? Where are the other officers who assisted with the arrest? These arguments invite, actually require that the jury engage in speculation – something a jury is specifically instructed not to do. An example, a person enters a store. The clerk who is talking to her friend on the telephone sees the man. She tells her friend that the man appeared to be casing the place and asks her friend to call the police. A few minutes later the man leaves the store, walks to his car, opens the trunk, and retrieves a ski-mask and a shotgun. The man dons the mask, re-enters the store and tells the clerk to give it up. The clerk does as she is told and put the contents of the till into a bag which she hands to the man. The man then leaves the store. As he is running to his car the police arrive. The man flees from the scene with the police officers in hot pursuit. As he runs the man tosses the bag, gun and mask. He is caught shortly thereafter, returned to the store and is positively identified by the clerk as the man who cased the store and then robbed her. The bag is retrieved and the money in the bag exactly matches to the penny the amount taken from the register. At the trial, the defense attorney asks the lead investigator whether hair samples were taken from the mask and submitted to the lab for analysis. The investigator says no. During closing arguments the defense attorney conveniently ignores all the evidence of guilt and pounds away at the sloppy investigation and argues that had the hair analysis could have provided the jury with "irrefutable evidence" of the defendant's guilt or innocence. Is the absence of the hair evidence what the phrase “lack or insufficiency of the evidence” refers to. No. The phrase refers to the convincing force of the evidence presented. The presence or absence of reasonable doubt is to be determined by the evidence presented at trial not what might have been presented. There is a standard objection- Calls for speculation – that is exactly what the defense attorney is asking the jury to do, to speculate. Not simple speculation but a series of "what ifs." What if a hair sample had been found, what if the hair sample had been sent to the lab for DNA analysis, what if he DNA profile had not “matched” the defendant’s. What if + what if + what if = reasonable doubt. Remember that the state’s duty is to eliminate any reasonable doubt, any logical explanation that arises from the evidence. The defense's argument is not a proper argument. It is a “tool of logical inversion” All the evidence would compel one to say the defendant is guilty. However, the defendant wants the jurors to think, "but still there is that missing hair analysis evidence. I wonder what that would have shown?" A jury properly draw conclusion based on the evidence and inferences drawn from the evidence. The strength of the conclusions is based on the persuasive force of the evidence. With one exception, "Lack or insufficiency" refers to the convincing force of the evidence presented.
The exception is the missing witness rule, which states: "The failure to call a witness raises a presumption of inference that the testimony of such person would be unfavorable to the party failing to call him, but there is no such presumption or inference where the witness is not available, or where his testimony is unimportant or cumulative, or where he is equally available to both sides."
"The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock "axiomatic and elementary" principle whose "enforcement lies at the foundation of the administration of our criminal law." . Proof beyond a reasonable doubt did not become the accepted standard in criminal cases until the middle of the nineteenth century. Proof beyond a reasonable doubt was not the standard by which guilt was determined when the Bill of Rights was drafted in 1789. This may explain the absence of the phrase in the constitution. Nor was it an element of due process. Quantifying reasonable doubt
One of the earliest attempts to quantify reasonable doubt was a 1971 article by Rita Simon and Linda Mahan, "Quantifying Burdens of Proof—A View from the Bench, the Jury, and the Classroom." In a later analysis of the question ("Distributions of Interest for Quantifying Reasonable Doubt and Their Applications," 2006, three students at Valparaiso University presented a trial to groups of students. Half of the students decided the guilt or innocence of the defendant. The other half recorded their perceived likelihood, given as a percentage, that the defendant committed the crime. They then matched the highest likelihoods of guilt with the guilty verdicts and the lowest likelihoods of guilt with the innocent verdicts. From this, the researchers gauged that the cutoff for reasonable doubt fell somewhere between the highest likelihood of guilt matched to an innocent verdict and the lowest likelihood of guilt matched to a guilty verdict. From these samples, they concluded that the standard was between 0.70 and 0.74.
The majority of law theorists believe that reasonable doubt cannot be quantified. It is more a qualitative than a quantitative concept. As Rembar notes, "Proof beyond a reasonable doubt is a quantum without a number." Non-legal standards Beyond the shadow of a doubt
Main article: Beyond the shadow of a doubt
Beyond the shadow of a doubt is the most strict standard of proof. It requires that there be no doubt as to the issue. Widely considered an impossible standard, a situation stemming from the nature of knowledge itself, it is valuable to mention only as a comment on the fact that evidence in a court never need reach this level. This phrase, has, nonetheless, come to be associated with the law in popular culture. Examples Criminal law
In the West, criminal cases usually place the burden of proof on the prosecutor (expressed in the Latin brocard ei incumbit probatio qui dicit, non que negat, "the burden of proof rests on who asserts, not on who denies"). This principle is known as the presumption of innocence, and is summed up with "innocent until proven guilty," but is not upheld in all legal systems or jurisdictions. Where it is upheld, the accused will be found not guilty if this burden of proof is not sufficiently shown by the prosecution.
The presumption of innocence means three things:With respect to the critical facts of a case the defendant has no burden of proof whatsover. The state must prove the critical facts of the case to the appropriate level of certainty. The jury is not to draw any inferences adverse to the defendant from the fact that he has been charged with a crime and is present in court represented by counsel to face the charges against him.
The presumption of innocence does not mean that the jury or anyone else must pretend or assume that the defendant is in fact innocent of the charges. Nothing the jury does can alter the fact that the defendant did or did not commit the offense. There is no intermediate state.
For example, if the defendant (D) is charged with murder, the prosecutor (P) bears the burden of proof to show the jury that D did murder someone.Burden of proof: P Burden of production: P has to show some evidence that D had committed murder. The United States Supreme Court has ruled that the Constitution requires enough evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. If the judge rules that such burden has been met, then of course it is up to the jury itself to decide if they are, in fact, convinced of guilty beyond a reasonable doubt. If the judge finds there is not enough evidence under the standard, the case must be dismissed (or a subsequent guilty verdict must be vacated and the charges dismissed). e.g. witness, forensic evidence, autopsy report Failure to meet the burden: the issue will be decided as a matter of law (the judge makes the decision), in this case, D is presumed innocent Burden of persuasion: if at the close of evidence, the jury cannot decide if P has established with relevant level of certainty that D had committed murder, the jury must find D not guilty of the crime of murder Measure of proof: P has to prove every element of the offence beyond a reasonable doubt, but not necessarily prove every single fact beyond a reasonable doubt.
In other countries, criminal law reverses the burden of proof, and there is a presumption of guilt.
However, in England and Wales, the Magistrates' Courts Act 1980, s.101 stipulates that where a defendant relies on some "exception, exemption, proviso, excuse or qualification" in his defence, the legal burden of proof as to that exception falls on the defendant, though only on the balance of probabilities. For example, a person charged with being drunk in charge of a motor vehicle can raise the defence that there was no likelihood of his driving while drunk. The prosecution have the legal burden of proof beyond reasonable doubt that the defendant exceeded the legal limit of alcohol and was in control of a motor vehicle. Possession of the keys is usually sufficient to prove control, even if the defendant is not in the vehicle and is perhaps in a nearby bar. That being proved, the defendant has the legal burden of proof on the balance of probabilities that he was not likely to drive.
Similar rules exist in trial on indictment. Some defences impose an evidential burden on the defendant which, if met, imposes a legal burden on the prosecution. For example, if a person charged with murder pleads the right of self-defense, the defendant must satisfy the evidential burden that there are some facts suggesting self-defence. The legal burden will then fall on the prosecution to prove beyond reasonable doubt that the defendant was not acting in self-defence.
In 2002, such practice in England and Wales was challenged as contrary to the European Convention on Human Rights (ECHR), art.6(2) guaranteeing right to a fair trial. The House of Lords held that such burdens were not contrary to the ECHR: A mere evidential burden did not contravene art.6(2); A legal / persuasive burden did not necessarily contravene art.6(2) so long as confined within reasonable limits, considering the questions: What must the prosecution prove to transfer burden to the defendant?Is the defendant required to prove something difficult or easily within his access?What is threat to society that the provision is designed to combat? Civil law
In civil law cases, the "burden of proof" requires the plaintiff to convince the trier of fact (whether judge or jury) of the plaintiff's entitlement to the relief sought. This means that the plaintiff must prove each element of the claim, or cause of action, in order to recover.
The burden of proof must be distinguished from the "burden of going forward," which simply refers to the sequence of proof, as between the plaintiff and defendant. The two concepts are often confused. Decisions by the U.S. Supreme Court
In Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973), the United States Supreme Court stated: “There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, ‘is merely a question of policy and fairness based on experience in the different situations.’” For support, the Court cited 9 John H. Wigmore, Evidence § 2486, at 275 (3d ed. 1940). In Keyes, the Supreme Court held that if “school authorities have been found to have practiced purposeful segregation in part of a school system,” the burden of persuasion shifts to the school to prove that it did not engaged in such discrimination in other segregated schools in the same system.
In Director, Office of Workers’ Compensation Programs v. Greenwich Collieries, 512 U.S. 267 (1994), the Supreme Court explained that burden of proof is ambiguous because it has historically referred to two distinct burdens: the burden of persuasion, and the burden of production.
The Supreme Court discussed how courts should allocate the burden of proof (i.e., the burden of persuasion) in Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49 (2005). The Supreme Court explained that if a statute is silent about the burden of persuasion, the court will “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” In support of this proposition, the Court cited 2 J. Strong, McCormick on Evidence § 337, 412 (5th ed. 1999), which states:The burdens of pleading and proof with regard to most facts have been and should be assigned to the plaintiff who generally seeks to change the present state of affairs and who therefore naturally should be expected to bear the risk of failure of proof or persuasion.
At the same time, the Supreme Court also recognized “The ordinary default rule, of course, admits of exceptions.” “For example, the burden of persuasion as to certain elements of a plaintiff's claim may be shifted to defendants, when such elements can fairly be characterized as affirmative defenses or exemptions. See, e.g., FTC v. Morton Salt Co., 334 U.S. 37, 44-45 (1948). Under some circumstances this Court has even placed the burden of persuasion over an entire claim on the defendant. See Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461 (2004).” Nonetheless, “[a]bsent some reason to believe that Congress intended otherwise, therefore, [the Supreme Court] will conclude that the burden of persuasion lies where it usually falls, upon the party seeking relief.” Burden of Proof in Epistemology and Scientific Methodology. The Fallacy of Demanding Negative Proof
Outside a legal context, "burden of proof" means that someone suggesting a new theory or stating a claim must provide evidence to support it: it is not sufficient to say "you can't disprove this." Specifically, when anyone is making a bold claim, and especially a positive claim, it is not someone else's responsibility to disprove the claim, but is rather the responsibility of the person who is making the bold claim to prove it. In short, X is not proven simply because "not X" cannot be proven (see negative proof). Considerations
Taken more generally, the standard of proof demanded to establish any particular conclusion varies with the subject under discussion. Just as there is a difference between the standard required for a criminal conviction and in a civil case, so there are different standards of proof applied in many other areas of life. Some considerations follow.How neatly does the claim fit into the current body of scientific knowledge? How coherent and complete is/are the mechanism(s) offered as the cause(s) of the effect being claimed? How independent is the claim of other suspect or controversial claims?
It is important to note the distinctions between various types of claims. StatementBurden of Proof Elvis is alive. -------------------------------------------------------------------------- Elvis is probably alive. ---------------------------------------------------- Elvis is possibly alive. -------------------------------- I don't know whether Elvis is alive. Elvis is possibly not alive. -- Elvis is probably not alive. ---- Elvis is not alive. ------
Note first that the person with no belief has no burden of proof.
Next, note that negative and positive claims are not always symmetrical in respect to initial burden of proof.
Unless attenuated by conventional knowledge which has been presumably derived from evidence, raw positive claims (e.g., "Life on other planets does exist.") have the initial burden of proof. When we say "positive claim" we are normally talking about a claim that would extend ontology. "Fairies exist" and "fairies are imaginary" are both syntactically positive statements, but only "fairies exist" is ontologically positive, so it is this statement that has the inherent heavier burden of proof.
Conventional knowledge is an important consideration in determining burden of proof. In the Elvis example, convention assumes that Elvis is not alive due to lines of evidence. Therefore the burden of proof falls much more heavily on the one suggesting that Elvis is, in fact, alive. Note that not all conventional knowledge is equal. Urban myths and various other superstitions for which the evidence is suspect, despite their popularity, have not the strength of mainstream science.
Examples in Science As a general rule, the less reasonable, less coherent and less embedded within conventional knowledge a claim appears, the more proof it requires. The scientific consensus on cold fusion is a good example. The majority of physicists believe this is not possible, since believing that it would work would force the alteration or abandonment of a great many other tested and generally accepted theories about nuclear physics. Examples in Metaphysics
As introduced in 4.2, in cases where the referent of a positive claim is of an uncommon or immaterial nature, or is unaccompanied by an explanation of causal mechanisms, a default to belief in the claim is not warranted. The proper default is skepticism. Here the burden of proof lies with the positive claimant, not with the skeptic. If one man claims Thor is real, and another claims Thor is not real, they do not share equal burden of proof. The onus falls upon the positive claimant to the degree that the claims falls outside the corpus of scientific knowledge.
If a claim contains an absurd or illogical concept such as the claim of a square circle, the entire claim can be dismissed on the grounds of incoherence without invoking burden of proof.
Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. Where appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.
However, where the exercise of discretion goes beyond constraints set down by legislation, by binding precedent, or by a constitution, the court may be abusing its discretion and undermining the rule of law. In that case, the decision of the court may be ultra vires, and may sometimes be characterized as judicial activism.
Chief Justice John Marshall wrote the following on this subject:Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.
Concerns with regard to recidivism and other law and order issues have led to the introduction of mandatory sentencing laws which significantly limit judicial discretion in sentencing, particularly in the United States.
Domestic violence, also known as domestic abuse, spousal abuse, child abuse or intimate partner violence (IPV), can be broadly defined a pattern of abusive behaviors by one or both partners in an intimate relationship such as marriage, dating, family, friends or cohabitation. Domestic violence has many forms including physical aggression (hitting, kicking, biting, shoving, restraining, throwing objects), or threats thereof; sexual abuse; emotional abuse; controlling or domineering; intimidation; stalking; passive/covert abuse (e.g., neglect); and economic deprivation. Domestic violence may or may not constitute a crime, depending on local statues, severity and duration of specific acts, and other variables. Alcohol consumption and mental illness have frequently been associated with spousal abuse.
Awareness, perception and documentation of domestic violence differs from country to country, and from era to era. Estimates are that only about a third of cases of domestic violence are actually reported in the United States and the United Kingdom. According to the Centers for Disease Control, domestic violence is a serious, preventable public health problem affecting more than 32 million Americans, or over 10% of the U. S. population.
Violence between spouses has long been considered a serious problem. The United States has a lengthy history of legal precedent condemning spousal abuse. In 1879, law scholar Nicholas St. John Green wrote, "The cases in the American courts are uniform against the right of the husband to use any [physical] chastisement, moderate or otherwise, toward the wife, for any purpose." Green also cites the 1641 Body of Liberties of the Massachusetts Bay colonists -— one of the first legal documents in North American history —- as an early de jure condemnation of violence by either spouse.
Popular emphasis has tended to be on women as the victims of domestic violence. Many studies show that women suffer greater rates of injury due to domestic violence, and some studies show that women suffer higher rates of assault. Yet, other statistics show that while men tend to inflict injury at higher rates, the majority of domestic violence overall is reciprocal.
Modern attention to domestic violence began in the women's movement of the 1970s, particularly within feminism and women's rights, as concern about wives being beaten by their husbands gained attention. Only since the late 1970s, and particularly in the masculism and men's movements of the 1990s, has the problem of domestic violence against men gained any significant attention. Estimates show that 30 of every 1,000 females and 45 of every 1,000 males are victims of severe violence committed by their spouses. A 1997 report says significantly more men than women do not disclose the identity of their attacker. A 2009 study showed that there was greater acceptance for abuse perpetrated by females than by males.
The term "intimate partner violence" (IPV) is often used synonymously with domestic abuse/domestic violence. Family violence is a broader definition, often used to include child abuse, elder abuse, and other violent acts between family members. Wife abuse, wife beating, and battering are descriptive terms that have lost popularity recently for at least two reasons:Acknowledgment that many victims are not actually married to the abuser, but rather cohabiting or other arrangement Abuse can take other forms than physical abuse and males are often victims of violence as well. Other forms of abuse may be constantly occurring, while physical abuse happens occasionally.
These other forms of abuse have the potential to lead to mental illness, self-harm, and even attempts at suicide.
Amartya Sen calculated that more than 100 million females and follow up studies showed that between 60 million and 107 million women are missing worldwide.
The U. S. Office on Violence Against Women (OVW) defines domestic violence as a "pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner". The definition adds that domestic violence "can happen to anyone regardless of race, age, sexual orientation, religion, or gender", and that it can take many forms, including physical abuse, sexual abuse, emotional, economic, and psychological abuse.
The Children and Family Court Advisory and Support Service in the United Kingdom in its "Domestic Violence Policy" uses domestic violence to refer to a range of violent and abusive behaviours, defining it as:Patterns of behaviour characterised by the misuse of power and control by one person over another who are or have been in an intimate relationship. It can occur in mixed gender relationships and same gender relationships and has profound consequences for the lives of children, individuals, families and communities. It may be physical, sexual, emotional and/or psychological. The latter may include intimidation, harassment, damage to property, threats and financial abuse.
In Spain, the 2004 Measures of Integral Protection against Gendered Violence defined gendered violence as a violence that is directed at women for the very fact of being women. The law acknowledges that women are considered by their attackers as lacking the basic rights of freedom, respect, and decision making capability. The law established Courts of "Violence against Women" and suspended presumption of innocence for men accused of domestic violence. Spanish Courts are empowered to hold closed door hearings before trial and evict men from their homes; suspend parental rights, child custody, or visitation rights; and bar men from possessing weapons. Forms of abuse
All forms of domestic abuse have one purpose: to gain and maintain total control over the victim. Abusers use many tactics to exert power over their spouse or partner: dominance, humiliation, isolation, threats, intimidation, denial and blame. Direct physical violence ranging from unwanted physical contact to rape and murder Indirect physical violence may include destruction of objects, striking or throwing objects near the victim, or harm to pets Mental or emotional abuse including verbal threats of physical violence to the victim, the self, or others including children, and verbal violence including threats, insults, put-downs, and attacks Nonverbal threats may include gestures, facial expressions, and body postures Psychological abuse may also involve economic and/or social control such as controlling the victim's money and other economic resources, preventing the victim from seeing friends and relatives, actively sabotaging the victim's social relationships, and isolating the victim from social contacts Physical violence
Physical violence is the intentional use of physical force with the potential for causing injury, harm, disability, or death, for example, hitting, shoving, biting, restraint, kicking, or use of a weapon. Sexual abuse
Sexual abuse is common in abusive relationships. is divided into three categories: The National Coalition Against Domestic Violence reports that between one-third and one-half of all battered women are raped by their partners at least once during their relationship. Any situation in which force is used to obtain participation in unwanted, unsafe, or degrading sexual activity constitutes sexual abuse. Forced sex, even by a spouse or intimate partner with whom consensual sex has occurred, is an act of aggression and violence. Furthermore, women whose partners abuse them physically and sexually are at a higher risk of being seriously injured or killed.
Some examples of sexual abuse include:Use of physical force to compel a person to engage in a sexual act against his or her will, whether or not the act is completed; Attempted or completed sex act involving a person who is unable to understand the nature or condition of the act, unable to decline participation, or unable to communicate unwillingness to engage in the sexual act, e.g., because of underage immaturity, illness, disability, or the influence of alcohol or other drugs, or because of intimidation or pressure; and Abusive sexual contact Emotional abuse
Emotional abuse (also called psychological abuse or mental abuse) can include humiliating the victim privately or publicly, controlling what the victim can and cannot do, withholding information from the victim, deliberately doing something to make the victim feel diminished or embarrassed, isolating the victim from friends and family, implicitly blackmailing the victim by harming others when the victim expresses independence or happiness, or denying the victim access to money or other basic resources and necessities.
People who are being emotionally abused often feel as if they do not own themselves; rather, they may feel that their significant other has nearly total control over them. Women or men undergoing emotional abuse often suffer from depression, which puts them at increased risk for suicide, eating disorders, and drug and alcohol abuse. Economic abuse
Economic abuse is when the abuser has complete control over the victim's money and other economic resources. Usually, this involves putting the victim on a strict "allowance", withholding money at will and forcing the victim to beg for the money until the abuser gives them some money. It is common for the victim to receive less money as the abuse continues. This also includes (but is not limited to) preventing the victim from finishing education or obtaining employment, or intentionally squandering or misusing communal resources. Stalking
Main article: Stalking
Stalking is often considered a type of psychological intimidation that causes a victim to feel a high level of fear. Victimization Statistics
Main article: Incidence of domestic violence
Domestic violence occurs across the world, in various cultures, and affects people across society, irrespective of economic status. Without exception, family conflict studies find approximately equal rates of assaults by women and men. In the United States, according to the Bureau of Justice Statistics women are about six times as likely as men to experience intimate partner violence. Percent of women surveyed (national surveys) who were ever physically assaulted by an intimate partner: Barbados (30%), Canada (29%), Egypt (34%), New Zealand (35%), Switzerland (21%), United States (22%). Some surveys in specific places report figures as high as 50-70% of women surveyed who were ever physically assaulted by an intimate partner. Others, including surveys in the Philippines and Paraguay, report figures as low as 10%. South Africa is said to have the highest statistics of gender-based violence in the world and this includes rape and domestic violence (Foster 1999; The Integrated Regional Network [IRIN], Johannesburg, South Africa, 25 May 2002). 80% of women surveyed in rural Egypt said that beatings were common and often justified, particularly if the woman refused to have sex with her husband. In India, around 70% of women are victims of domestic violence. The Human Rights Watch found that up to 90% of women in Pakistan were subject to verbal, sexual, emotional or physical abuse, within their own homes. Up to two-thirds of women in certain communities in Nigeria's Lagos State say they are victims to domestic violence. Statistics published in 2004, show that the rate of domestic violence victimisation for Indigenous women in Australia may be 40 times the rate for non-Indigenous women. The rate of intimate partner violence in the U. S. has declined since 1993. The rate of minor assaults by women was 78 per 1,000 couples, compared with a rate for men of 72 per 1,000. The severe assault rate was 46 per 1,000 couples for assaults by women and 50 per 1,000 for assaults by men. Neither difference is statistically significant. Since these rates are based exclusively on information provided by women respondents, the near-equality in assault rates cannot be attributed to a gender bias in reporting." Strauss, Murray A. (2005) Results will vary, depending on specific wording of survey questions, how the survey is conducted, the definition of abuse or domestic violence used, the willingness or unwillingness of victims to admit that they have been abused and other factors.
Surprising to some is the fact that the majority of domestic violence is reciprocal. Martin S. Fiebert examined 219 studies on intimate partner violence and concluded that "women are as physically aggressive or more aggressive than men in their relationships with their spouses or male partners". However, studies have shown that women are more likely to be injured. Archer's meta-analysis found that women suffer 65% of domestic violence injuries. A Canadian study showed that 7% of women and 6% of men were abused by their current or former partners, but female victims of spousal violence were more than twice as likely to be injured as male victims, three times more likely to fear for their life, twice as likely to be stalked, and twice as likely to experience more than ten incidents of violence. However, Strauss notes that Canadian studies on domestic violence have simply excluded questions that ask men about being victimized by their wives.
Some studies show that lesbian relationships have similar levels of violence as heterosexual relationships, while other studies report that lesbian relationships exhibit substantially higher rates of physical aggression. Violence against women
Main article: Violence against women
In India, every two hours a "bride burning" occurs because the woman had a small dowry or so that her husband can remarry.
Between 1993 and 2001, U. S. women experienced intimate partner violence almost seven times more frequently than men (a ratio of 20:3). Statistics for the year 1994 showed that more than five times as many females were victimized by an intimate than were males.
There is currently limited research on the abuse of lesbian women by their lesbian partners. However, an investigation by the Canadian Government saw some 19% of a survey of lesbian women respond to being victims of their partners. During pregnancy
Domestic violence during pregnancy can be missed by medical professionals because it often presents in non-specific ways. A number of countries have been statistically analyzed to calculate the prevalence of this phenomenon:UK prevalence: 2.5-3.4% USA prevalence: 3.2-33.7% Ireland prevalence: 12.5% Rates are higher in teenagers Severity and frequency increase postpartum (10% antenatally vs. 19% postnatally); 21% at 3 months post partum
There are a number of presentations that can be related to domestic violence during pregnancy: delay in seeking care for injuries; late booking, non-attenders at appointments, self-discharge; frequent attendance, vague problems; aggressive or over-solicitous partner; burns, pain, tenderness, injuries; vaginal tears, bleeding, STDs; and miscarriage.
Domestic violence can also affect the fetus, the subsequent baby, and existing children:Pre-birth: prematurity, Premature rupture of membranes, IUD Psychosocial: interference in relationship, witnessing of violence, eating and sleeping disorders, emotional neediness, withdrawn, over-compliant, clingy, aggressive, problems at school, suicidal ideation Legal: child protection issues, overlap with child abuse Long-term chronic ill-health
Violence against men Women's violence towards men is a serious social problem. While much attention has been focused on domestic violence against women, researchers argue that domestic violence against men is a substantial social problem worthy of attention. However, the issue of victimization of men by women has been contentious, due in part to studies which report drastically different statistics regarding domestic violence.
Some studies—typically crime studies—show that men are substantially more likely than women to use violence. According to a July 2000 Centers for Disease Control (CDC) report, data from the Bureau of Justice, National Crime Victimization Survey consistently show that women are at significantly greater risk of intimate partner violence than are men. Other studies—typically family and domestic violence studies—show that men are more likely to inflict injuries, but also that when all acts of physical aggression or violence are considered in aggregate, women are equally violent as men, or more violent than men In May, 2007, researchers with the Centers for Disease Control reported on rates of self-reported violence among intimate partners using data from a 2001 study. In the study, almost one-quarter of participants reported some violence in their relationships. Half of these involved one-sided ("non-reciprocal") attacks and half involved both assaults and counter assaults ("reciprocal violence"). Women reported committing one-sided attacks more than twice as often as men (70% versus 29%). In all cases of intimate partner violence, women were more likely to be injured than men, but 25% of men in relationships with two-sided violence reported injury compared to 20% of women reporting injury in relationships with one-sided violence. Women were more likely to be injured in non-reciprocal violence.
Strauss argues that these discrepancies between the two data sets are due to several factors. For example, Strauss notes that crime statistics are compiled and analyzed differently from domestic violence statistics. Additionally, Strauss notes that most studies show that while men inflict the greater portion of injuries, women are at least as likely as men to shove, punch, slap or otherwise physically assault their partner, and that such relatively minor assaults often escalate to more serious assaults. Minor assaults perpetrated by women are also a major problem, even when they do not result in injury, because they put women in danger of much more severe retaliation by men. It will be argued that in order to end 'wife beating,' it is essential for women also to end what many regard as a "harmless" pattern of slapping, kicking, or throwing something at a male partner. Strauss also notes that data confirming that women can be violent have been suppressed because the data contradicts preconceptions that men are responsible for most or all domestic violence.
The 2000 CDC report, based on phone interviews with 8000 men and 8000 women, reported that 7.5% of men claim to have been raped or assaulted by an intimate at some time in their life time (compared to 25% of women), and 0.9 percent of men claim to have been raped or assaulted in the previous 12 months (compared to 1.5% of women).
A 2007-2008 online non-random, self-report survey of the experiences and health of men who sustained partner violence in the past year. The study showed that male victims of IPV are very hesitant to report the violence or seek help. Reasons given for non-reporting were they (1) may be ashamed to come forward; (2) may not be believed; and (3) may be accused of being a batterer when they do come forward. The 229 U.S. heterosexual men, between 18 and 59, had been physically assaulted by their female partner within previous year and did seek help. The researchers say their findings emphasize the need for prevention on all levels:Primary prevention: Educate public and providers that both sexes can be IPV victims Secondary prevention: First responders (police, hotlines, medical professionals) should take concerns seriously from all individuals (including males) seeking help Tertiary prevention: Rehabilitative services available to all individuals Violence against children
Main articles: Child abuse, Child protection, and Child sexual abuse
The U. S. Department of Health and Human Services reports that for each year between 2000 and 2005, "female parents acting alone" were most common perpetrators of child abuse.
When it comes to domestic violence towards children involving physical abuse, research in the UK by the NSPCC indicated that "most violence occurred at home" (78 per cent). 40—60% of men and women who abuse other adults also abuse their children.Girls whose fathers batter their mothers are 6.5 times more likely to be sexually abused by their fathers than are girls from non-violent homes.
In China in 1989, 39,000 baby girls died during their first year of life because they didn't receive the same medical care that would be given to a boy offspring.
Counting only Asia, about one million children working in the sex trade are held in slavery-like conditions. Violence against teens
Main article: Teen dating violence
Teen dating violence is a pattern of controlling behavior by one teenager over another teenager who are in a dating relationship. While there are many similarities to "traditional" domestic violence there are also some differences. Teens are much more likely than adults to become isolated from their peers as the result of controlling behavior by their boyfriend/girlfriend. Also, for many teens the abusive relationship may be their first dating experience and have never had a "normal" dating experience with which to compare it. 2005 World Health Organization Multi-country Study
The World Conference on Human Rights, held in Vienna in 1993, and the Declaration on the Elimination of Violence against Women in the same year, concluded that civil society and governments have acknowledged that violence against women is a public health and human rights concern. Work in this area has resulted in the establishment of international standards, but the task of documenting the magnitude of violence against women and producing reliable, comparative data to guide policy and monitor implementation has been exceedingly difficult. The World Health Organisation Multi-country Study on Women's Health and Domestic Violence against Women 2005is a response to this difficulty. Published in 2005 it is a groundbreaking study which analysed data from 10 countries and sheds new light on the prevalence of violence against women. It seeks to look at violence against women a public health policy perspective. The findings will be used to inform a more effective response from government, including the health, justice and social service sectors, as a step towards fulfilling the state’s obligation to eliminate violence against women under international human rights laws. Types
The form and characteristics of domestic violence and abuse may vary in other ways. Michael P. Johnson (1995, 2006b) argues for three major types of intimate partner violence. The typology is supported by subsequent research and evaluation by Johnson and his colleagues, as well as independent researchers.
Distinctions need to be made regarding types of violence, motives of perpetrators, and the social and cultural context. Violence by a man against his wife or intimate partner is often done as a way for men to control "their woman". Other types of intimate partner violence also occur, including violence between gay and lesbian couples, and by women against their male partners.
Distinctions are not based on single incidents, but rather on patterns across numerous incidents and motives of the perpetrator. Types of violence identified by Johnson: Common couple violence (CCV) is not connected to general control behavior, but arises in a single argument where one or both partners physically lash out at the other. Intimate terrorism is one element in a general pattern of control by one partner over the other. Intimate terrorism is more common than common couple violence, more likely to escalate over time, not as likely to be mutual, and more likely to involve serious injury. Intimate terrorism (IT) may also involve emotional and psychological abuse. Violent resistance (VR), sometimes thought of as "self-defense", is violence perpetrated usually by women against their abusive partners. Mutual violent control (MVC) is rare type of intimate partner violence occurs when both partners act in a violent manner, battling for control.
Another type is situational couple violence, which arises out of conflicts that escalate to arguments and then to violence. It is not connected to a general pattern of control. Although it occurs less frequently in relationships and is less serious than intimate terrorism, in some cases it can be frequent and/or quite serious, even life-threatening. This is probably the most common type of intimate partner violence and dominates general surveys, student samples, and even marriage counseling samples.
Types of male batterers identified by Holtzworth-Munroe and Stuart (1994) include "family-only", which primarily fall into the CCV type, who are generally less violent and less likely to perpetrate psychological and sexual abuse. IT batterers include two types: "Generally-violent-antisocial" and "dysphoric-borderline". The first type includes men with general psychopathic and violent tendencies. The second type are men who are emotionally dependent on the relationship. Support for this typology has been found in subsequent evaluations.
Others, such as the US Centers for Disease Control, divide domestic violence into two types: reciprocal violence, in which both partners are violent, and non-reciprocal violence, in which one partner is violent. Theories
There are many different theories as to the causes of domestic violence. These include psychological theories that consider personality traits and mental characteristics of the offender, as well as social theories which consider external factors in the offender's environment, such as family structure, stress, social learning. As with many phenomena regarding human experience, no single approach appears to cover all cases. Psychological
In general, about 80% of both court-referred and self-referred men in these [domestic violence] studies exhibited diagnosable psychopathology, typically personality disorders. Estimates of personality disorder in the general population would be more in the 15-20% range [...] As violence becomes more severe and chronic, the likelihood of psychopathology in these men approaches 100%." Psychological theories focus on personality traits and mental characteristics of the offender. Personality traits include sudden bursts of anger, poor impulse control, and poor self-esteem. Various theories suggest that psychopathology and other personality disorders are factors, and that abuse experienced as a child leads some people to be more violent as adults. Studies have found high incidence of psychopathy among abusers. Dutton has suggested a psychological profile of men who abuse their wives, arguing that they have borderline personalities (between psychotics and neurotics), which are developed early in life. Gelles suggests that psychological theories are limited, and points out that other researchers have found that only 10% (or less) fit this psychological profile. He argues that social factors are important, while personality traits, mental illness, or psychopathy are lesser factors.
It should be noted that Borderline Personality Disorder as used in this context is outdated. Whilst it was originally believed that a person's psychological state was between neurotic and psychotic it is now recognised that BPD is the most severe and intransigent of the personality disorders. Social theories
Looks at external factors in the offender's environment, such as family structure, stress, social learning, and includes rational choice theories. Resource theory
Resource theory was suggested by William Goode (1971). Women who are most dependent on the spouse for economic well being.[clarification needed] Having children to take care of, should they leave the marriage, increases the financial burden and makes it all the more difficult for them to leave. Dependency means that they have fewer options and few resources to help them cope with or change their spouse's behavior.
Couples that share power equally experience lower incidence of conflict, and when conflict does arise, are less likely to resort to violence. If one spouse desires control and power in the relationship, the spouse may resort to abuse. This may include coercion and threats, intimidation, emotional abuse, economic abuse, isolation, making light of the situation and blaming the spouse, using children (threatening to take them away), and behaving as "master of the castle". Social stress
Stress may be increased when a person is living in a family situation, with increased pressures. Social stresses, due to inadequate finances or other such problems in a family may further increase tensions. Violence is not always caused by stress, but may be one way that some (but not all) people respond to stress. Families and couples in poverty may be more likely to experience domestic violence, due to increased stress and conflicts about finances and other aspects. Some speculate that poverty may hinder a man's ability to live up to his idea of "successful manhood", thus he fears losing honor and respect. Theory suggests that when he is unable to economically support his wife, and maintain control, he may turn to misogyny, substance abuse, and crime as ways to express masculinity. Social learning theory
Social learning theory suggests that people learn from observing and modeling after others' behavior. With positive reinforcement, the behavior continues. If one observes violent behavior, one is more likely to imitate it. If there are no negative consequences (e. g. victim accepts the violence, with submission), then the behavior will likely continue. Often, violence is transmitted from generation to generation in a cyclical manner.
Power and control
In some relationships, violence is posited to arise out of a perceived need for power and control, a form of bullying and social learning of abuse.
Abusers' efforts to dominate their partners have been attributed to low self-esteem or feelings of inadequacy, unresolved childhood conflicts, the stress of poverty, hostility and resentment toward women (misogyny), hostility and resentment toward men (misandry), personality disorders, genetic tendencies and sociocultural influences, among other possible causative factors. Most authorities seem to agree that abusive personalities result from a combination of several factors, to varying degrees.
A causalist view of domestic violence is that it is a strategy to gain or maintain power and control over the victim. This view is in alignment with Bancroft's "cost-benefit" theory that abuse rewards the perpetrator in ways other than, or in addition to, simply exercising power over his or her target(s). He cites evidence in support of his argument that, in most cases, abusers are quite capable of exercising control over themselves, but choose not to do so for various reasons.
An alternative view is that abuse arises from powerlessness and externalizing/projecting this and attempting to exercise control of the victim. It is an attempt to 'gain or maintain power and control over the victim' but even in achieving this it cannot resolve the powerlessness driving it. Such behaviours have addictive aspects leading to a cycle of abuse or violence. Mutual cycles develop when each party attempts to resolve their own powerlessness in attempting to assert control.
Questions of power and control are integral to the widely utilized Duluth Domestic Abuse Intervention Project. They developed "Power and Control Wheel" to illustrate this: it has power and control at the center, surrounded by spokes (techniques used), the titles of which include:Coercion and threats Intimidation Emotional abuse Isolation Minimizing, denying and blaming Using children Economic abuse Male privilege
The model attempts to address abuse by one-sidedly challenging the misuse of power by the 'perpetrator'.
The power wheel model is not intended to assign personal responsibility, enhance respect for mutual purpose or assist victims and perpetrators in resolving their differences. It is an informational tool designed to help individuals understand the dynamics of power operating in abusive situations and identify various methods of abuse.
Critics of this model suggest that the one-sided focus, which presumes men are to blame for all domestic violence, is problematic. Alcohol-related and non-alcohol related violence
Other factors associated with domestic violence include heavy alcohol consumption, mental illness, classism, various political and legal characteristics such as authoritarianism and dehumanisation. Prescription drugs
It is also important to this topic to understand the paradoxical effects of some sedative drugs. Serious complications can occur in conjunction with the use of sedatives creating the opposite effect as to that intended. Malcolm Lader at the Institute of Psychiatry in London estimates the incidence of these adverse reactions at about 5%, even in short-term use of the drugs.The paradoxical reactions may consist of depression, with or without suicidal tendencies, phobias, aggressiveness, violent behavior and symptoms sometimes misdiagnosed as psychosis. The contribution of these reactions is one possible component. Sex and gender
Modes of abuse are stereotyped by some to be gendered, females tending to use more psychological and men more physical forms. The visibility of these differs markedly. However, experts who work with victims of domestic violence have noted that physical abuse is almost invariably preceded by psychological abuse. Police and hospital admission records indicate that a higher percentage of females than males seek treatment and report such crimes.
See also the section "Gender Differences" in this article, and some of the statistics in the subsection "U. S." in the "Statistics" section. Cycle of violence
Main articles: Cycle of violence and Cycle of abuse
Frequently, domestic violence is used to describe specific violent and overtly abusive incidents, and legal definitions will tend to take this perspective. However, when violent and abusive behaviours happen within a relationship, the effects of those behaviours continue after these overt incidents are over. Advocates and counsellors will refer to domestic violence as a pattern of behaviours, including those listed above.
Lenore Walker presented the model of a Cycle of violence which consists of three basic phases:Honeymoon Phase Characterized by affection, apology, and apparent end of violence. During this stage the batterer feels overwhelming feelings of remorse and sadness. Some batterers walk away from the situation, while others shower their victims with love and affection. Tension Building Phase Characterized by poor communication, tension, fear of causing outbursts. During this stage the victims try to calm the batterer down, to avoid any major violent confrontations. Acting-out Phase Characterized by outbursts of violent, abusive incidents. During this stage the batterer attempts to dominate his/her partner(victim), with the use of domestic violence.
Although it is easy to see the outbursts of the Acting-out Phase as abuse, even the more pleasant behaviours of the Honeymoon Phase serve to perpetuate the abuse. See also the cycle of abuse article.
Many domestic violence advocates believe that the cycle of violence theory is limited and does not reflect the realities of many men and women experiencing domestic violence. Gender differences
The role of gender is a controversial topic related to the discussion of domestic violence.
Erin Pizzey, the founder of an early women's shelter in Chiswick, London, has expressed her dismay at how domestic abuse has become a gender-political football, and expressed an unpopular view in her book Prone to Violence that roughly two-thirds of women in the refuge system had a predisposition to seek abusive relationships, and to inflict violence. Pizzey also expressed the view that domestic violence can occur against any vulnerable intimates, regardless of their gender.
A Freudian concept, repetition compulsion, has been cited as a possible cause of a woman who was abused in childhood seeking an abusive man (or vice versa), theoretically as a misguided way to "master" their traumatic experience. Gender aspects of abuse
There continues to be discussion about whether men are more abusive than women, whether men's abuse of women is worse than women's abuse of men, and whether abused men should be provided the same resources and shelters that years of advocacy, money-raising, and funding has gained for women victims sekä Carney (2007)
Martin S. Fiebert of the Department of Psychology at California State University, Long Beach, provides an annotated bibliography of over two hundred scholarly works which demonstrate that women and men often exhibit comparable levels of IPV violence. In a Los Angeles Times article about male victims of domestic violence, Fiebert suggests that "...consensus in the field is that women are as likely as men to strike their partner but that—as expected—women are more likely to be injured than men." However, he noted, men are seriously injured in 38% of the cases in which "extreme aggression" is used. Fiebert additionally noted that his work was not meant to minimize the serious effects of men who abuse women.
In a Meta-analysis, John Archer, Ph. D., from the Department of Psychology, University of Central Lancashire, UK, writes:The present analyses indicate that men are among those who are likely to be on the receiving end of acts of physical aggression. The extent to which this involves mutual combat or the male equivalent to “battered women” is at present unresolved. Both situations are causes for concern. Straus (1997) has warned of the dangers involved—especially for women—when physical aggression becomes a routine response to relationship conflict. “Battered men”—those subjected to systematic and prolonged violence—are likely to suffer physical and psychological consequences, together with specific problems associated with a lack of recognition of their plight (George and George, 1998). Seeking to address these problems need not detract from continuing to address the problem of “battered women."
Donald G. Dutton and Tonia L. Nicholls, from the Department of Psychology at the University of British Columbia also undertook a meta-analysis of data in 2005. They concluded:Clearly, shelter houses full of battered women demonstrate the need for their continued existence. Moreover, outside of North American and Northern Europe, gender inequality is still the norm (Archer, in press). However, within those countries that have been most progressive about women’s equality, female violence has increased as male violence has decreased (Archer, in press). There is not one solution for every domestically violent situation; some require incarceration of a terrorist perpetrator, others can be dealt with through court-mandated treatment, still others may benefit from couples therapy. However, feminist inspired intervention standards that preclude therapists in many states from doing effective therapy with male batterers are one outcome of this paradigm. The failure to recognize female threat to husbands, female partners, or children is another (Straus et al., 1980 found 10% higher rates of child abuse reported by mothers than by fathers). The one size fits all policy driven by a simplistic notion that intimate violence is a recapitulation of class war does not most effectively deal with this serious problem or represent the variety of spousal violence patterns revealed by research. At some point, one has to ask whether feminists are more interested in diminishing violence within a population or promoting a political ideology. If they are interested in diminishing violence, it should be diminished for all members of a population and by the most effective and utilitarian means possible. This would mean an intervention/treatment approach based on other successful approaches from criminology and psychology.
Theories that women are as violent as men have been dubbed "Gender Symmetry" theories. In the most serious violence the men do dominate for example in 1999 in the US, 1,218 women and 424 men were killed by an intimate partner, regardless of which partner started the violence and of the gender of the partner. On the other hand, Michael Kimmel of the State University of New York at Stony Brook found that men are more violent inside and outside of the home than women.
A problem in conducting studies that seek to describe violence in terms of gender is the amount of silence, fear and shame that results from abuse within families and relationships. Another is that abusive patterns can tend to seem normal to those who have lived in them for a length of time. Similarly, subtle forms of abuse can be quite transparent even as they set the stage for further abuse seeming normal. Finally, inconsistent definition of what domestic violence is makes definite conclusions difficult to reach when compiling the available studies.
Both men and women have been arrested and convicted of assaulting their partners in both heterosexual and homosexual relationships. The bulk of these arrests have been men being arrested for assaulting women. However, in the case of reciprocal violence, frequently only the male perpetrator is arrested. Determining how many instances of domestic violence actually involve male victims is difficult. Male domestic violence victims may be reluctant to get help for a number of reasons. Another study has demonstrated a high degree of acceptance by women of aggression against men.
Murders of female intimate partners by men have dropped, but not nearly as dramatically. Men kill their female intimate partners at about four times the rate that women kill their male intimate partners. Research by Jacquelyn Campbell, PhD RN FAAN has found that at least two thirds of women killed by their intimate partners were battered by those men prior to the murder. She also found that when males are killed by female intimates, the women in those relationships had been abused by their male partner about 75% of the time. (See battered person syndrome and battered woman defence.)
Some researchers have found a relationship between the availability of domestic violence services, improved laws and enforcement regarding domestic violence and increased access to divorce, and higher earnings for women with declines in intimate partner homicide. However, both men and women are far less likely to be abused when married to each other. The bulk of injuries from domestic violence involves co-habitation or the distresses of relationship break-ups.
Gender roles and expectations can and do play a role in abusive situations, and exploring these roles and expectations can be helpful in addressing abusive situations, as do factors like race, class, religion, sexuality and philosophy. None of these factors cause one to abuse or another to be abused. Concerns about social programs dealing with violence
In 1997, the Canadian Advertising Foundation ruled that a national ad campaign that featured Nicole Brown Simpson's sister Denise with the slogan "Stop violence against women" was in fact portraying only men as aggressors, that it was not providing a balanced message and was, in fact, contributing to gender stereotyping. (The murder of Nicole Simpson also included the murder of Ronald Goldman.) Domestic violence in same-sex relationships
Domestic violence also occurs in same-sex relationships. In an effort to be more inclusive, many organizations have made an effort to use gender-neutral terms when referring to perpetratorship and victimhood.
Historically domestic violence has been seen as a family issue and little interest has been directed at violence in same-sex relationships. It has not been until recently, as the gay rights movement has brought the issues of gay and lesbian people into public attention, when research has been conducted on same-sex relationships. Studies have indicated that partner abuse among male same-sex couples is several times that of heterosexual couples. Gays and lesbians, however, face special obstacles in dealing with the issues that some researchers have labeled "the double closet". A recent Canadian study by Mark W. Lehman suggests similarities include frequency (approximately one in every four couples); manifestations (emotional, physical, financial, etc.); co-existent situations (unemployment, substance abuse, low self-esteem); victims' reactions (fear, feelings of helplessness, hypervigilance); and reasons for staying (love, can work it out, things will change, denial). At the same time, significant differences, unique issues and deceptive myths are typically present. Lehman points to added discrimination and fear gays and lesbians can face; dismissal by police and some social services; a lack of support from peers who would rather keep quiet about the problem in order not to attract negative attention toward the gay community; the impacts of HIV status or AIDS in keeping partners together, due to health care insurance/access, or guilt; outing used as a weapon; and encountering supportive services that are targeted and/or structured for the needs of heterosexual women and which may not meet the needs of gay men or lesbians. Diagnosis planning
The American Psychiatric Association planning and research committees for the forthcoming DSM-V (2012) have canvassed a series of new Relational disorders which include Marital Conflict Disorder Without Violence or Marital Abuse Disorder (Marital Conflict Disorder With Violence). Couples with marital disorders sometimes come to clinical attention because the couple recognize long-standing dissatisfaction with their marriage and come to the clinician on their own initiative or are referred by an astute health care professional. Secondly, there is serious violence in the marriage which is -"usually the husband battering the wife" In these cases the emergency room or a legal authority often is the first to notify the clinician. Most importantly, marital violence "is a major risk factor for serious injury and even death and women in violent marriages are at much greater risk of being seriously injured or killed (National Advisory Council on Violence Against Women 2000)." The authors of this study add that "There is current considerable controversy over whether male-to-female marital violence is best regarded as a reflection of male psychopathology and control or whether there is an empirical base and clinical utility for conceptualizing these patterns as relational."
Recommendations for clinicians making a diagnosis of Marital Relational Disorder should include the assessment of actual or "potential" male violence as regularly as they assess the potential for suicide in depressed patients. Further, "clinicians should not relax their vigilance after a battered wife leaves her husband, because some data suggest that the period immediately following a marital separation is the period of greatest risk for the women. Many men will stalk and batter their wives in an effort to get them to return or punish them for leaving. Initial assessments of the potential for violence in a marriage can be supplemented by standardized interviews and questionnaires, which have been reliable and valid aids in exploring marital violence more systematically."
The authors conclude with what they call "very recent information" on the course of violent marriages which suggests that "over time a husband's battering may abate somewhat, but perhaps because he has successfully intimidated his wife. The risk of violence remains strong in a marriage in which it has been a feature in the past. Thus, treatment is essential here; the clinician cannot just wait and watch." The most urgent clinical priority is the protection of the wife because she is the one most frequently at risk, and clinicians must be aware that supporting assertiveness by a battered wife may lead to more beatings or even death.
Response to domestic violenceThe response to domestic violence is typically a combined effort between law enforcement agencies, the courts, social service agencies and corrections/probation agencies. The role of each has evolved as domestic violence has been brought more into public view.
Domestic violence historically has been viewed as a private family matter that need not involve government or criminal justice intervention. Police officers were often reluctant to intervene by making an arrest, and often chose instead to simply counsel the couple and/or ask one of the parties to leave the residence for a period of time. The courts were reluctant to impose any significant sanctions on those convicted of domestic violence, largely because it was viewed as a misdemeanor offense.
Activism, initiated by victim advocacy groups and feminist groups, has led to a better understanding of the scope and effect of domestic violence on victims and families, and has brought about changes in the criminal justice system's response.
Several projects have aided in filling the voids in the justice system as it pertains to the protection of victims. One such initiative, The Hope Card Project, makes an attempt to remedy several problems through the issuance of an ID card to victims of abuse. The card is used to identify both parties in a domestic violence protection order and provides additional resources to the victim through a voucher program for services."There is no photograph on a protection order, so a photograph is a bonus, not a necessity. There are several methods used to obtain the photograph. Some jurisdictions have a photograph taken of the offender during the first hearing while both parties are present. Another method is for officers to take a photograph in the field or retrieve a booking photograph from their local jail. In a lot of cases the victim brings a photograph and it is scanned. Lastly, the new online site has some state motor vehicle department photograph databases connected for that purpose. This is the ideal method." The Hope Card Project Medical response
Medical professionals, who have contact with abuse victims through medical visits, have a role to play in helping domestic violence victims. Many cases of spousal abuse are handled solely by medical professionals and do not involve the police. Sometimes cases of spousal abuse are brought into the emergency room, while many other cases are handled by family physician or other primary care provider.
Doctors and other medical professionals are in position to empower victims, give advice, and refer them to appropriate services. The health care professional in the United Kingdom, the United States, and elsewhere has not always met this role, been uneven in quality of care, and in many cases has been unhelpful due to misunderstandings they have about domestic violence. Myths that have prevailed in the past and influenced how a doctor approaches a case, where domestic violence may be involved, include the belief that domestic violence is rare, that women are responsible for the violence, and it is inevitable. Washaw (1993) suggests that many doctors prefer not to get involved in people's "private" lives. Clifton, Jacobs, and Tulloch (1996) found that training for general practitioners in the United States about domestic violence was very limited or they had no training. Abbott and Williamson found that knowledge and understanding of domestic violence was very limited among health care professionals in a Midlands, United Kingdom county, and that they don't see themselves as being able to play a major role in helping women in regards to domestic violence. Furthermore, in the biomedical model of health care, injuries are often just treated and diagnosed, without regard for the causes. As well, there is substantial reluctance for victims to come forward and broach the issue with their physicians. On average, women experience 35 incidents of domestic violence before seeking treatment.
In the U. S., the Institute of Medicine recognized the shortcomings of the health care system in its 2002 report entitled Confronting Chronic Neglect and attributed some of the problems cited to a lack of adequate training among health professionals. Health professionals have an ethical responsibility to recognize and address exposure to abuse in their patients, in the health care setting. For example, the American Medical Association's code of medical ethics states that "Due to the prevalence and medical consequences of family violence, physicians should routinely inquire about physical, sexual, and psychological abuse as part of the medical history. Physicians must also consider abuse in the differential diagnosis for a number of medical complaints, particularly when treating women." Longer term health effects
New research illustrates that there are strong associations between exposure to domestic violence and abuse in all their forms and higher rates of many chronic conditions. The strongest evidence comes from the Adverse Childhood Experiences' series of studies which show correlations between exposure to abuse or neglect and higher rates in adulthood of chronic conditions, high risk health behaviors and shortened life span. Evidence of the association between physical health and violence against women has been accumulating since the early 1990s. More recently work by such researchers as Corso have begun to quantify the economic impact of exposure to violence and abuse. A recent publication, Hidden Costs in Health Care: The Economic Impact of Violence and Abuse, makes the case that such exposure represents a serious and costly public health issue that should be addressed by the health care system. Medication
A number of medications have been used for control of aggression. Good evidence exists on the efficacy of clozapine. Evidence also exists for SSRIs (selective serotonin re-uptake ihibitors), like "Prozac", hormonal antiandrogenic agents, beta-blockers, quetiapine and aripiprazole. Lithium and anticonvulsants are widely used but their efficacy is not strongly supported. Law enforcement
In the 1970s, it was widely believed that domestic disturbance calls were the most dangerous type for responding officers, who arrive to a highly emotionally charged situation. This belief was based on FBI statistics which turned out to be flawed, in that they grouped all types of disturbances together with domestic disturbances, such as brawls at a bar. Subsequent statistics and analysis have shown this belief to be false.
Statistics on incidents of domestic violence, published in the late 1970s, helped raise public awareness of the problem and increase activism. A study published in 1976 by the Police Foundation found that the police had intervened at least once in the previous two years in 85 percent of spouse homicides. In the late 1970s and early 1980s, feminists and battered women's advocacy groups were calling on police to take domestic violence more seriously and change intervention strategies. In some instances, these groups took legal action against police departments, including in Oakland, California and New York City, to get them to make arrests in domestic violence cases. They claimed that police assigned low priority to domestic disturbance calls.
The Minneapolis Domestic Violence Experiment was a study done in 1981-1982, led by Lawrence W. Sherman, to evaluate the effectiveness of various police responses to domestic violence calls in Minneapolis, Minnesota, including sending the abuser away for eight hours, giving advice and mediation for disputes, and making an arrest. Arrest was found to be the most effective police response. The study found that arrest reduced the rate by half of re-offending against the same victim within the following six months. The results of the study received a great deal of attention from the news media, including The New York Times and prime-time news coverage on television. Many U. S. police departments responded to the study, adopting a mandatory arrest policy for spousal violence cases with probable cause.By 2005, 23 states and the District of Columbia had enacted mandatory arrest for domestic assault, without warrant, given that the officer has probable cause and regardless of whether or not the officer witnessed the crime. The Minneapolis study also influenced policy in other countries, including New Zealand, which adopted a pro-arrest policy for domestic violence cases.
However, the study was subject of much criticism, with concerns about its methodology, as well as its conclusions. The Minneapolis study was replicated in several other cities, beginning in 1986, with some of these studies have producing different results. In the replication studies, arrest seemed to help in the short run in some cases, but those arrested experienced double the rate of violence over the course of one year. Criminologists do not fully understand the reasons why deterrent effects do not last over time. But they suggest that abusers may initially fear punishment, though many cases do not make it all the way through the criminal justice process. If the victim is uncooperative during investigation, the prosecutor may choose not to pursue the case. If the case is pursued through the criminal justice system, sometimes the resulting sentence is minor. Subsequently, any fear that the abuser has of punishment may have diminished. Domestic response of law enforcement today
Each agency and jurisdiction within the United States has its own Standard Operating Procedures (SOP) when it comes to responding and handling domestic calls. Generally, it has been accepted that if the understood victim has visible (and recent) marks of abuse, the suspect is arrested and charged with the appropriate crime. However, that is a guideline and not a rule. Like any other call, domestic abuse lies in a gray area. Law enforcement officers have several things to consider when making a warrantless arrest:Are there signs of physical abuse? Were there witnesses? Is it recent? Was the victim assaulted by the alleged suspect? Who is the primary aggressor? Could the victim be lying? Could the suspect be lying?
Along with protecting the victim, law enforcement officers have to ensure that the alleged abusers' rights are not violated. Many times in cases of mutual combatants, it is departmental policy that both parties be arrested and the court system can establish truth at a later date. In some areas of the nation, this mutual combatant philosophy is being replaced by the primary abuser philosophy in which case if both parties have physical injuries, the law enforcement officer determines who the primary aggressor is and only arrest that one. This philosophy started gaining momentum when different government/private agencies started researching the effects. It was found that when both parties are arrested, it had an adverse affect on the victim. The victims were less likely to call or trust law enforcement during the next incident of domestic abuse. Intervention
See also: Duluth Model
In 1981, the Duluth Domestic Abuse Intervention Project became the first multi-disciplinary program designed to address the issue of domestic violence. This experiment, conducted in Duluth, Minnesota, frequently referred to as the "Duluth Project."
It coordinated agencies dealing with domestic situations, drawing together diverse elements of the system, from police officers on the street, to shelters for battered women and probation officers supervising offenders.
This program has become a model for other jurisdictions seeking to deal more effectively with domestic violence. Corrections/probation agencies in many areas are supervising domestic violence offenders more closely, and are also paying closer attention to the victim's needs and safety issues.
There has been controversy as the Duluth framework depends on a strict "patriarchal violence" model and presumes that all violence in the home and elsewhere has a male perpetrator and female victim. Also evidence of success of the model is limited, with scholarly analysis and critique.
Many victims leave their abusers, only to return. Research has shown that a major factor in helping a victim to establish lasting independence from the abusive partner is her or his ability to get legal assistance. Economists at the Brennan Center for Justice analyzed Bureau of Justice Statistics data to determine what accounted for the nationwide reduction in reported abuse. Their findings revealed that one significant factor was the availability of legal services to assist abuse victims. Another major study by economists at Colgate University and the University of Arkansas flatly stated that the only public service that reduces domestic violence in the long term is legal aid. Legal assistance can provide essential safety planning, buttress a family’s economic position through child or spousal support, allay fears planted by the batterer about loss of custody, and help victims to secure needed government benefits. See alsoAnnulment Child abuse Christianity and domestic violence Birth control sabotage Dating violence Divorce Islam and domestic violence Landeros v. Flood Psychological abuse Relational disorder Teen dating violence Violence against women WomensLaw.org
Types of stalkers
Psychologists often group individuals who stalk into two categories: psychotic and nonpsychotic. Many[quantify] stalkers have pre-existing psychotic disorders such as delusional disorder, schizoaffective disorder, or schizophrenia. Most stalkers are nonpsychotic and may exhibit disorders or neuroses such as major depression, adjustment disorder, or substance dependence, as well as a variety of Axis II personality disorders, such as antisocial, avoidant, borderline, dependent, narcissistic, or paranoia. Some of the symptoms of "obsessing" over a person is part of obsessive compulsive personality disorder. The nonpsychotic stalkers' pursuit of victims can be influenced by various psychological factors, including anger and hostility, projection of blame, obsession, dependency, minimization and denial, and jealousy. Conversely, as is more commonly the case, the stalker has no antipathic feelings towards the victim, but simply a longing that cannot be fulfilled due to[clarification needed] either in their personality or their society's norms.
In "A Study of Stalkers" Mullen et al.. (2000) identified five types of stalkers:Rejected stalkers pursue their victims in order to reverse, correct, or avenge a rejection (e.g. divorce, separation, termination). Resentful stalkers pursue a vendetta because of a sense of grievance against the victims – motivated mainly by the desire to frighten and distress the victim. Intimacy seekers seek to establish an intimate, loving relationship with their victim. To them, the victim is a long-sought-after soul mate, and they were 'meant' to be together. Incompetent suitors, despite poor social or courting skills, have a fixation, or in some cases a sense of entitlement to an intimate relationship with those who have attracted their amorous interest. Their victims are most often already in a dating relationship with someone else. Predatory stalkers spy on the victim in order to prepare and plan an attack – usually sexual – on the victim.
The 2002 National Victim Association Academy defines an additional form of stalking: The Vengeance/Terrorist stalker. Both the Vengeance stalker and Terrorist stalker (the latter sometimes called the political stalker) do not, in contrast with some of the aforementioned types of stalkers, seek a personal relationship with their victims but rather force them to emit a certain response favourable to the stalker. While the vengeance stalker's motive is "to get even" with the other person whom he/she perceives has done some wrong to them (i.e, an employee who believes is fired without justification from their job by their superior), the political stalker intends to accomplish a political agenda, also using threats and intimidation to force his/her target to refrain and/or become involved in some particular activity, regardless of the victim’s consent.
Many stalkers fit categories with paranoia disorders. Intimacy-seeking stalkers often have delusional disorders involving erotomanic delusions. With rejected stalkers, the continual clinging to a relationship of an inadequate or dependent person couples with the entitlement of the narcissistic personality, and the persistent jealousy of the paranoid personality. In contrast, resentful stalkers demonstrate an almost “pure culture of persecution,” with delusional disorders of the paranoid type, paranoid personalities, and paranoid schizophrenia.
One of the uncertainties in understanding the origins of stalking is that the concept is now widely understood in terms of specific behaviors --- as a US example, see January 2009 Special Report from the Department of Justice in the US titled "Stalking Victimization in the United States", NCJ 224527 --- which are found to be offensive and/or illegal. As discussed above, these specific (apparently stalking) behaviors may have multiple motivations.
In addition, the personality characteristics that are often discussed as antecedent to stalking may also produce behavior that is not stalking as conventionally defined. Some research suggests there is a spectrum of what might be called "obsessed following behavior." People who complain obsessively and for years, about a perceived wrong or wrong-doer, when no one else can perceive the injury—and people who cannot or will not "let go" of a person or a place or an idea—comprise a wider group of persons that may be problematic in ways that seem similar to stalking. Some of these people get extruded from their organizations—they may get hospitalized or fired or let go if their behavior is defined in terms of illegal stalking. But many others do good or even excellent work in their organizations and appear to have just one focus of tenacious obsession. (See Mary Rowe, "People With Delusions or Quasi-Delusions Who ‘Won't Let Go’," Journal of the University and College Ombuds Association, Occasional Paper, Number 1, Fall 1994.)
United StatesThe first state to criminalize stalking in the United States was California in 1990 due to several high profile stalking cases in California, including the 1982 attempted murder of actress Theresa Saldana, the 1988 massacre by Richard Farley, the 1989 murder of actress Rebecca Schaeffer, and five Orange County stalking murders also in 1989. The first anti-stalking law in the United States, California Penal Code Section 646.9, was developed and proposed by Municipal Court Judge John Watson of Orange County. Watson with U.S. Congressman Ed Royce introduced the law in 1990. Also in 1990, the Los Angeles Police Department (LAPD) began the United States' first Threat Management Unit, founded by LAPD Captain Robert Martin.
Within three years thereafter, every state in the United States followed suit to create the crime of stalking, under different names such as criminal harassment or criminal menace. The Driver's Privacy Protection Act (DPPA) was enacted in 1994 in response to numerous cases of a driver's information being abused for criminal activity, examples such as the Saldana and Schaeffer stalking cases. The DPPA prohibits states from disclosing a driver's personal information without consent by State Department of Motor Vehicles (DMV). The National Defense Authorization Act for Fiscal Year 2006 made stalking punishable under the Uniform Code of Military Justice (UCMJ). The law took effect on 1 October 2007. This law brings the UCMJ in line with federal laws against stalking. Laws against stalking in different jurisdictions vary, and so do the definitions. Some make the act illegal as it stands, while others do only if the stalking becomes threatening or endangers the receiving end. Many states in the US also recognize stalking as grounds for issuance of a civil restraining order. Since this requires a lower burden of proof than a criminal charge, laws recognizing non-criminal allegations of stalking suffer the same risk of abuse seen with false allegations of domestic violence.
The U.S. Department of Justice released a special report in January 2009, titled "Stalking Victimization in the United States", NCJ 224527. Among other statistics in the report, survey results listed in Table 3 of the Appendix found that the number of stalking offenders perceived by the estimated 3,398,630 stalking victims were:One 62.1% Two 18.2% Three or more 13.1% Number unknown 6.5%
In other words, one case in eight involved stalking by a group, which is different from the general assumption that stalking is always the work of a single obsessed stalker.
According to the Deptartment of Justice survey, a vast majority of stalking cases are not even taken to criminal court. Prosecutors often find it difficult to prove stalking beyond a reasonable doubt compared to other crimes(one reason perhaps being that stalking is a psychological crime rather than a physical one, though the results of the crime can be much more tramuatizing to victims).
Perhaps one reason for this is that states vary greatly on defining what stalking is and when it becomes a crime. The wording in many state laws of stalking is troublesome. According to some laws, stalking is a vastly large contiuum ranging from behaviors that place one at fear of damage to personal property to placing one at fear of injury to placing one at fear of death. Many states have worked to remodel or clarify existing stalking laws. However, more work may need done in this area. False claims of stalking
In 1999, Pathe, Mullen and Purcell said that popular interest in stalking was promoting false claims. In 2004, Sheridan and Blaauw said that they estimated that 11.5% of claims in a sample of 357 reported claims of stalking were false.
Assault is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand, assault refers to an act that causes another to apprehend immediate and personal violence, while in other jurisdictions, such as the United States, assault may refer only to the threat of violence caused by an immediate show of force.
Assault is often defined to include not only violence, but any physical contact with another person without their consent. In common law jurisdictions, including England and Wales and the United States, battery is the crime that represents the unlawful physical contact, though this distinction does not exist in all jurisdictions. Exceptions exist to cover unsolicited physical contact which amount to normal social behavior known as de minimis harm.
In most jurisdictions, the intention to cause grievous bodily harm (or its equivalent) may amount to the mental requirement to prefer a charge of murder in circumstances where the harm inflicted upon the victim proves fatal.
At common law criminal assault was an attempted battery. The elements of battery are (1) a volitional act (2) done for the purpose of causing an harmful or offensive contact with another person or under circumstances that make such contact substantially certain to occur and (3) which causes such contact. Thus throwing a rock at someone for the purpose of hitting him is a battery if the rock in fact strikes the person and is an assault if the rock misses. The fact that the person may have been unaware that the rock had been thrown at him is irrelevant under this definition of assault. Some jurisdictions have incorporated the definition of civil assault into the definition of the crime making it a criminal assault to intentionally place another person in "fear" of a harmful or offensive contact. "Fear" means merely apprehension - awareness rather than any emotional state. Therefore, if you see the rock in flight and realize that you are in danger of being hit then the element of "fear" has been met even if the prospect of being hit by a rock does not frighten you.
Rape, also referred to as sexual assault, is an assault by a person involving sexual intercourse with or without sexual penetration of another person without that person's consent.
The rate of reporting, prosecution and convictions for rape varies considerably in different jurisdictions. The U.S. Bureau of Justice Statistics (1999) estimated that 91% of U.S. rape victims are female and 9% are male, with 99% of the offenders being male. In one survey of women, only two percent of respondents who stated they were sexually assaulted said that the assault was perpetrated by a stranger. For men, male-male rape in prisons has been a significant problem. Several studies argue that male-male prisoner rape might be the most common and least-reported form of rape, with some studies suggesting such rapes are substantially more common in both per-capita and raw-number totals than male-female rapes in the general population.
When part of a widespread and systematic practice, rape and sexual slavery are recognized as crimes against humanity and war crimes. Rape is also recognized as an element of the crime of genocide when committed with the intent to destroy, in whole or in part, a targeted ethnic group.
Sexual assault is an assault of a sexual nature on another person. Although sexual assaults most frequently are by a man on a woman, it may be by a man on a man, woman on a man or woman on a woman. Approximately one in six American women will be a victim of a sexual assault in her lifetime. Largely because of child rape and an epidemic of prison rape approximately ten percent of all rapes are suffered by males.
While sexual assaults are associated with the crime of rape, it may cover assaults which would not be considered rape. What constitutes a sexual assault is determined by the laws of the jurisdiction where the assault takes place, which vary considerably, and are influenced by local social and cultural attitudes.
It has been said that sexual assault includes rape, forced vaginal, anal or oral penetration, forced sexual intercourse, inappropriate touching, forced kissing, child molestation, sexting and the torture of the victim in a sexual manner.
Sexual intercourse, also known as copulation or coitus, commonly refers to the act in which the male reproductive organ enters the female reproductive tract. The two entities may be of opposite sexes or not, or they may be hermaphroditic, as is the case with snails. In recent years, penetration of non-sexual organs (oral intercourse, anal intercourse) or by non-sexual organs (fingering, fisting) are also sometimes included in this definition. Traditionally, intercourse has been viewed as the natural endpoint of all sexual contact between a man and a woman.
Non-penetrative sex (oral sex may or may not be penetrative) and mutual masturbation have been referred to as "outercourse" "Outercourse" is something of a misnomer, as it contrasts "outer" with "inter" but the "inter" in "intercourse" means "between two people" or beings. It does not describe being inside or outside of the body. The word sex, in the context of sexual intimacy, is often, if not universally, understood to include any mutual genital stimulation, i.e. both intercourse and outercourse.
Mating is the term most often used to refer to sexual intercourse between animals other than humans; for most, mating occurs at the point of estrus (the most fertile period of time in the female's reproductive cycle), which increases the chances of successful impregnation. However, bonobos, dolphins, and chimpanzees are known to engage in sexual intercourse even when the female is not in estrus, and to engage in sex acts with same-sex partners. In most instances, humans have sex primarily for pleasure. This behavior in the above mentioned animals is also presumed to be for pleasure, which in turn strengthens social bonds.
Abrahamic religions view sexual intercouse between husband and wife as a spiritual and edifying action, while extra-marital sex is viewed as immoral. The teachings of Hinduism and Buddhism on sexuality have differing interpretations. Buddhism's injunction to "refrain from sexual misconduct" is not well defined. Modern Christian philosophy and theology view marital sexual love as the best image of God who is love, as they see the human body as the only one capable of making the invisible — the spiritual and the divine — visible.
Vaginal sexual intercourse, also called coitus, is the human form of copulation. While a purpose and effect is reproduction, it is often performed exclusively for pleasure and/or as an expression of love and emotional intimacy. Sexual intercourse typically plays a powerful bonding role; in many societies it is normal for couples to have frequent intercourse while using birth control, sharing pleasure and strengthening their emotional bond through sex even though they are deliberately avoiding pregnancy.
Sexual intercourse may also be defined as referring to other forms of insertive sexual behavior, such as oral sex and anal intercourse. The phrase to have sex can mean any or all of these behaviors, as well as other non-penetrative sex acts not considered here.
Coitus may be preceded by foreplay, which leads to sexual arousal of the partners, resulting in the erection of the penis and natural lubrication of the vagina. To engage in coitus, the erect penis is inserted into the vagina and one or both of the partners move their hips to move the penis backward and forward inside the vagina to cause friction, typically without fully removing the penis. In this way, they stimulate themselves and each other, often continuing until orgasm in either or both partners is achieved. Penetration by the hardened erect penis is also known as intromission, or by the Latin name immissiopenis (Latin for "insertion of the penis").
Coitus is the basic reproductive method of humans. During ejaculation, which usually accompanies male orgasm, a series of muscular contractions delivers semen containing male gametes known as sperm cells or spermatozoa from the penis into the vagina.
The subsequent route of the sperm from the vault of the vagina is through the cervix and into the uterus, and then into the fallopian tubes. Millions of sperm are present in each ejaculation, to increase the chances of one fertilizing an egg or ovum. When a fertile ovum from the female is present in the fallopian tubes, the male gamete joins with the ovum, resulting in fertilization and the formation of a new embryo. When a fertilized ovum reaches the uterus, it becomes implanted in the lining of the uterus, known as endometrium, and a pregnancy begins.
Unlike most species, human sexual activity is not linked to periods of estrus and can take place at any time during the reproductive cycle, even during pregnancy.Coitus difficulties
Anorgasmia is regular difficulty reaching orgasm after ample sexual stimulation, causing personal distress. This is much more common in women than men. The physical structure of the act of coitus favors penile stimulation over clitoral stimulation. The location of the clitoris then often necessitates manual stimulation in order for the female to achieve orgasm. About 15 percent of women report difficulties with orgasm, and as many as 10 percent of women in the United States have never climaxed. Even women who orgasm regularly only climax about 50 percent to 70 percent of the time.
Some males suffer from erectile dysfunction (ED), or impotence, at least occasionally. For those whose impotence is caused by medical conditions, prescription drugs such as Viagra, Cialis, and Levitra are available. However, doctors caution against the unnecessary use of these drugs because they are accompanied by serious risks such as increased chance of heart attack. Moreover, using a drug to counteract the symptom—impotence—can mask the underlying problem causing the impotence and does not resolve it. A serious medical condition might be aggravated if left untreated.
A more common sexual disorder in males is premature ejaculation (PE). The U.S. Food and Drug Administration is examining the drug dapoxetine to treat premature ejaculation. In clinical trials, those with PE who took dapoxetine experienced intercourse three to four times longer before orgasm than without the drug. Another ejaculation-related disorder is delayed ejaculation, which can be caused as an unwanted side effect of antidepressant medications such as Fluvoxamine.
The American Urological Association (AUA) estimates that premature ejaculation could affect 27 to 34 percent of men in the United States. The AUA also estimates that 10 to 12 percent of men in the United States are affected by erectile dysfunction. Vaginismus is involuntary tensing of the pelvic floor musculature, making coitus distressing, painful, and sometimes impossible. Dyspareunia is a medical term signifying painful or uncomfortable intercourse, but does not specify the cause.
Although disability-related pain and mobility impairment can hamper intercourse, in many cases the most significant impediments to intercourse for individuals with a disability are psychological. In particular, people who have a disability can find intercourse daunting due to issues involving their self-concept as a sexual being, or partner's discomfort or perceived discomfort.
Temporary difficulties can arise with alcohol and sex as alcohol initially increases interest (through disinhibition) but decreases capacity with greater intake.
Health benefits Sex has been claimed to produce health benefits as varied as improved sense of smell, weight loss, stress reduction, increased immunity, and decreased risk of prostate cancer.
Sex between cohabiting partners lowers blood pressure and reduces stress, according to Stuart Brody, professor of psychology at the University of the West of Scotland. Brody's team monitored 24 women and 22 men who were exposed to stressful situations, such as speaking in public and doing verbal arithmetic, and kept records of their sexual activity. The men and women who had penile-vaginal intercourse responded more positively to stress "than those who engaged in other sexual behaviors or abstained" A study by Keith Light of the University of North Carolina went as far as to find a link between "partner hug" and lower blood pressure in women.
Frequent sexual intercourse was held to reduce the risk of the common cold by Carl Charnetski and Francis X. Brennan of Wilkes University in Wilkes-Barre, Pa. These scientists linked frequent sexual intercourse (once or twice a week) to increased production of the antibody called Immunoglobulin A or IgA, which can protect the body from getting colds and other infections. They took samples of saliva, which contain IgA, from 112 college students who reported the frequency of sex they had. The students in the "frequent" group had higher levels of IgA than those in the other three groups, consisting of people who were celibate, had sex less than once a week, or had it "very often" (three or more times weekly). The other three groups had comparable IgA levels. Charnetski and Brennan had previously shown that exposure to elevator music has a similar effect on IgA levels.
"Sex is a great mode of exercise," according to Patti Britton, PhD, past president of the American Association of Sexuality Educators, Counselors and Therapists (AASECT) and currently host of the website "Your Sex Coach". She notes that thirty minutes of sex burns 85 calories or more. She concludes that 42 half-hour sessions, or 21 hour-long sessions, will burn 3,570 calories - sufficient to lose one pound.
"Boosting self-esteem" was one of 237 reasons people have sex, collected by University of Texas researchers and published in the journal Archives of Sexual Behavior. Some subjects who already had high self-esteem said they sometimes have sex to "feel even better".
Sexual intimacy, as well as orgasms, increases levels of the hormone oxytocin, also known as "the love hormone" which helps people bond and build trust. Researchers from the University of Pittsburgh and the University of North Carolina at Chapel Hill evaluated 59 premenopausal women before and after warm contact with their husbands and partners ending with hugs. They found that the more contact, the higher the oxytocin levels. Oxytocin allows people to feel the urge to nurture and to bond. Generosity has also been credited and linked to a higher level of oxytocin. In addition, as the hormone oxytocin surges, endorphins increase, and pain declines. In a study published in the Bulletin of Experimental Biology and Medicine, 48 volunteers who inhaled oxytocin vapor and then had their fingers pricked lowered their pain threshold by more than half. The oxytocin released during orgasm also promotes sleep.
Men who have frequent ejaculations, especially men in their 20s, may reduce their risks of prostate cancer later in life. Australian researchers reported in the British Journal of Urology International that they followed men diagnosed with prostate cancer and those without. They found no association of prostate cancer with the number of sexual partners as the men reached their 30s, 40s, and 50s, but men who had five or more ejaculations weekly while in their 20s reduced their risk of getting prostate cancer later by a third. Another study, reported in the Journal of the American Medical Association, "found that frequent ejaculations, 21 or more a month, were linked to lower prostate cancer risk in older men, as well, compared with less frequent ejaculations of four to seven monthly".
During sex, pelvic floor muscle exercises known as Kegels offer benefits for women. More sexual pleasure is expected to result, strengthening of the area, and help to minimize the risk of incontinence later in life. Social and other behaviors
Humans, bonobos, chimpanzees and dolphins are species known to engage in heterosexual behaviors even when the female is not in estrus, which is a point in her reproductive cycle suitable for successful impregnation. These species, and others, are also known to engage in homosexual behaviors.
In both humans and bonobos, the female undergoes relatively concealed ovulation so that both male and female partners commonly do not know whether she is fertile at any given moment. One possible reason for this distinct biological feature may be formation of strong emotional bonds between sexual partners important for social interactions and, in the case of humans, long-term partnership rather than immediate sexual reproduction.
Humans, bonobos and dolphins are all intelligent social animals, whose cooperative behavior proves far more successful than that of any individual alone. In these animals, the use of sex has evolved beyond reproduction apparently to serve additional social functions. Sex reinforces intimate social bonds between individuals to form larger social structures. The resulting cooperation encourages collective tasks that promote the survival of each member of the group.
Unlike some other sexual activities, vaginal intercourse has rarely been made taboo on religious grounds or by government authorities, as procreation is inherently essential to the continuation to the species or of any particular genetic line, which is considered to be a positive factor, and indeed, enables most societies to continue in the first place. Many of the cultures that had prohibited sexual intercourse entirely no longer exist; an exception is the Shakers, a group that reached a size of about 6,000 full members in 1840, but as of 2006 had only four members left There are, however, many communities within cultures that prohibit their members to engage in any form of sex, especially members of religious orders and the priesthood in the Roman Catholic Church and Mahayana Buddhist monks. Within some ideologies, coitus has been considered the only "acceptable" sexual activity. Relatively strict designations of "appropriate" and "inappropriate" sexual intercourse have been in human culture for hundreds of years. These legal or cultural restrictions may include:Sex among partners who are not married (this is sometimes referred to as fornication) Sex between a married person and someone to whom they are not married (called adultery or extramarital sex). Sex between partners of the same sex (also called homosexuality). Commercial sex (also called prostitution). Sex between a living human and a human corpse (also called necrophilia). Sex between close relatives (also called incest). Adults having sex with children (depending on the country and its laws, also called child sexual abuse) Humans having sex with non-human animals (also called bestiality). Sex between members of different tribes, ethnic groups, or races, as in South Africa or the United States during periods of racial segregation (also called miscegenation). Sexual intercourse during a woman's menstrual period, as seen in Judaism.
Often a community adapts its legal definitions during case laws for settling disputes. For example, in 2003 the New Hampshire Supreme Court ruled that same-sex relations do not constitute sexual intercourse, based on a 1961 definition from Webster's Third New International Dictionary, in Blanchflower v. Blanchflower, and thereby an accused spouse in a divorce case was found not guilty of adultery based on this technicality.
Most countries have age of consent laws specifying the minimum legal age for engaging in sexual intercourse. Sexual intercourse with a person against their will, or without their informed legal consent, is referred to as rape, and is considered a serious crime in many cultures around the world, including those found in Europe, northern and eastern Asia, and the Americas. Sex, regardless of consent, with a person under the age of consent is often considered to be sexual assault or statutory rape. The age of consent varies from country to country and often by state or region; commonly, the age of consent is set anywhere between twelve and eighteen years of age, with sixteen years being the most common age the law sets. Sometimes, the age of consent is lowered for people near the same age wishing to participate in intercourse. For example, in Canada, the minimum age of consent for all couples is 16. However, the age of consent can go below 16 on the condition that the couple still are not 2 years of age apart. Religions may also set differing ages for consent, with Islam setting the age at puberty, which can vary from around 10 to 14. There are exceptions in the case of anal sex or people in a position of trust/authority.
Modern humans, who date from approximately 400,000 years ago, have always reproduced by sexual intercourse. Modern religions and philosophies, on the other hand, are all less than 10,000 years old, and it is impossible to determine if there were earlier religious of philosophical views on sexual intercourse. Some religious traditions, such as fundamentalist Christianity, hold that the first humans came into being by an act of God and not through human sexual intercourse. That is, after each pair of animals or humans were created, they began reproducing through sexual intercourse. Others, such as Mormonism, hold that there is a Heavently Father and Mother whose actions resulted in earthly children.
Religious and philosophical viewpoints on sexual intercourse are varied. Some hold that person should engage in whatever sexual act they desire so long as it does not involve children, animals, or those who cannot or will not willingly consent to participate. Others hold that sexual intercourse is acceptable with an unwilling spouse (also known as "marital rights").
Abrahamic religions support committed heterosexual relationships within marriage, though the particulars are varied and have changed over time.
Ancient Judaism and early Christianity, allowed sexual relations between one male and more than one female (polygamy), and Islam still does. The Bible required that a brother have sexual intercourse with his brother's widowed, childless spouse so as to provide her children and forbade coitus interruptus in such cases. Modern Judaism views sex and reproduction as the holiest of human acts, the act through which one can imitate God, the Creator.
Islam views sex within marriage as something pleasurable, even a spiritual activity and a duty. Some Moslems hold that male martyrs for the Islamic faith will receive multiple virgin females as a reward in the afterlife.
Christianity views sex in marriage as holy. It affirms that everything God created, including sex, is good. As there is no single central source of truth and doctrine in the largest Abrahamic traditions, there is wide variation of opinion and teaching about sexual intercourse within each, with some religious communities limiting sexual activity strictly to intercourse and others making practically no pronouncements on sex at all.
Hinduism has varied views about sexuality, but Hindu society, in general, perceives both pre-marital and extramarital sex to be immoral and shameful, notwithstanding popular culture. The Karma Sutra is a well-known product of Hindu society that extols the benefits of sexual intercourse.
Buddhist ethics, in its most common formulation, holds that one should neither be attached to nor crave sensual pleasure. Some Asian societies shaped by Buddhist traditions take a strong ethical stand on sexual behavior. In the Bahá'í faith, sexual relationships are permitted only between a husband and wife.
Unitarian Universalists, with an emphasis on strong interpersonal ethics, do not place boundaries on the occurrence of sexual intercourse among consenting adults other than the vows that individuals may have taken voluntarily.
Neopagan religions tend to be positive about sexuality among consenting adults.
Catholicism In his Theology of the Body, John Paul II, who first worked on his ideas as a Polish philosopher in Love and Responsibility, taught that marital sexual intercourse is the best image of God who is love, for he sees the human body as the only one capable of making the invisible — the spiritual and the divine — visible. He said that human beings were created by God who is love for a purpose: to be loving persons who freely choose to love, to give themselves as persons who express their self-giving through their bodies. Thus, sexual intercourse between husband and wife is a symbol of their total mutual self-donation, and further fosters, strengthens and enriches it not just for the present but also for the future. For John Paul II, "The body, and it alone, is capable of making visible what is invisible: the spiritual and divine." He says there is no other more perfect image of the unity and communion of God in mutual love than the sexual act of a married couple, whereby they give themselves in a total way — exclusively to one another, and up to end of their lives, and in a fruitfully generous way by participating in the creation of new human beings. Through this perspective, he understands the immorality of extra marital sex. It falsifies the language of the human body, a language of total love worthy of persons by using the body for selfish ends, thus treating embodied persons as things and objects, rather than dealing with human bodies with the reverence and love that persons, incarnate spirits and images of God deserve. John Paul II stresses that there is great beauty in sexual love when done in harmony with the human values of freely chosen total commitment and self-giving. For him, this sexual love is a form of worship, an experience of the sacred.
Catholicism forbids its members from engaging in forms of sexual expression such as masturbation and oral sex, and the use of contraception is forbidden. Though the official Catholic teaching on sexual intercourse is consistent with the statements of John Paul II, thousands of cases of sexual abuse of minors by Catholic priests were brought to light during his papacy.
Objectivism, the philosophy espoused by Ayn Rand, like other similar movements including libertarianism holds that people should pursue the lifestyle that makes them happiest so long as others are not hurt.
Marriage is a social union or legal contract between individuals that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged by a variety of ways, depending on the culture or demographic. Such a union may also be called matrimony, while the ceremony that marks its beginning is usually called a wedding and the marital structure created is known as wedlock.
People marry for many reasons, most often including one or more of the following: legal, social, emotional, economical, spiritual, and religious. These might include arranged marriages, family obligations, the legal establishment of a nuclear family unit, the legal protection of children and public declaration of love.
Marriage practices are very diverse across cultures, may take many forms, and are often formalized by a ceremony called a wedding. The act of marriage usually creates normative or legal obligations between the individuals involved. In some societies these obligations also extend to certain family members of the married persons. Almost all cultures that recognize marriage also recognize adultery as a violation of the terms of marriage.
External recognition can manifest in a variety of ways. Some examples include the state, a religious authority, or both. It is often viewed as a contract. Civil marriage is the legal concept of marriage as a governmental institution irrespective of religious affiliation, in accordance with marriage laws of the jurisdiction. If recognized by the state, by the religion(s) to which the parties belong or by society in general, the act of marriage changes the personal and social status of the individuals who enter into it.
Deference denotes the extent to which a court respects the authority or validity of a government act or decision during the process of judicial review. If the court exhibits less deference, this may contribute to a finding that the government acted ultra vires, or beyond its power.
Influencing factors include:The nature of the decision (poly-centric, human rights and/or individual liberties usually attract less deference or more scrutiny). Decisions which impact on individuals attract more scrutiny If the decision makers have a higher level of skill or expertise in the area in question, the court will pay greater deference to their decision. If the decision involves a factual, as opposed to legal inquiry, a court will pay higher deference to the decision. If there are other controls on the decision makers, there will also be less judicial scrutiny (e.g. ombudsmen, auditors). Also if the decision making body is democratically elected there is less scrutiny due, because decision makers are 'controlled' by their electors.
Violence is the expression of physical or verbal force against self or other, compelling action against one's will on pain of being hurt. Variant uses of the term refer to the destruction of non-living objects (see property damage). Worldwide, violence is used as a tool of manipulation and also is an area of concern for law and culture which take attempts to suppress and stop it. The word violence covers a broad spectrum. It can vary from between a physical altercation between two beings where a slight injury may be the outcome to war and genocide where millions may die as a result. Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by private persons or corporations not directly involved with the government. An illegal act by an officeholder constitutes political corruption only if the act is directly related to their official duties.
All forms of government are susceptible to political corruption. Forms of corruption vary, but include bribery, extortion, cronyism, nepotism, patronage, graft, and embezzlement. While corruption may facilitate criminal enterprise such as drug trafficking, money laundering, and trafficking, it is not restricted to these organized crime activities. In some nations, corruption is so common that it has gained normative status. The end point of political corruption is a kleptocracy, literally "rule by thieves".
The activities that constitute illegal corruption differ depending on the country or jurisdiction. Certain political funding practices that are legal in one place may be illegal in another. In some countries, government officials have broad or poorly defined powers, and the line between what is legal and illegal can be difficult to draw.
Bribery around the world is estimated at about $1 trillion (£494bn), and the burden of corruption falls disproportionately on the bottom billion people living in extreme poverty
Police corruption is a specific form of police misconduct designed to obtain financial benefits and/or career advancement for a police officer or officers in exchange for not pursuing, or selectively pursuing, an investigation or arrest.
One common form of police corruption is soliciting and/or accepting [bribes] in exchange for not reporting organized drug or prostitution rings or other illegal activities. Another example is police officers flouting the police code of conduct in order to secure convictions of suspects — for example, through the use of falsified evidence. More rarely, police officers may deliberately and systematically participate in organized crime themselves.
In most major cities there are internal affairs sections to investigate suspected police corruption or misconduct. Similar entities include the British Independent Police Complaints Commission.
Contempt of cop" is law enforcement jargon in the United States for behavior by citizens towards law enforcement officers that the officers perceive as disrespectful or insufficiently deferential to their authority. The phrase is associated with arbitrary arrest and detentions and is often discussed in connection to police misconduct such as use of excessive force or even police brutality as a reaction to disrespectful behavior rather than for any legitimate law enforcement purpose.
Arrests for "contempt of cop" may stem from a type of "occupational arrogance" when a police officer thinks he or she should not be challenged or questioned. From such officers' perspective, "contempt of cop" may involve perceived or actual challenges to their authority, including a lack of deference (such as by asserting one's constitutional rights, disobeying instructions, or expressing interest in filing a complaint against the officer. Flight from the police is sometimes considered a variant of "contempt of cop". "Contempt of cop" situations may be exacerbated if other officers witness the allegedly contemptuous behavior.
Charges such as disorderly conduct, resisting arrest, and assaulting an officer may be cited as official reasons for a "contempt of cop" arrest. Obstructing an officer or failure to obey a lawful order is also cited in "contempt of cop" arrests in some jurisdictions, particularly as a stand-alone charge without any other charges brought.
Arbitrarily arresting and/or detaining persons contradicts rule of law established in democracies as well as habeas corpus and is thereafter illegal in those regimes. In practice in the first decade of the twenty-first century, arbitrary arrest and /or detention (the definitions of these terms vary between different national jurisdictions) is typically tolerated by the legal system for a short duration,of a few hours up to a few days, in most democracies, especially in response to political street demonstrations. It is often a characteristic of dictatorships or police states, which may also engage in forced disappearance.
Virtually all individuals who are arbitrarily arrested are given absolutely no explanation as to why they are being arrested, and they are not shown any arrest warrant. Depending on the social context, many or the vast majority of arbitrarily arrested individuals may be held incommunicado and their whereabouts can be concealed from their family, associates, the public population and open trial courts. Many individuals who are arbitrarily arrested and detained suffer physical and/or psychological torture during interrogation, as well as extrajudicial punishment and other abuses in the hands of those detaining them.
Habeas corpus (pronounced /ˌheɪbiːəs ˈkɔrpəs/) (Latin: You (shall) have the body) is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system. Of English origin, the writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
A writ of habeas corpus ad subjiciendum, also known as "The Great Writ", is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody. The prisoner, or another person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. The British jurist Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus." The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v. United States were heard by the Supreme Court of the United States on December 5, 2007. On June 12, 2008, the U.S. Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition.
The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.
The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
While the prohibition of abridgment of the right to petition originally referred only to the federal legislature (the Congress) and courts, the incorporation doctrine later expanded the protection of the right to its current scope, over all state and federal courts and legislatures and the executive branches of the state and federal governments. The right to petition includes, under its umbrella, the petition. For example, in January 2007, the U.S. Senate considered S. 1, an omnibus "ethics reform" bill. This bill contained a provision (Section 220) to establish federal regulation, for the first time, of certain efforts to encourage "grassroots lobbying." The bill said that "'grassroots lobbying' means the voluntary efforts of members of the general public to communicate their own views on an issue to Federal officials or to encourage other members of the general public to do the same." This provision was opposed by a broad array of organizations, including the American Civil Liberties Union, the National Right to Life Committee, and the National Rifle Association. On January 18, 2007, the U.S. Senate voted 55-43 to strike Section 220 from the bill. However, other proposed regulations on "grassroots lobbying" remain under consideration in the 110th Congress.
There are ongoing conflicts between organizations that wish to impose greater restrictions on citizens' attempts to influence of "lobby" policymakers, and groups that argue that such restrictions infringe on the constitutionally protected right to sue the government, and the right of individuals, groups, and corporations (via corporate person-hood), to lobby the government.
Another controversial bill, the "Executive Branch Reform Act, H.R. 984, would require over 8,000 Executive Branch officials to report into a public database nearly any "significant contact" from any "private party," a term that the bill defines to include almost all persons other than government officials. The bill defines "significant contact" to be any "oral or written communication (including electronic communication) . . . in which the private party seeks to influence official action by any officer or employee of the executive branch of the United States." This covers all forms of communication, one way or two ways, including letters, faxes, e-mails, phone messages, and petitions. The bill is supported by some organizations as an expansion of "government in the sunshine," but other groups oppose it as an infringing on the right to petition by making it impossible for citizens to communicate their views on controversial issues to government officials without those communications becoming a matter of public record.
Justice... concerns the proper ordering of things and persons within a society. As a concept it has been subject to philosophical, legal, and theological reflection and debate throughout our history. A number of important questions surrounding justice have been fiercely debated over the course of western history: What is justice? What does it demand of individuals and societies? What is the proper distribution of wealth and resources in society: equal, meritocratic, according to status, or some other arrangement? There are myriad possible answers to these questions from divergent perspectives on the political and philosophical spectrum.
According to most theories of justice, it is overwhelmingly important: John Rawls, for instance, claims that "Justice is the first virtue of social institutions, as truth is of systems of thought." Justice can be thought of as distinct from and more fundamental than benevolence, charity, mercy, generosity or compassion. Justice has traditionally been associated with concepts of fate, reincarnation or Divine Providence, i.e. with a life in accordance with the cosmic plan. The association of justice with fairness has thus been historically and culturally rare and is perhaps chiefly a modern innovation.
Studies at UCLA in 2008 have indicated that reactions to fairness are "wired" into the brain and that, "Fairness is activating the same part of the brain that responds to food in rats... This is consistent with the notion that being treated fairly satisfies a basic need". Research conducted in 2003 at Emory University, Georgia, involving Capuchin Monkeys demonstrated that other cooperative animals also possess such a sense and that "inequality aversion may not be uniquely human." indicating that ideas of fairness and justice may be instinctual in nature.
Detention generally refers to a state or government holding a person in a particular area (generally called a detention centre), either for interrogation, as punishment for a crime (see prison), or as a precautionary measure while that person is suspected of posing a potential threat.
The term can also be used in reference to the holding of property, for the same reasons. The process of detainment may or may not have been preceded with arrest. The prisoners in Guantánamo Bay are for example referred to as "detainees".
Any form of imprisonment can be called detention, although the term is associated with persons who are being held without warrant or charge.
Civil law is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not determined, as in common law, by judges. The principle of civil law is to provide all citizens with an accessible and written collection of the laws which apply to them and which judges must follow. It is the most prevalent and oldest surviving legal system in the world. The primary source of law is the law code, which is a statute grouping rules and standards concerning a particular subject matter and arranged in classified order; a code may also be described as "a systematic collection of interrelated articles written in a terse, staccato style." Law codes are usually created by a legislature's enactment of a new statute that embodies all the old statutes relating to the subject and including changes necessitated by court decisions. In some cases, the change results in a new statutory concept. The two other major legal systems in the world are common law and Islamic law.
A prominent example of civil law would be the Code Napoleon (1804), named after French emperor Napoleon Bonaparte. The Code comprises three components: "Persons," "Things and Different Forms of Ownership," and "Different Ways of Acquiring the Ownership of Things." Rather than a catalog of judicial decisions, the Code consists of abstractly written principles as rules of law.
Civil law is sometimes inappropriately referred to as Roman law or otherwise called Romano-Germanic law or continental civil law, especially by people under its jurisdiction. The expression civil law is a translation of Latin Jus Civile, or "citizens' law", which was the Late Imperial term for its legal system, as opposed to the legal systems of conquered or adversarial peoples.
The civil law system is based on Roman law, especially the Corpus Juris Civilis of Emperor Justinian, as later developed by the Middle Ages.
The acceptance of Roman law had different characteristics in different countries. In some of them its effect resulted from legislative act, i.e. it became positive law, whereas in other ones it became accepted by way of its processing by legal theorists.
Consequently, neither of the two waves of Romanism completely dominated in Europe. Roman law was a secondary source that was applied only as long as local customs and local laws lacked a pertinent provision on a particular matter. However, local rules too were interpreted primarily according to Roman law (it being a common European legal tradition of sorts), resulting in its influencing the main source of law also.
A second characteristic, beyond Roman law foundations, is the extended codification of the adopted Roman law, i.e. its inclusion into civil codes. The concept of codification dates back to the Code of Hammurabi in ancient Babylon.
The concept of codification was further developed during the 17th and 18th century, as an expression of both Natural Law and the ideas of the Enlightenment. The political ideal of that era was expressed by the concepts of democracy, protection of property and the rule of law. That ideal required the creation of certainty of law, through the recording of law and through its uniformity. So, the aforementioned mix of Roman law and customary and local law ceased to exist, and the road opened for law codification, which could contribute to the aims of the above mentioned political ideal.
Another reason that contributed to codification was that the notion of the nation state, which was born during the 19th centuryCitation needed(possibly incorrect), required the recording of the law that would be applicable to that state.
Certainly, there was also reaction to the aim of law codification. The proponents of codification regarded it as conducive to certainty, unity and systematic recording of the law; whereas its opponents claimed that codification would result in the ossification of the law.
At the end, despite whatever resistance to codification, the codification of European private laws moved forward. The French Napoleonic Code (code civil) of 1804, the German civil code (Bürgerliches Gesetzbuch) of 1900 and the Swiss codes were the most influential national civil codes.
Because Germany was a rising power in the late 19th century and its legal system was well organized, when many Asian nations were developing, the German Civil Code became the basis for the legal systems of Japan and South Korea. In China, the German Civil Code was introduced in the later years of the Qing Dynasty and formed the basis of the law of the Republic of China, which remains in force in Taiwan.
Some authors consider civil law to have served as the foundation for socialist law used in Communist countries, which in this view would basically be civil law with the addition of Marxist–Leninist ideas.
Several legal institutions in civil law were also adapted from similar institutions in Islamic law and jurisprudence during the Middle Ages. For example, the Islamic Hawala institution is the basis of the Avallo in Italian civil law and the Aval in French civil law
The Thirteen Colonies were part of what became known as British America, a name that was used by Great Britain until the Treaty of Paris recognized the independence of the original thirteen United States of America in 1783. These British colonies in North America rebelled against British rule in 1775, in what is called the American Revolution in the United States and the American War of Independence in other countries. A provisional government was formed which proclaimed their independence, which is now celebrated as having occurred on July 4, 1776, and subsequently became the original thirteen United States of America. The colonies were founded between 1607 (Virginia), and 1733 (Georgia), although Great Britain held several other colonies in North America and the West Indies which did not join the rebellion in 1775.
The Thirteen Colonies gave rise to eighteen present-day states: the original thirteen states (in chronological order of their ratification of the United States Constitution: Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, New York, North Carolina, Rhode Island), Vermont (which had been disputed between New Hampshire and New York and which was an independent republic from 1777 to 1791), Kentucky (formerly part of Virginia until 1792), Tennessee (formerly part of North Carolina until 1796), Maine (formerly part of Massachusetts until 1820), and West Virginia (also formerly part of Virginia until 1863).
Much of the additional North American territory outside the Thirteen Colonies was gained by Britain during the Seven Years War. However the Proclamation Line of 1763 barred American settlement Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the king's subjects through the courts.
The prerogative writs are:certiorarihabeas corpusmandamusprohibitionprocedendoquo warrantoscire facias (C.J. Antieau, The Practice of Extraordinary Remedies: Habeas Corpus and the Other Common Law Writs, Vol. II, at 802 ("Once known as a prerogative writ, scire facias is now better described as one of the extraordinary writs") (1987
In the United States federal court system, the issuance of writs is authorised by U.S. Code, Title 28, Section 1651. The language of the statute was left deliberately vague in order to allow the courts flexibility in determining what writs are necessary "in aid of their jurisdiction". Use of writs at the trial court level has been greatly curtailed by the adoption of the Federal Rules of Civil Procedure and its state court counterparts, which specify that there is "one form of action".
Nevertheless, the prudent litigator should familiarize himself or herself with the availability of writs in the jurisdiction in which he or she is admitted to practice.
Quo warranto and procedendo are largely obsolete.
Habeas corpus still exists, of course, but its availability has been narrowed over the years at both federal and state levels.
The Supreme Court of the United States grants certiorari, while most state supreme courts grant review.
Mandamus has been replaced in the United States district courts and many state trial courts by injunction. In the federal system, it is generally available only to the federal courts of appeals, which issue writs of mandamus to lower courts and administrative hearing panels, while some state systems still allow trial courts to issue writs of mandamus or mandate directly to government officials.
Prohibition is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction.
Human rights refer to the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which have come to be commonly thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and economic, social and cultural rights, including the right to participate in culture, the right to food, the right to work, and the right to education. “ All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. ” —Article 1 of the United Nations Universal Declaration of Human Rights (UDHR)
Main article: History of human rights
Although other civilizations – notably those of India, China and the Islamic world – were at least equal to Europe at various stages in history, and in many respects in advance of it, they did not manage to propagate a universal ethics of rights. There were, nonetheless, notable examples of pre-Enlightenment non-European rulers enacting charters of tolerance. The "Great Moghul," Akbar the Great of India, granted religious minorities legal status in his realm and condemned traditional Indian practices such as the burning of widows (suttee) and slavery. However, it is unclear how much such liberties can be described as "human rights" in the modern sense. Some historians argue that in non-Western cultures – and indeed in the West before the late Middle Ages – there was no concept of human rights, although important ethical concepts were nonetheless present. The concept of rights certainly existed in pre-modern cultures; ancient philosophers such as Aristotle wrote extensively on the rights (to dikaion in ancient Greek, roughly a "just claim") of citizens to property and participation in public affairs. However, neither the Greeks nor the Romans had any concept of universal human rights; slavery, for instance, was justified both in classical and medieval times as a natural condition. Medieval charters of liberty such as the English Magna Carta were not charters of human rights, let alone general charters of rights. They instead constituted a form of limited political and legal agreement to address specific political circumstances, in the case of Magna Carta later being mythologised in the course of early modern debates about rights.
Much of modern human rights law and the basis of most modern interpretations of human rights can be traced back to relatively recent European history. The Twelve Articles of the Black Forest (1525) are considered to be the first record of human rights in Europe. They were part of the peasants' demands raised towards the Swabian League in the Peasants' War in Germany. The British Bill of Rights (or “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) of 1689 made illegal a range of oppressive governmental actions in the United Kingdom. Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded a number of fundamental rights and freedoms into law.
Declaration of the Rights of Man and of the Citizen approved by the National Assembly of France, August 26, 1789. “ We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. ” —United States Declaration of Independence, 1776
These were followed by developments in philosophy of human rights by philosophers such as Thomas Paine, John Stuart Mill and G. W. F. Hegel during the 18th and 19th centuries. The term human rights probably came into use sometime between Paine's The Rights of Man and William Lloyd Garrison's 1831 writings in The Liberator saying he was trying to enlist his readers in "the great cause of human rights"
Many groups and movements have managed to achieve profound social changes over the course of the 20th century in the name of human rights. In Western Europe and North America, labour unions brought about laws granting workers the right to strike, establishing minimum work conditions and forbidding or regulating child labour. The women's rights movement succeeded in gaining for many women the right to vote. National liberation movements in many countries succeeded in driving out colonial powers. One of the most influential was Mahatma Gandhi's movement to free his native India from British rule. Movements by long-oppressed racial and religious minorities succeeded in many parts of the world, among them the civil rights movement, and more recent diverse identity politics movements, on behalf of women and minorities in the United States.
The establishment of the International Committee of the Red Cross, the 1864 Lieber Code and the first of the Geneva Conventions in 1864 laid the foundations of International humanitarian law, to be further developed following the two World Wars.
The World Wars, and the huge losses of life and gross abuses of human rights that took place during them were a driving force behind the development of modern human rights instruments. The League of Nations was established in 1919 at the negotiations over the Treaty of Versailles following the end of World War I. The League's goals included disarmament, preventing war through collective security, settling disputes between countries through negotiation, diplomacy and improving global welfare. Enshrined in its Charter was a mandate to promote many of the rights which were later included in the Universal Declaration of Human Rights.
At the 1945 Yalta Conference, the Allied Powers agreed to create a new body to supplant the League's role. This body was to be the United Nations. The United Nations has played an important role in international human rights law since its creation. Following the World Wars the United Nations and its members developed much of the discourse and the bodies of law which now make up international humanitarian law and international human rights law.
The Universal Declaration of Human Rights (UDHR) is a non-binding declaration adopted by the United Nations General Assembly in 1948, partly in response to the atrocities of World War II. Although the UDHR is a non-binding resolution, it is now considered to be a central component of international customary law which may be invoked under appropriate circumstances by national and other judiciaries. The UDHR urges member nations to promote a number of human, civil, economic and social rights, asserting these rights are part of the "foundation of freedom, justice and peace in the world." The declaration was the first international legal effort to limit the behaviour of states and press upon them duties to their citizens following the model of the rights-duty duality. “ ...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world ” —Preamble to the Universal Declaration of Human Rights, 1948
The UDHR was framed by members of the Human Rights Commission, with former First Lady Eleanor Roosevelt as Chair, who began to discuss an International Bill of Rights in 1947. The members of the Commission did not immediately agree on the form of such a bill of rights, and whether, or how, it should be enforced. The Commission proceeded to frame the UDHR and accompanying treaties, but the UDHR quickly became the priority. Canadian law professor John Humprey and French lawyer René Cassin were responsible for much of the cross-national research and the structure of the document respectively, where the articles of the declaration were interpretative of the general principle of the preamble. The document was structured by Cassin to include the basic principles of dignity, liberty, equality and brotherhood in the first two articles, followed successively by rights pertaining to individuals; rights of individuals in relation to each other and to groups; spiritual, public and political rights; and economic, social and cultural rights. The final three articles place, according to Cassin, rights in the context of limits, duties and the social and political order in which they are to be realized. Humphrey and Cassin intended the rights in the UDHR to be legally enforceable through some means, as is reflected in the third clause of the preamble: “ Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. ” —Preamble to the Universal Declaration of Human Rights, 1948
Some of the UDHR was researched and written by a committee of international experts on human rights, including representatives from all continents and all major religions, and drawing on consultation with leaders such as Mahatma Gandhi. The inclusion of both civil and political rights and economic, social and cultural rights was predicated on the assumption that basic human rights are indivisible and that the different types of rights listed are inextricably linked. This principle was not then opposed by any member states (the declaration was adopted unanimously, with the abstention of the Eastern Bloc, Apartheid South Africa and Saudi Arabia), however this principle was later subject to significant challenges.
The Universal Declaration was bifurcated into two distinct and different covenants, a Covenants on Civil and Political Rights and another Covenant on Economic, Social and Cultural Rights. Over the objection of the more developed states [Capitalist], which questioned the relevance and propriety of such provisions in covenants on human rights, both begin with the right of people to self-determination and to sovereignty over their natural resources. Then the two covenants go different ways.
The drafters of the Covenants initially intended only one instrument. The original drafts included only political and civil rights, but economic and social rights were added early. Western States then fought for, and obtained, a division into two covenants. They insisted that economic and social right were essentially aspirations or plans, not rights, since their realization depended on availability of resources and on controversial economic theory and ideology. These, they said, were not appropriate subjects for binding obligations and should not be allowed to dilute the legal character of provisions honoring political-civil rights; states prepared to assume obligations to respect political-civil rights should not be mitments[ambiguous]. There was wide agreement and clear recognition that the means required to enforce or induce compliance with socio-economic undertakings were different from the means required for civil-political rights.
Because of the divisions over which rights to include, and because some states declined to ratify any treaties including certain specific interpretations of human rights, and despite the Soviet bloc and a number of developing countries arguing strongly for the inclusion of all rights in a so-called Unity Resolution, the rights enshrined in the UDHR were split into two separate covenants, allowing states to adopt some rights and derogate others. Though this allowed the covenants to be created, one commentator has written that it denied the proposed principle that all rights are linked which was central to some interpretations of the UDHR.
Articles of the Universal Declaration of Human Rights
LawMain article: International human rights law
Main article: International human rights instruments
Human rights law is a system of laws, both domestic and international, designed to promote human rights.Treaties
Main article: Human rights law
In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted by the United Nations, between them making the rights contained in the UDHR binding on all states that have signed this treaty, creating human rights law.
Since then numerous other treaties (pieces of legislation) have been offered at the international level. They are generally known as human rights instruments. Some of the most significant are:Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted 1966, entry into force: 1969) Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entry into force: 1981) United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1984) Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1989)  International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (adopted 1990, entry into force: 2003) Enforcement of law
Main article: Human rights law
The enforcement of international human rights law is the responsibility of the Nation State, and its the primary responsibility of the State to make human rights a reality. There is currently no international court that upholds human rights law (the International Criminal Court deals with crimes against humanity, war crimes and genocide), although the Council of Europe is responsible for both the European Convention on Human Rights, and the European Court of Human Rights that acts as a court of last appeal for human rights issues in member states (see the section Europe below).
In practice, many human rights are very difficult to legally enforce due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them. Universal Jurisdiction
Main article: Human rights law
Universal jurisdiction is a controversial principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.
When a case is being dismissed you must be very careful and pay particular attention to what the judge says. He/She will either dismiss the case “with prejudice” or “without prejudice”.
There is a whole world of difference between the two. If the case is dismissed “with prejudice”, the “plaintiff”, being the state, is barred from opening the case again based on the same action.
If the judge dismisses the case “without prejudice” the “plaintiff”, the state, can bring a new suit on the same action.
If the judge dismisses the case “without Prejudice” you must address the court and find out why this is the case because you can’t bring it up at a later date, it must be addressed at the time of the dismissal.
In most cases, the parties involved are so relived to hear the words dismissed they fail to hear how it was dismissed and before long they are back in court again on the same charges, only this time cps is ready for you with some trumped up charges to go with the first ones and it’s all over for you. End of story. Listen to how your case is being dismissed. Write these definitions down and put them in your pocket if you have to. It doesn’t matter as long as you have them.
As a citizen, you have long enjoyed the privileges and protection of your government. Now you are called into service for that same government. You have been summoned and qualified as a trial juror for the courts of West Virginia.
Jury service is the fulfillment of a civic obligation and a valuable privilege. There is no more vital work a citizen can perform in the exercise of self-government than honest and conscientious jury service. Service as a juror is as important as that of the judge, and a trial juror should take great personal satisfaction in the fact that an important duty has been accomplished. Indeed, the effectiveness of our system of justice is measured by the integrity and dedication of the jurors who serve in our courts.
This handbook is designed to help you understand trial procedures and terms you may hear in the courtroom. In each case for which you are selected as a juror, the trial judge will give you instructions as to your schedule, courtroom procedures, and the law as it relates to the case before you.You should disregard anything in this handbook which is in conflict with the judge's instructions.
It is necessary that there be courts so that the disputes which arise between people can be settled justly and peaceably. It is necessary that persons charged with crime be fairly tried, that public safety and welfare be protected on the one hand, and that private rights and liberties be safeguarded on the other. It is the business of every citizen to see that this is done, and it is a duty which the people must do for themselves if life, liberty and property are to be kept secure.
Suppose Ms. Jones sues Mr. Smith. They may be strangers to you, and you may not care who wins. But as a citizen, it is very important to you and all the people that there be a way by which disputes between people can be settled without conflict and in a rational and just manner.
John Doe may be accused of a crime. He may also be a stranger to you, and you may never have heard of the offense with which he is charged. Still, it is important to you as a citizen that the laws be enforced to punish wrongdoers and discourage crime so that you may be safe and secure in your person, your property and your rights. It is equally important that no innocent person be falsely convicted and sent to prison, for if that could happen to someone else, it could also happen to you.
Role Of The Judge and Jury
The oaths taken by a judge and juror require each of them to accept and apply the law as it is. That is a sworn duty. No person is allowed to disregard the law because he or she thinks the law should be different than it is. Laws are made, repealed or changed by those who are elected to make laws, not judges and jurors.
During the trial the judge decides all questions and disputes about the law and the rules for presenting evidence. At the end of the trial, the judge instructs the jury on the law and the main questions it is to decide. The case is then turned over to the jury, and the power and responsibility move from the judge's bench to the jury room. The jury must decide what the facts are and what testimony to believe.
The first step in a civil or criminal jury trial is the selection from the jury panel of the number of jurors required to try the case. In circuit court, civil case juries are composed of six persons and criminal case juries are composed of twelve persons. In magistrate court, all juries are composed of six persons. In most cases, the judge will impanel one or more extra or alternate jurors in case a juror should become ill or have to be excused because of an emergency during the course of the trial.
After the judge briefly explains the general nature of the case to be tried and introduces the lawyers and parties, the panel of prospective jurors is questioned in a process called voir dire -- French for "to speak the truth" -- to determine if any juror has a personal interest in the case or a prejudice or bias that may wrongly influence his or her role as a juror. The attorneys may ask the court to excuse some jurors from the trial. These requests for excuses are called "challenges." There are an unlimited number of challenges for cause, where a specific legal reason is given, and a limited number of peremptory challenges, where no reason is given. The system of challenges is designed to allow lawyers to do their best to assure that their clients will have a fair trial.
For instance, anyone who is related to any of the parties, has unfinished business with one of the lawyers, or knows so much about the case that he or she already has an opinion, may be challenged for cause and excused. On the other hand, a lawyer may learn that a prospective juror has had some experience, such as a similar lawsuit, or a social or business connection with one party, which, although not a legal ground for challenge for cause, may still be a good reason for excusing the juror. This would be a peremptory challenge. A juror should not take offense if excused from serving on a particular jury. The lawyer is not suggesting the juror lacks ability, honesty, or judgment, but is only using a legal right. When all challenges are used, the remaining jurors are sworn to try the case upon the merits.
When the jury is selected and sworn, the lawyers on each side of the case may make brief statements to the jury outlining what they intend to prove on behalf of their clients. Jurors should remember that these statements of the lawyers are not evidence, but only explanations of what each side claims, and these claims must be proved by evidence. These conflicting claims constitute the issues of the case.
Presentation Of Evidence
The next step in the trial is the presentation of the evidence in the form of testimony and exhibits. Testimony consists of statements made by witnesses under oath. Exhibits are physical objects, such as photographs, weapons, or written documents. Usually, the attorney for the plaintiff in a civil case or the prosecutor, if it is a criminal case, proceeds first. The defense will offer its evidence after the plaintiff or prosecutor finishes. When the defense has rested its case, the court may allow the plaintiff or prosecutor to put on rebuttal evidence and call additional witnesses.
Rules of evidence have been developed over the years to insure that trials are fair and orderly, and the judge acts as a gatekeeper for the evidence that comes into court. Insofar as the jury is concerned, the evidence is only that which the judge permits the jury to consider. For instance, statements and arguments of the lawyers are not evidence, and neither is testimony that the jury has heard, but which the judge has ordered stricken from the record. A juror must treat all such testimony as though it had never been given. Similarly, matters that a lawyer offers to prove, but which the judge will not allow to be presented, are not to be considered as evidence. Jurors are not to consider personal knowledge or any other information about the witnesses, parties, lawyers or issues connected with the case than that which is presented in the trial.
Examination Of Witnesses
To prove a certain side of the case, lawyers may call witnesses to the stand for examination. Lawyers ask questions of the witnesses to bring out the specific facts they wish to show. The questions asked should have some bearing on the case, and the witnesses should know about the subject or matter being discussed. If these and other rules are not followed, the lawyers on the other side of the case may object. If the judge believes the question or answer does not comply with the rules of evidence, the objection will be sustained. On the other hand, if the judge does not believe the law requires the exclusion of the evidence, the objection will be overruled, and an answer will be required. The various rulings by the judge during witness examination do not mean that the judge is taking sides. The judge is merely deciding whether the law does or does not permit a particular question to be asked and answered. Even if the judge decides every objection in favor of one side, it does not mean that side is entitled to win the case.
When the direct examination of a witness is finished, the lawyer for the other side may cross examine, which means that he or she may ask questions of the same witness. When cross examination is finished, the first lawyer may ask questions on redirect examination to clear up points developed on cross examination. To keep out improper matters, witnesses are allowed only to answer the questions asked. If the witness makes a statement which is not a proper answer to a question, it may be stricken out, which means jurors must disregard it entirely.
Each juror should pay close attention to the witnesses who testify, both to hear what the witnesses say and to watch their manner and actions. In determining the credit to be given to witnesses, jurors may take into account their ability and opportunity to observe, their memory, their manner while testifying, any bias or prejudice they may have, and the reasonableness of their testimony in light of all the evidence in the case.
Conferences And Delays During Trial
There are occasions during a trial when the lawyers may confer with the judge out of the hearing of the jury, or the judge may excuse the jury from the courtroom while the attorneys argue a point of law. In either case, jurors should not feel slighted or attempt to guess what is being said. These conferences are often held to avoid confusing or misleading the jury on a technical legal matter or to simplify issues. Although such hearings may seem time-consuming, they usually speed up the trial process.
There may be other delays during the trial, for instance, something may have happened to delay someone, the judge may be looking up the law on some point which has suddenly arisen, or the parties may be trying to work out a settlement. Service as a juror may sometimes require patience.
Guessing At The Judge's Opinion
As the trial proceeds, jurors sometimes try to guess at what the judge thinks about the case or the way it should be decided. This is a mistake. Even though the judge's rulings may be mostly or entirely in favor of one party, that does not indicate how the judge thinks the case should be decided. If the judge has an opinion about the facts, and it is one which is legally proper for the jury to know, the judge will make it plain in the directions or instructions of law at the end of the trial.
Closing Arguments Or Summations
After all the evidence has been presented, the lawyers for each side will make closing arguments to the jury, giving the reasons why they believe their side should prevail. If the testimony of witnesses is conflicting, the lawyers will tell the jury why the witnesses on their side are more persuasive than those on the other side.
What the lawyers say in closing arguments or summations is not evidence and should not be considered as such. Jurors should, however, pay careful attention to the arguments because lawyers have experience and training in analyzing and interpreting evidence, and these arguments are permitted so that you may have the benefit of that experience and training. Nevertheless, it will be for the jury to determine, through judgment and common sense, which of the arguments is the most reasonable analysis of the facts.
After the closing arguments are made, the judge will give instructions to the jury on which questions it is to decide and what specific law applies to that particular case. The kind and amount of proof required will be pointed out. The juror should listen to these instructions very carefully. If, in considering the case in the jury room, there is any disagreement as to what the judge instructed, or its meaning, the jury may ask for further instructions. Such a request should be made in writing and given to the court bailiff who will pass the request on to the judge.
After the judge has delivered the instructions, the jury will go to the jury room to review the evidence according to the judge's instructions and reach a verdict. The verdict is the final decision of the jury; it resolves the case.
The first duty upon retiring to the jury room is to select someone to preside over deliberations and act as a spokesperson in the courtroom. It is the duty of this juror, usually called the "foreperson," to see that discussion is carried on in a sensible and orderly fashion, that the issues submitted for decision are fully and fairly addressed, and that every juror has a chance to say what he or she thinks upon every question. The foreperson conducts voting and also signs any written verdicts required and any written requests made of the judge. While the foreperson should express his or her opinions during the deliberations, these opinions are entitled to no more or less weight than those of the other jurors.
Differences of opinion often arise between jurors during deliberations. When this happens, each juror should say what he or she thinks and why. By reasoning the matter out, it is usually possible for jurors to agree. Jurors should not hesitate to change their minds if they decide their first opinion was not right, but they should not change their decisions unless their reason and judgment is truly changed. Jurors should vote according to their own honest judgment of the evidence. If a jury cannot agree within a reasonable time, it may result in a new trial, which may be a great expense to the parties and the state. Jurors are expected to be fair, reasonable and courteous to each other, and try to reach an agreement which is a "fair and true verdict."
When a verdict has been reached, the jury will return to the courtroom. The verdict will be read in open court by the clerk and accepted by the judge. Sometimes one of the parties will ask that the jury be polled. This means the clerk will ask each juror individually in open court if the verdict is his or her own verdict. After the verdict is delivered, the jury's service will be complete, and the jury will be discharged by the judge.
After The Trial
Often when a jury trial is completed, reporters and other members of the media or the attorneys and parties involved in the case wish to ask jurors about their deliberations and what factors influenced the final verdict. Jurors are under no obligation to answer any questions about a case or comment upon it in any way. A simple refusal or response of "no comment" should suffice.
On the other hand, if jurors wish to speak with the media or attorneys about the trial, they are free to do so. Remember, however, that it is not appropriate for any juror to reveal the votes of any other member of the jury.
Do's And Don'ts
There are certain rules that a juror should follow throughout the trial in order to be fair to all sides:
Inspecting the Scene: The case on trial may involve a certain place or thing, such as the scene of an accident, a particular business place, the operation of a traffic light or the like. If it is necessary and proper for the jury to make an inspection of the place or thing, the judge will order that the entire jury do so, with the judge and the lawyers present. It is improper for any juror to make an inspection unless ordered by the court. An unauthorized inspection by a juror might force a retrial of the case.
Discussing the Case: During or before the trial, jurors should not talk about the case with each other, with other persons, or allow other people to talk about it in their presence. If anyone insists upon talking about the case after repeated attempts to silence them, the juror should report the matter to the judge at the first opportunity.
News Accounts: To ensure that jurors keep an open mind until all the evidence, arguments and the instructions of the court have been heard, they should not watch television accounts, listen to radio broadcasts, or read newspaper articles which may occur during the trial. Such sources may give a biased or unbalanced version of the case.
Talking With Parties or Lawyers: Jurors should not talk with any of the parties, witnesses or lawyers during the trial. It may give the appearance that something unfair is happening.
Jury Research Organizations: There are a number of organizations which conduct research on the composition of juries and its potential impact on the verdicts and awards in different types of cases. Since the names of prospective jurors are a matter of public record, there is a small chance that jurors may be called prior to, or during, the term of jury service by one of these research groups. Jurors are under no obligation to provide personal or other information to these organizations and may simply refuse to participate if they wish. These and any other attempts by people other than court officials to contact and question jurors should be reported to the circuit clerk who will inform the judge.
Promptness: It is most important that jurors not be late in reporting for duty. One juror who is late wastes the time of all the other jurors, the judge, the lawyers, the witnesses, and the parties. A lawyer, witness or juror may be fined for contempt of court for being tardy without good cause. The circuit clerk's office should be notified of unavoidable delays.
Personal Problems or Emergencies: Jurors should notify the judge of any problem which may affect service or any personal emergencies which occur during trial. In these situations, a juror may send word to the judge through court personnel or may ask to see the judge in private.
Legal And Judicial Terms
Allegation -- an assertion, declaration or positive statement by a party to a case which states what the party expects to prove.
Answer -- the defendant's written response to allegations in the case.
Appeal -- the process by which a decision in a case is carried from a lower court to a higher one for review.
Bailiff -- a court official who maintains courtroom order and security and also assists the judge and jury as necessary.
Charge to the Jury -- a judge's instructions to the jury regarding the laws pertaining to a case.
Civil Case -- an action brought by a person, company or other entity -- the plaintiff -- to protect some right or to help recover money or property from another person or company -- the defendant.
Circuit -- a geographical court jurisdiction composed of one or more counties.
Closing Argument -- a summary of the evidence presented to the jury by the attorneys.
Complaint (civil) -- written statements by the plaintiff(s) setting forth the claims against the defendant(s).
Complaint (criminal) -- a formal statement charging an individual with a criminal offense. Criminal Case -- an action brought in the name of the State of West Virginia to try a person -- the defendant -- who is charged with a crime.
Cross-Examination -- the questioning of a witness by the opposing side.
Defendant -- the person against whom a civil lawsuit is brought, or, in a criminal case, the person who is charged with committing a crime.
Deliberations -- jury discussions and consideration of the facts presented during the trial prior to reaching a verdict.
Deposition -- witness testimony taken under oath and outside the courtroom.
Direct Examination -- the first questioning of a witness by the party on whose behalf the witness is called.
Due Process -- a constitutional provision guaranteeing an accused person a fair and impartial trial.
Evidence -- any legally presented proof which may be established by witnesses, records, documents, or physical objects.
Exhibit -- any paper, document, or other object received by the court and offered as evidence during a trial or hearing.
Felony -- a serious criminal offense punishable by imprisonment in the penitentiary.
Indictment -- a grand jury's written accusation charging that a person or business allegedly committed a crime.
Instruction -- a direction given by a judge to the jury regarding the law in a case.
Litigant -- a person or group engaged in a lawsuit.
Misdemeanor -- a less serious criminal offense than a felony which is punishable by a fine or imprisonment in jail.
Oath -- a written or oral pledge to speak the truth.
Objection -- a statement by an attorney opposing the admission of specific testimony or evidence during trial.
Opening Statement -- an outline of anticipated proof presented to the jury by the attorneys at the beginning of the trial.
Overrule -- the court's denial of a motion or objection raised to the court; when a court overrules an objection to evidence (for example, testimony), the jury may properly consider it.
Parties -- persons, corporations, or associations which have brought a lawsuit or are defendants in a trial.
Plaintiff -- in a civil case, the person or other entity who files a claim against another person or, in a criminal case, the State of West Virginia.
Probable Cause -- a reasonable belief that a crime has or is being committed; the basis for all lawful searches and arrests.
Prosecution -- the act of pursuing a lawsuit or criminal trial; the prosecution in a criminal case is brought by the state through the prosecutor.
Prosecutor -- the public official who performs the function of trial lawyer for the state.
Redirect Examination -- the examination of witnesses which follows cross-examination and is exercised by that party who first examined the witness.
Restitution to Victim -- an amount of money the court requires the defendant to pay the victim of a crime to repay the victim for damages or losses suffered as the result of the offense.
Striking a Jury -- process of selecting a trial jury where attorneys "strike" or excuse jurors until the number of jurors required for a trial remains.
Sustain -- court's acceptance of any motion or objection; when a court sustains an objection to evidence (for example, testimony), the jury may not consider it.
Trial -- examination of issues regarding fact and law before a court.
Verdict -- the final formal trial decision made by a jury, read before the court, and accepted by the judge.
Voir Dire Examination -- the preliminary questioning of jurors by the attorneys and/or the judge to establish their qualifications to sit on a particular jury.
Witness -- a person subpoenaed to testify under oath who possesses factual knowledge about a case.
This booklet was prepared by the
WEST VIRGINIA SUPREME
COURT OF APPEALS Justice Calls
The Past, The Present or The Future? Welcome reader,
You are not here by accident. It was not destiny either. It wasn't by chance or luck either. What brought you to this specific space, at this specific time was just idle human nature. The past, the present or the future - which controls your view is an amateur writer's insight into what makes you tick.Yes, what makes you tick as a person. If you do not realize that you and your view is precisely your problem, then hopefully by the time you are done reading, you'll have come to that self realization and will actually want to do something about it. Personally, I have no vested interest in what you do or how you live your life or even how you view your life, because in the end, it is your problem, one which, I have no say in. Change is a wonderful thing and should you feel it is necessary to hold in your present status, then I can only say that I am saddened that you would think that.Change - the unknown and unpredictable....Regardless of what you might think, change happens every day, even if you do not see it happen. The unknown and unpredictable nature of change comes without warning and often blindsides those who it affect/effects.
The "unknown" is unpredictable, in and of, itself, which causes fear in many people. When someone does not know something or lacks knowledge about such a thing, then most often than not, they fear it. This is human nature and is not worth your worry or fret.
The Past, the Present or the Future - Which controls your view is a simple explanation about yourself and what is in your best interest. Now you might be wondering (a) how would you(me) know what is in my(you) best interest? and (b) who do you(me) think you are?
Well, let's address the latter than the former, so as to get the easiest questions answers first. Who do you(me) think you are? I am not prophet, if that's what you're tending towards. I am not a scholar or a philosopher, if your thinking is in that direction. I am not a "know-it-all" either. Understand or Lost?Source: Raymond ChoiniereMany understand and many are lost....Since I am none of the above, the only available option left is that I AM a human being, with a unique understanding, for which, I presently call- wisdom of life. Many laugh at what I have to say and many dismiss my words, but the message conveyed is to still remain, etch in their thoughts whether or not they like it.
I am not part of the educated elite of the world nor do I want or strive to be part of that world. The educated elite have proven they are not worthy of spit, much less anything else. They do more harm to others than they commit of value. They destroy and cause destruction more than those who are not so well educated. Therefore, it proves they lack a moral value and possess a lack of knowledge and wisdom about life.
Am I better than these people? I would certainly hope so, considering I do not damage my life and I do not damage the life of others. But, at the end of the day, it only proves that I understand and that they are lost. Therefore, I am not better than them, but only seem to be. The Past, The Present or The Future....Source: Raymond ChoiniereThe Past, The Present or The Future....You live in one of the past, the present or the future and it is your view that control your life. The past- a time you have lived through and experienced, for which, you gained knowledge and hopefully wisdom. Not everyone gains wisdom.
The present- the here and now, the moment at which is a relative, because time continues regardless of actions or thoughts. It is fleeting to say the least and most people have a view that presents the present within a certain time frame. The present to some is about living for a specific moment and making the best of that moment while it lasts. To some, it's not relevant because they are not bothering to look at it all. To others, it's just a matter of perspective or perception and is left at that alone.
The future- is unknown to most, because they cannot see two feet in front of their face, much less one day down the road or 10 years further. The future to some is a scary place, due to the fact that they have the uncanny ability to see the path being walked and where it ends up. Your ideology mattersSource: Wavegirl22Your view.....The simple fact that many people do not realize that their own view hinders their ability to live their life, borders on the line of being absurd. If you have a negative view, then you will see only negative things. Therefore you will have a closed or narrow mind as to things, which will limit your individual ability to make changes or to see changes coming.
If you have a positive view, then you will be more open minded toward things as they happen and will be able to use your abilities to handle certain negative situations as they come, because you'll end up seeing the positive aspect for which you were to gain from it. An open mind allows for growth and expansion of oneself, while a closed or narrow mind eliminates growth and brings on stagnation. Living in the past?Source: Raymond ChoiniereLiving in the past.....Living in the past happens to some people and yet they do not even realize it is happening to them. It's almost absurd to think about, but the truth of the matter is that if you look around at the people around you and pay attention to them, you can see it in their actions. Especially, those who you interact with on a daily basis, such as family and friends, and even associates at work.
These people constantly bring up things that have happened to themselves, as though it matters at this specific point in time. They fail to notice it is not connected nor have they properly learned how to deal with whatever issues they refuse to let go of.
Those who talk about "in my experience" that's not how things work, show you their open ignorance about life and also appear to lack sufficient amounts of wisdom to move on forward with their life. Some people have been victims of such things as rape or torture or scams, and they continue to harp on it or dwell. They seem to have the inability to realize it actually took place, which is a shock effect that can last for a lifetime, if not properly handled. Living in the present?Source: Raymond ChoiniereLiving in the present.....Living in the present is about the here and now. Making the best of the situation you are in right at this particular moment, but the moment doesn't last long enough to be lived in, because in a short span, it becomes the past. So, it is a futile attempt to control one's view.
What you did five minutes ago is already the past. Did you make the best of that span of time? What exactly did you do to make the best of that time?
Spend time with friends, do a project with a family member, play a game, go to work, go to the store or something that did nothing to enhance your life. Living in the future?Source: Raymond ChoiniereLiving in the future......This very concept might escape the average person, because as I said earlier, most cannot see two feet in front of their face, much less anything else. Living in the future is about planning for your future, seeing the path your life is on and evaluating it's direction, and determining if the path you're on is really going to give your life value that you want, need or desire.
You should be living in the future. You should be seeing your future via your imagination and making the images you need, want or desire, to become part of your life. If you do nothing about what you truly need, want or desire, then you will have wasted your life living with a view that controlled you, instead of you controlling your life.
The future is not unknown as many like to believe, because the sight needed is in your view of life. You can see it if you want to, if you truly need to or have the desire to truly live life. The goal of your life and what is in your best interest is in your view. As a part of your view is to bestow yourself with a meaning for your life. That meaning fulfills a specific purpose you set for yourself. Without either, you just waste time and all your effort.Knowledge and wisdom are essentials!Source: Raymond ChoiniereKnowledge and Wisdom are your keys....As you gain in age, you gain in knowledge and wisdom or suppose to. You gain in knowledge in two ways, education and experience. What you are taught and what you physical do through your own actions create the knowledge you accumulate.
The lessons you learn over the course of your life and the wisdom gained, is suppose to teach you the truth about your life. However, if you are taught by severely ignorant people or people who choose ignorance, then the supposed wisdom you gain will give you a false truth about life.
You will most likely pick up those traits from those people and become ignorant more so than if you learned from someone who had already gain true wisdom of life. How are you to tell the difference? Some people claim truth is known when it's heard and some would beg to differ on that statement. The wisdom of life that is to be gain is through rationally sane and reasoned conscious thought, reinforced by honest action. I do hope you learned something today.
Thank you for your time.
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