The raison d’être of hate-crime laws

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

The raison d’être of hate-crime laws

Authors Kamban Naidoo

ISSN: 1996-2118
Affiliations: Senior Lecturer, Department of Criminal and Procedural Law, UNISA
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 158 – 172

Abstract

Hate-crime laws include laws that specifically criminalise unlawful conduct motivated by bias or prejudice towards personal characteristics of the victim and laws that allow for the imposition of harsher penalties on convicted hate-crime offenders. Such laws are often justified on the retributive basis that hate crimes cause greater harms than crimes that are not motivated by bias or prejudice. The imposition of a harsher punishment on the convicted hate-crime offender is therefore justifiable since it is proportional to the harms caused and because it is the offender’s just desert. However this retributive justification for hate-crime laws has been the subject of academic criticism. This article therefore attempts to find an alternative rationale for hate-crime laws by exploring denunciation as another justification for retribution and by considering the utilitarian theory of punishment. The South African context is considered since hate-crime laws do not presently exist in South African law. This article posits that the enactment of a hatecrime law in South Africa could be regarded as a symbolic commitment to equality since hate crimes are said to violate the right to equality.

Considering parental alienation under the aegis of the criminal law

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

Considering parental alienation under the aegis of the criminal law

Authors Charnelle van der Bijl

ISSN: 1996-2118
Affiliations: Professor in the Department of Criminal and Procedural Law, University of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 140 – 157

Abstract

Parental alienation conduct forms the focus of this article. It is distinguished from the parental alienation syndrome which identifies specific behavioural symptoms in children exposed to parental alienation. The harms caused by parental alienation conduct are investigated. The manner in which family courts deal with parental alienation is examined as well by the best interests of a child standard. Parental alienation conduct is identified as a form of emotional and psychological abuse and as a form of domestic violence. The lacunae evident in the approaches adopted by the family courts are examined and highlighted. Legislation regulating and proscribing parental alienation abroad are considered. The field of criminal law is examined in order to establish solutions to the gaps that are evident in the family law. A cross-dimensional approach between family law and criminal law is also suggested.

Reflections on the trivialisation of genocide: Can we afford to part with the special stigma attached to genocide?

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

Reflections on the trivialisation of genocide: Can we afford to part with the special stigma attached to genocide?

Authors Beitel van der Merwe

ISSN: 1996-2118
Affiliations: Law Researcher and Coordinator of the African Group of Experts on International Criminal Justice
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 116 – 139

Abstract

Objections to the trivialisation (or banalisation) of genocide are often raised, but almost always without any deeper exploration of the underlying issues giving rise to these objections. This article focuses on the main legal and extra-legal concerns regarding the trivialisation of genocide and addresses the following questions: are concerns regarding the trivialisation of genocide justified? And, why is it important to retain the ‘awesome nature’ of the crime of genocide, especially considering the fact that genocide is widely viewed as constituting a specific, and not necessarily a more egregious, form of crimes against humanity? The article provides a brief discussion of the debate surrounding the existence of a hierarchy of international crimes, more specifically, whether genocide represents the ultimate crime within such a hierarchy. While it appears that genocide does not constitute the ultimate crime in a de jure sense, it is argued that genocide remains de facto the ultimate crime and that it has a special stigma attached to it. The article highlights these features of genocide as the primary cause of two phenomena threatening to undermine the significance of genocide, namely, judicial and extra-judicial trivialisation. These types of trivialisation together with examples are described separately. Finally, the article examines various practical and policy reasons for the maintenance of a sharp distinction, both legally and extra-legally, between genocide and crimes against humanity.

Involuntary contraceptive sterilisation of women in South Africa and the criminal law

by | Oct 13, 2019 | SACJ, SACJ V29 I2 2016

Involuntary contraceptive sterilisation of women in South Africa and the criminal law

Authors Camilla Pickles

ISSN: 1996-2118
Affiliations: Postdoctoral Research Fellow at the Institute for Advanced Constitutional, Public, Human Rights and International Law, University of Johannesburg
Source: South African Journal of Criminal Justice, Volume 29 Issue 2, p. 89 – 115

Abstract

The Sterilisation Act 44 of 1998 prohibits sterilisations without informed consent. Despite its enactment, people are being involuntarily sterilised in South Africa and women are reportedly disproportionately affected by this practice. An involuntary sterilisation violates a number of human rights and is recognised as a form of gender-based violence. On this basis, the article emphasises the role of the state to investigate and prosecute instances of involuntary sterilisations. It identifies s 9, read together with ss 2 and 4 of the Sterilisation Act 44 of 1998 and the common-law crime of assault as relevant crimes being perpetrated when a woman is involuntarily sterilised and considers when and how each crime is applicable. The article also recognises the complexity of consent-acquiring practices in the context of reproductive health care and considers criminal liability of different health care providers in relation to refusal to consent, coercion and signed consent forms. These issues need increased consideration because, to date, no health care provider has been held criminally liable for treatment without consent and there is no reported case law demonstrating how to apply criminal-law principles to this area of concern.