Week 1
Juridical Context
Involuntary vs Voluntary Treatment
- Involuntary treatment is only possible if the o ender is considered a danger to self, society and
others
Civil Law vs. Criminal Law
- Civil Law has a civil judge, no crime has yet occurred and is therefore a preventative measure
- Criminal Law has a criminal judge, the crime has already been committed
National and International Criminal Law
- Every nation can shape its own criminal justice system and criminal code, so criminal codes /
systems can vary a lot even within the EU
- Trial by Judge / Bench Trail = Germany, Netherlands
- Trial by Jury = UK, Belgium, France & US
- Similarities between countries are criminal laws recognized across the globe, of which the most
important ones are regarding human rights and included into the law (=codi ed)
• On an international level these are treaties between nations which have a higher rank than
the national constitution and need to be signed (outside the home country) and then rati ed
in their home country
Europe - European Convention on Human rights
- Right to Life
- Prohibition of Torture
- Right to Liberty and Security
- Right to a fair trial
- No punishment without law
Purposes of Punishment
- Retribution
If you break the law you deserve punishment; an eye for an eye;
Punishment should in ict the same on the o ender as the o ender has in icted on their victim /
Punishment should be proportionate to the crime
- Deterrence
Punishment is supposed to scare o enders o from committing (more) crimes
General Deterrence = Punishment as a deterrent to the population at large
Speci c Deterrence = Punishment will deter the individual from committing more crimes
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, - Incapacitation
Take o ender out of society and into jail to remove the threat from society
- Correction
Sentence is supposed to correct the o enders wrong behavior and turn them
1. into less of a threat for society
2. into a person who has the chance for a normal life
- Restoration & Reparation
Emphasizes the harm caused to the victims. Punishment for o ender serves as restoration of
justice and reparation for the victims
Crime hurts, Justice should heal
An aim for restoring, strengthening, and building relationships between o enders, victims, and
communities; Focus on repairing harm done to victims as well as repairing the broken o ender-
victim and o ender-community relationship
Compensation Options
Material Damage (only expressed nancially)
Immaterial Damage (trauma due to identifying corpse)
Immaterial Damage (grief)
Murder vs Voluntary Manslaughter
Murder = taking a person’s life on purpose and with intent; plan needs to be proven
Voluntary Manslaughter = “In the heat of the moment”, no plan needs to be proven
Four Questions in the Criminal Justice Process
- Can the behavior the accused is charged with be proven?
• Needs to be answered with yes, or the accused is acquitted
- Can the act be quali ed as a criminal o ense?
• Needs to be answered with yes, or the accused is discharged
- Is there a justi cation for the act?
• Has to be answered with NO, if not, (i.e. there is a justi cation) the accused will be
discharged
• Does NOT concern the mental state; can be self defense which needs to be proportionate
- Can the accused be excused?
• Has to be answered with NO, if not, (i.e. there is a justi cation) the accused will be
discharged
• Can concern the mental state
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,Mental & Physical Elements
Actus Reus = Physical; a guilty act
Mens Rea = Mental element (criminal intent); a guilty mind; being mentally accountable for the act
Insanity
• “A person who commits an o ense for which he cannot be held responsible by reason of
mental defect or mental disease is not criminally liable”
• No free will at time of the o ense as result of mental disorder, defect, disease
• Court advised by psychologist and psychiatrist; judge has the nal say
• Being discharged means no punishment (in case of insanity) and leaves only the
possibility of a measure of involuntary hospitalization and treatment
Hospital Order
For minor crime, can be compared with hospital orders based on civil law
TBS Order
Serious crimes; detention and treatment in a hospital
Conditions include a crime with >4 years of punishment, crime due to a mental disorder, and
safety of others or goods is in danger
→ TBS with mandatory hospital care:
Cases with no harm (e.g. stalking)= max. 4 years; Cases with Harm: depends
→ TBS with conditions attached
mandatory hospitalization not yet necessary; max of 9 years
→ PIJ Order
Only for juveniles
Criminal Responsibility
NL: Scale of 3 (previously 5) grades of criminal responsibility
→ Responsible, Diminished Responsibility, Complete Legal Insanity
US: It’s often either fully legally insane or fully responsible, due to di culty to measure and
draw clear borders for diminished responsibility; however, it is tested before the trial if one is
competent to stand trial (able to counsel with lawyers) which is not a thing in NL
Sweden: Similar system to NL which is split in two; Compulsory Psychiatry Act / Compulsory
Forensic Act (instead of TBS)
NL vs Germany: Principle of Expediency in NL (not every crime needs to be investigated) /
Principle of Legality in GER (every crime needs to be investigated)
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, Mental Disorders
Prevalence
• About 45% of people in TBS have ASPD
• Personality disorders extremely common in general (also borderline)
Treatment & Punishment
• Dialectal behavioral therapy for borderline (coping mechanisms for high emotions)
• Treatability for ASPD unclear, researchers disagree, most likely problem is lack of
motivation for treatment (unless they can gain something)
• Punishment doesn’t seem to be e ective on the long-term
Victim Impact Statement and Legal Procedures
- Experiences of Victims → Victim Impact Statement
• Allows the victim to voice feelings, information etc. about the harm that was done to them
• In the US there is additionally a Victim Statement of Opinion
→ The victim gets to voice their opinion about an appropriate sentence
• Not the case in the Netherlands
- Goal of the Victim Impact Statement
• Provide some information to the judge so the judge knows the impact of the crime on the
victim
- And could take that into account for the sentencing
McNaghten’s Rule
- “To establish a defense on the ground of insanity it must be clearly proved, that, at the time of
committing the act, the party accused was labouring under such a defect of reason from disease
of the mind, as not to know the nature and quality of the act he was doing, or if he did know it,
that he did not know that what he was doing was wrong.”
- Meaning: In order to use the insanity plea, the defendant either should not be able to know what
they were doing or, if they did, didn’t know the consequences / know that it’s wrong
- Had to be revised
Durham Rule
- “A person is not criminally responsible if the unlawful act was a product of mental disease or
defect”
- Two Questions needed to be answered to show insanity
• Did the defendant have a mental disease or defect?
• if so, was the disease or defect the reason for the unlawful act?
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