LEGITIMATING TRANSPHOBIA

Transgender persons are strangers to the law; or put more accurately, the legal imagination is so deeply entrenched in normative gender binarism as to effectively render transsexuals a ‘freakish’ anomaly to law. This essay attempts to offer a reflection on transgenderism, law and sexual crime from a human rights and criminal law perspective. It focuses on one of the most violent types of institution in society – the prison – and asks: what are the legal imagination and practice surrounding transgender prisoners as they are linked to social and cultural transphobia? What ‘human’ rights can be practiced for a dehumanized class? It first surveys the legal predicament of transgender prisoners in the US prison system in relation to Eighth Amendment rights provided by the US Constitution. The US situation has seen cases that have importantly shed light on other jurisdictions when engaging with the combined questions of prisoners’ rights and transgender rights together. The analysis is then taken to the context of Hong Kong prisons in a modest application. In contrast to some other Asian contexts (such as Taiwan, Thailand and Indonesia), critical cultural studies of transgenderism are non-existent in Hong Kong. Meanwhile, human rights studies of the same have only emerged through the work of legal scholar Robyn Emerton. It is hoped that a rights-based approach will emerge in Hong Kong for the protection of transgender inmates from sexual violence in local correctional facilities.     

The courts and elective abortions under Medicaid.

Although therapeutic or elective abortions are among the most frequently performed medical procedures for women throughout the world, indigent American women are now denied coverage under the Medicaid program because of the Hyde Amendment, which prohibits the use of federal funds for the termination of pregnancies except in narrowly defined cases. The vast majority of states, left free to choose as to the expenditure of their own funds for abortion coverage, have also denied this type of welfare assistance to economically eligible women. The discriminatory effect of the refusal to subsume abortions as part of the Medicaid mandate has been the subject of various legal actions. The constitutionality of that denial is at issue and now awaits Supreme Court determination.     

The denial of emergency protection: factors associated with court decision making

Despite the importance of civil orders of protection as a legal resource for victims of intimate partner violence, research is limited in this area, and most studies focus on the process following a court's initial issuance of an emergency order. The purpose of this study is to address a major gap in the literature by examining cases where victims of intimate partner violence are denied access to temporary orders of protection. The study sample included a review of 2,205 petitions that had been denied by a Kentucky court during the 2003 fiscal year. The study offers important insights into the characteristics of petitioners and respondents to denied orders and outlines individual, contextual, structural, qualitative/perceptual, and procedural factors associated with the denial of temporary or emergency protective orders. Recommendations for statutory changes, judicial education, and future research to remedy barriers to protection are offered.     

"Everyone with Eyes Can See the Problem": Moral Citizens and the Space of Irish Nationhood

This paper examines Ireland's 2004 Constitutional Amendment which removes birthright citizenship from any future Irish‐born children of immigrant parents. I argue that for particular historical reasons, the ability of the state to convince its citizens of the necessity for this Amendment was remarkable and I suggest that it was able to do so by constructing citizenship as a moral regime and foreign‐nationals and their foetuses as ‘suspect patriots.’ I describe how the notion of immorality is laminated upon black bodies — specifically black pregnant women — and how the presence of black migrant workers, refugees and asylees consequently comes to be experienced in Irish national space as transgressive, their political subjecthood constrained by the supposedly legible abjectivity of their bodies. The issue of race remains unenunciated, and yet, as the Minister for Justice stated during the referendum debate, ‘anyone with eyes can see the problem.’ The Irish government's privileging of moral rather than cultural incommensurability is strikingly similar to culturalist rhetorics of exclusion that are often invoked when race is at issue in European public debate on immigration. Configured upon, and therefore experienced as a type of body, immorality becomes an alibi for race and is naturalized as a form of exclusion and as a potential site of state intervention in the form of xenophobic legislation and policymaking. Reading this decision as merely racist however, fails to give voice to the experiences of Irish Citizens who voted for this Amendment. Their struggle to build a “New Ireland” and to accept a multiculturalist framework in the face of neo‐liberal restructuring policies and a European‐wide retreat from the welfare state must be considered as being in dialectical tension with the ideological smearing of immigrants if we are to fully grasp the complex interaction between relations of power and the privileging of difference.     

Elderly prisoners: a growing and forgotten group within correctional systems vulnerable to elder abuse

There are over 2.1 million people incarcerated in the nation's jails and prisons. Additionally, close to 600,000 prisoners are released annually into communities across the country. Many prisoners and those released from prisons are elderly. The purpose of this article is to examine the systemic abuse and neglect experienced by elderly prisoners while they are incarcerated and when they are released from prison. Most correctional systems have inadequate resources, processes, and personnel to manage the elderly population inside and outside of prisons. In addition to providing a definition of "elderly prisoner," two specific problems-prison health care and prisoner re-entry-are examined in the article. The article concludes with recommendations for both policy and research on how best we can further understand and address the multiple needs and concerns faced by elderly prisoners.     

Secondary victimization of rape victims: insights from mental health professionals who treat survivors of violence

Rape victims may turn to the legal, medical, and mental health systems for assistance, but there is a growing body of literature indicating that many survivors are denied help by these agencies. What help victims do receive often leaves them feeling revictimized. These negative experiences have been termed "the second rape" or "secondary victimization." If indeed secondary victimization occurs, then these issues may be raised in rape survivors' mental health treatment. In the current study, probability sampling was used to survey a representative sample of licensed mental health professionals about the extent to which they believe rape victims are "re-raped" in their interactions with social system personnel. Most therapists believed that some community professionals engage in harmful behaviors that are detrimental to rape survivors' psychological well-being. Implications for future research on secondary victimization are discussed.     

ACHIEVING INDIVIDUALLY SUSTAINED COMMITMENT TO TREATMENT THROUGH SELF-CONSTRUCTED MODELS OF MEDICAL ADHERENCE

One of the main challenges facing medication adherence research is to provide a framework that allows patients and practitioners to effectively use the many efficacious treatments that will undoubtedly be developed in the new millennium. This framework, especially for chronic disorders, must be based on requiring patients to make the long-term behavioral changes needed to achieve a high level of commitment to these treatments. The best way to generate this high level of commitment is through a paradigm shift away from medical and patient models toward models that incorporate the social psychological literature focusing on how people's sense of self is constructed, enacted, and sustained over the life course. This review demonstrates the need, value, and appearance of this shift. First, it describes a previous paradigm shift in the medication adherence literature and then argues that a new paradigm shift is necessary. Second, it identifies and describes the models currently used in adherence research and notes three critical shortcomings of these models. Finally, it demonstrates how symbolic interaction's identity theory may be used creatively to overcome these shortcomings and convert efficacious treatments into effective treatments. Developing such an approach would well position the medication adherence research field for excellent contributions to the treatment of chronic disorders in the twenty-first century.     

Women's Rights vs. "Fetal Rights":

Policies restricting the employment opportunities of women have a long history in the U.S. The most recent manifestation has been so-called "fetal protection" policies, which exclude women of childbearing age from jobs involving exposure to toxins considered dangerous to a developing fetus. Traditional arguments that women's biology is justification to keep them from jobs have resurfaced in a new form. In the present debate the issue is framed as one of competing rights, those of fetus versus those of the woman. An analysis of public policy on this issue from a feminist legal standpoint reveals how the law's implicit male standard hinders the attainment of equal employment opportunity for women, as they must now compete with hypothetical fetuses sa well sa with men.     

The spiritual healing "defense" in criminal prosecutions for crimes against children

Spiritual healing as a defense in cases of parents' rejection of medical treatment for their sick children involves questions of the rights of parents, of children, of the state, and of the U.S. Constitution. State legislation protecting rights of religion, long on the books, is coming into conflict with new legislation on child abuse. This article reviews the current picture of applicable laws in the states and in recent court cases. Limiting the use of spiritual healing as a legal defense is an emerging trend.     

劳动法视域下新生代农民工权利缺失问题

中国经济崛起和城市化进程过程中农民工的贡献有目共睹,城市让生活更美好的诱惑使得中国的新老两代农民工从农村流入城市,2008年1月1日的《劳动合同法》和《劳动争议调解仲裁法》让社会看到了改善农民工权利状况的希望,然而新生代农民工的权利保护尤其是作为一名劳动者的权利保护的现状依然不如人意,没有救济的权利不是真正的权利、迟来的正义是非正义,每年岁末对于农民工权益的突击性保障并不能从根本上解决问题,把包括农民工权益保障的社会问题纳入法治框架内、通过探析新生代农民工权利阙如问题及原因进而发现从制度层面进行解决才是解决农民工权益保障问题的根本途径。     

Beyond Munchausen by Proxy: A Proposed Conceptualization for Cases of Recurring,Unsubstantiated Sexual Abuse Allegations

In the emerging literature, cases involving recurring, unsubstantiated allegations of child sexual abuse have generally been categorized as Munchausen by proxy. Recent scholars have recommended restricting the label to the original conceptualization, involving purposeful deception motivated by psychological needs for medical attention. This leaves many cases unclassified that do not fit the Munchausen by proxy criteria, involve significant risks to the child, and ultimately fall outside of existing structures for Child Protective Services/legal intervention. This paper presents a reconceptualization of such cases, proposing to label them “recurring sexual abuse allegation” cases. Defining the set of cases more clearly can aid child protection workers in their management and encourage research on prevalence, consequences to children, treatment strategies, and needed legal reforms.     

(Dis)Arming the madman: sane supremacy and the Second Amendment

Abstract

The protection of American mental health consumers’ Second Amendment rights is the ‘mad’ liberation issue of the twenty-first century. Federal laws currently dispossess the differently minded of their Second Amendment access and rights to bear firearms. In response to a spate of school shootings, ‘Red flag laws’ are used in an effort to circumvent mad citizens’ rights to self-preservation and defence. In this article I am proposing neither a political-left nor right side of the aisle position, but rather a bipartisan, anti-sanist stance, where I call for an end to America’s contemporary era of sane supremacy that strips the mad citizenry of their rights to own firearms.     

A new asylum law for the KRI and Iraq: Reality or wishful thinking?

Despite having its own internal population displacement due to conflict and civil war, Iraq and the Kurdistan Region continue to accommodate large numbers of refugees from Iran, Palestine, Syria and Turkey. However, Iraq has not ratified the internationally recognized legal framework for the protection of refugees. Currently, the protection offered to asylum seekers in Iraq is regulated by secondary legislation, mostly in the form of administrative circulars. The lack of an applicable law regulating the status of asylum seekers has led to local-level ad hoc policy implementation. Similarly, the Kurdistan Region of Iraq has no legal provisions in its domestic legislation to regulate the status of refugees. This study presents: (a) the argument that Iraq must adopt legislation to regulate the entry, exit and stay of migrants, in line with international protection for both asylum seekers and the provision of adequate rights to refugees, and in accordance with international human rights standards; (b) a proposal for provisions for such legislation in Iraq; and (c) a timely impetus to re-energize local strategies aimed at filling these normative legal gaps through domestic agreements rather than regional and/or international ones.     

The Death Penalty in the Post-Furman Era: A Review of the Issues and the Debate

This is a review of the issues and debate over capital punishment in the United States during the post- Furman era (since 1972). It encompasses a review of the legal issues, highlighting major U.S. Supreme Court cases in which the constitutionality of the death penalty has been challenged. These constitutional challenges have included issues of arbitrariness and race discrimination in the application of the death penalty. Also considered is the Court's 'evolving standards of decency' test in terms of what constitutes cruel and unusual punishment under the Eighth Amendment – relative to the execution of juveniles and the mentally retarded and whether lethal injection is cruel and unusual. The post- Furman era death penalty debate is comprised of two phases, both raised questions about public confidence in the criminal justice system. Phase one, occurring in the 1980s and early 1990s, was concerned with the lengthy appeal process and the lack of finality in capital cases. Phase two emerged in the late 1990s and 2000s and focused on the accuracy (wrongful convictions) and fairness (arbitrariness and discrimination) of the administration of capital punishment. The DNA revolution and a parade of high-profile exonerations in the United States contributed to this latter phase. Finally, the death penalty debate is considered from an international and human rights perspective.     

Socialising disease: medical categories and inclusion of the aged1

When older peoples’ troubles are categorised as social rather than medical, hospital care can be denied them. Drawing on an ethnography of older people admitted as emergencies to an acute medical unit, the article demonstrates how medical categories can provide shelter for older people. By holding their clinical identity on medical rather than social grounds, physicians who specialise in gerontology in the acute medical domain can help prevent the over‐socialising of an older person's health troubles. As well as helping the older person to draw certain resources to themselves, such as treatment and care, this inclusion in positive medical categories can provide shelter for the older person, to keep at bay their effacement as 'social problems’. These findings suggest that contemporary sociological critique of biomedicine may underestimate how medical categorising, as the obligatory passage through which to access important resources and life chances, can constitute a process of social inclusion.     

The Impact of New Treatments and Other Trends on HIV Prevention for Gay and Bisexual Men in the United States

SUMMARY

This paper details how HIV prevention workers in the United States are being! impacted by advances in HIV/AIDS treatments and a changing HIV prevention paradigm. Approximately sixty participants attending the 1997 National Lesbian and Gay Health Conference and AIDS Fprum in Atlanta, GA, provided observations about how HIV prevention targeting men who have sex with men is changing in the United States. While new treatments may be the most noticeable change impacting HTV prevention, radical change due to the synergistic effects of several factors, not only recent medical advances, is seen as propelling a paradigm shift. Twelve challenges were identified and suggestions for facilitating progress in the changing paradigm enumerated. The future of HIV prevention is discussed.     

Religious Cults: Family Concerns and the Law

The activities of contemporary religious cults cause concern and controversy among parents and mental health practitioners, both because they are perceived as threats to the well-being of their young adult members and because such cults are protected by the First Amendment. The primary issues discussed here are "mind control" and informed consent. Possible bases for legal redress of alleged injuries, as well as possible preventive measures, are suggested.     

Ramen Politics: Informal Money and Logics of Resistance in the Contemporary American Prison

This article explores an unexpected yet pervasive arena in which changes to security may alter lived experiences of and responses to punishment. Namely, amidst changes in the quality of care behind U.S. prison walls and resultant prisoner insecurities in the face of neoliberal penology, the nation’s prisoners have adapted informal prison markets to address unmet needs and pursue autonomy. Where cigarettes once reigned as the de facto token of exchange in the underground economy, the contemporary American prison is now home to a new form of informal money: cheap, reliable food items like ramen noodles. Drawing on 18 months of ethnographic fieldwork within a U.S. men’s state prison and 82 in-depth interviews with prisoners and institutional staff, this paper explores this change in the form of informal prison money and what it reveals about the nation’s prisons and prisoners. It contends that prison money reflects changing logics of prisoner resistance in particular political-economic and penal contexts. As prison administrative practices, institutional conditions, and legal environments change with time, prisoners adapt expressions of autonomy accordingly. While cigarettes symbolized withdrawal from the rigors of prison life and individualized treatment—the dominant logic of resistance of the prior era—the new ramen currency reflects a growing emphasis on prison “foodways” in opposition to cost-shifting and deteriorating services behind bars.     

Gambling and Problem Gambling Among Recently Sentenced Women in New Zealand Prisons

Ninety-four recently sentenced women prisoners were interviewed to assess aspects of their gambling involvement, problem gambling and relationships between gambling and criminal offending. A third of the women, on the basis of their SOGS-R scores, were assessed as lifetime probable pathological gamblers and just under a quarter were assessed as probable pathological gamblers during the 6 months prior to imprisonment. For women prisoners, a preference for non-casino gaming machines and housie were predictive of problem gambling. Relative to non-problem gamblers, problem gamblers experienced higher rates of childhood conduct disorder and current non-psychotic mental disorder. Just over a quarter of prisoners and a half of the problem gamblers had committed a crime to obtain money to gamble. Few women said their early offending or convictions related to gambling. It was concluded that most women were “criminals first and problem gamblers second” rather than people whose offending careers commenced as a consequence of problem gambling. However, the extent of problem gambling-related offending among the women prisoners highlights the potential for comprehensive assessment and treatment programs in prison to reduce recidivism and other adverse impacts of problem gambling and gambling-related offending.     

Child protection under Swedish law—legal duality and uncertainty

Society's responsibility to protect children from harm as prescribed by the UN Convention on the Rights of the Child raises complex questions about the fundamental rights of both children and parents, as well as when and how authorities are to intervene in order to protect children from maltreatment. Many child protection systems around the world attract considerable criticism, due in part to how the law responds to child protection matters. This article examines the Swedish child protection system from a critical legal perspective with the ideas conveyed within Therapeutic Jurisprudence as a theoretical starting point. The aim is to describe and analyze the legal challenges and dilemmas that meet this system. A legal ambiguity about when and how responsible authorities are to intervene, leading to significant uncertainty for both children and parents, is identified. Furthermore, the strong focus by Swedish authorities on voluntary measures to resolve child protection matters can lead to vulnerable children not receiving the protection to which they are entitled. Certain of the challenges and dilemmas described here are specific to the Swedish system due to its legal context and family support approach. However, other aspects resonate across legal systems and, therefore, may be of a more general interest.