Positive obligations arising from human rights instruments require states to provide criminal law protection to individuals’ mental integrity against psychological violence. These obligations suggest a close connection between psychological violence and coercive control. However, both the concept of mental integrity and its relationship to coercive control remain unclear. This article examines the legal interests protected by offences of coercive control. It argues that such offences are principally concerned with violations of liberty and (mental) autonomy rather than mental integrity. Coercive control offences are therefore likely to protect mental integrity only indirectly. This is not uncommon in criminal law, where offences often do not directly protect the legal interest of mental integrity. An important exception may be the offence of assault, insofar as it encompasses mental assault. If so, this offence seems better suited than coercive control offences to provide the protection of mental integrity required by human rights law. Building on this analysis, the article evaluates different approaches to defining coercive control and mental assault offences and demonstrates how choices concerning offence elements and evidentiary thresholds shape both their scope and their capacity to address psychological violence.
Traditionally, mainstream criminal law discourse has associated domestic violence most closely with physical violence. Feminist jurisprudential approaches, however, have long emphasised coercion and non-physical abuse in domestic violence. The term “coercive control”, developed by Evan Stark in his clinical practice, has led to a growing public and political sentiment that coercive controlling behaviour was an under-recognised precursor to intimate partner violence with associated gaps in the criminal, civil and family law statutes. A stand-alone criminal offence of coercive control was introduced in Queensland, Australia, in 2023. The paper analyses the new offence provisions against a formal rule of law framework, arguing that the offence as drafted offends well-established rule of law principles. It will lead to ambiguity, uncertainty and unpredictability around what does and does not constitute coercive control within a particular relationship and abrogates key evidentiary safeguards that protect an accused’s right to a fair trial. These issues raise important and unanswered questions around how to ensure that the law captures serious instances of coercive control without criminalising behaviour that is fundamentally not criminal.
The International Criminal Court (ICC) faces the critical challenge of balancing its mandate to adjudicate individual criminal responsibility by integrating victims’ narratives into its proceedings. While the ICC readily incorporates victims’ firsthand evidence addressing disputed facts, it struggles to accommodate broader historical and emotional narratives. These accounts often clash with the adjudicative framework of international trials, which reduces them to factual details. This process, termed ‘skeletonization’, excludes essential socio-historical dimensions and diminishes the Court’s truth-seeking objectives. This article identifies a dyadic tension between legal truth and expansive victim narratives, arguing that critiques of narrow legal scrutiny and calls for inclusivity are both legitimate and necessary. Drawing on Robinson’s concept of a ‘zone of permission,’ it identifies two critical zones allowing procedural flexibility. The first, truth and justice, highlights trials’ role in fostering a collective understanding of atrocities beyond determining guilt or innocence. The second, victims’ right to truth, underscores the legal imperative to allow victims to share their experiences beyond binary adjudicative frameworks. The article evaluates adversarial and non-adversarial evidence presentation models to operationalise these zones of permissions, proposing a hybrid model: judge-led direct examinations followed by cross-examinations. This model ensures comprehensive victim narratives while safeguarding procedural fairness. It demonstrates how the ICC’s statutory and procedural framework can accommodate the historical and emotional dimensions of victims’ testimonies. By adopting a narrative-sensitive approach, the ICC can reinforce its commitment to truth, justice, and accountability while fostering a more inclusive understanding of mass atrocities.
The question of when an individual ought to be able to plead the defence of duress in respect of serious violations of international criminal law has not been resolved by the decision to include a form of duress in the Rome Statute. The final definition is complex and contains many caveats, raising the question of whether it could ever be pleaded successfully. There is further complication created by the reference to duress in the Rules of Procedure and Evidence attached to the Statute, where it is used as an example of a mitigating circumstance, submitted to lessen the punishment imposed where there are ‘circumstances falling short of constituting grounds for exclusion of criminal responsibility.’ Recent jurisprudence demonstrates that the interpretation of duress as both a defence and a mitigating circumstance has not clarified the doctrine in international criminal law; the rules around duress as a mitigating circumstance are now connected to the threshold set for duress as a defence. This work argues that reform is required to address the lack of clarity around the definition of duress in mitigation, in a bid to resolve the difficulty of applying the rules in complex cases of responsibility.
Incomplete attempt laws are typically explained as laws that exist to justify timely law enforcement intervention. Such explanations may well provide good reasons for the laws based on harm prevention rationales, but they do not address the question whether a person who has, say, “cocked and aimed the pistol” has actually attempted to kill and is blameworthy for having done so. It turns out that this question is notoriously difficult to answer. This Article describes the challenge of defining incomplete attempt and of identifying and articulating its wrongfulness as a general theoretical matter. This Article then argues in favor of conceptualizing incomplete attempt as an offense of disobedience of the state, as opposed to an offense the wrongfulness of which stems from trying to engage in a morally wrongful act. Such reconceptualization can then serve as a basis for building a more clearly articulated account of blameworthiness of incomplete attempts.
This article explores how national law principles can address inconsistencies in the application of the defence of duress at the International Criminal Court (ICC). The Rome Statute is the first to codify this defence, but its application remains challenging. In Ongwen, both the Trial and Appeal Chambers rejected the defence due to a lack of imminent death or serious harm. Conversely, in Ag Mahmoud, Judge Antoine Kesia-Mbe Mindua found the defence applicable, criticising its narrow interpretation in Ongwen. A restrictive interpretation risks rendering the defence meaningless, while an overly broad one could undermine the ICC's goal of avoiding impunity. Ongwen and Ag Mahmoud are examined, highlighting inconsistencies in interpreting the defence of duress. Drawing on general principles from selected legal systems, the article proposes an approach to balance accountability for serious crimes with a meaningful use of this defence by the ICC.
Forfeiture, a potent tool in law enforcement's battle against crime, especially organized activities, raises a legal conflict involving third parties' rights. This includes the offender's family, investors, creditors, property owners, and victims. Balancing criminal law objectives with civil property rights, this study explores the tension arising from forfeiture affecting innocent parties. It argues for a guided approach to forfeiting third-party property based on legal theories, seeking an optimal balance point that respects the rights of these parties. The study aims to conceptualize a cohesive theory for third-party rights in forfeiture law, enhancing judicial decisions and achieving a refined equilibrium between forfeiture crime-fighting efficacy and the protection of innocent parties.
This paper presents a novel argument proposing greater recognition of the stigmatic nature of the 'psychopath' label in the corporate crime context, particularly in relation to its use within academic research and in criminal judgments. Labelling theory and a communicative account of criminal law and punishment are applied to the issue. The stigmatic nature of the label, as well as its potential to over-stigmatise corporate offenders is assessed. Recommendations are forwarded, primarily in relation to the need for greater judicial engagement with the topic of psychopathy and corporate crime, and greater recognition of the stigmatic nature of the psychopathy label. Alternative labels are forwarded.
Suspended prison sentences are the most commonly imposed sanction type in the majority of post-communist European countries. In Czechia, they began to be widely used within a year after they were first introduced in 1919 despite having been conceived as a rather exceptional measure. Since the 1989 Velvet revolution they have come to dominate the Czech penal landscape, in part due to the unavailability of intermediate sanctions, increasing crime rates, limited state resources and the historic overuse of short prison sentences. Now, in 2024, when none of these factors apply any longer, suspended prison sentences continue to occupy a central position within the Czech penal system. The prominence of suspended prison sentences complicates principled sentencing because the legal provisions that govern them have not changed as their scope and use have increased. This has led to suspended prison sentences being considered a separate type of sanction rather than as a variant prison sentence by practitioners, making it difficult to formulate a coherent conception of this sanction and to define rules governing its imposition. The revocation of suspension after very long suspended prison sentences were imposed in Czechia was also one reason for the country's very high prison population. I argue that one of the main reasons why the scope of suspended prison sentences was enlarged so much without any consideration of the harmful effects this would cause was an ill-considered penal policy created in the absence of sophisticated sentencing scholarship and a lack of attention to sentencing principles.
The ethics of punishment constitutes an area of research that has recently been through a significant expansion, both in breadth and depth. But why is such research important? And how can it be conducted in the most fruitful way? In this article it is argued, first, that the study of penal ethics is important in order to inform penal practice. However, second, it is shown that there are both theoretical and political obstacles to the possibility of delivering genuine action guidance to practitioners. Finally, four recommendations are presented that may help to ensure that research within the ethics of punishment is carried out in a manner that is consistent with the basic justification for its very existence, namely that it is needed to provide moral guidance of penal practices in the real world.
This essay explores Michael Tonry’s treatment of sentencing law and policy within the U.S. as an inherently comparative project. The essay draws from Tonry’s “early period” in comparative sentencing from the late 1970s to the middle 1990s, when his writing was largely U.S.-centric, focued on quickly changing conditions in dozens of states and the federal system. Tonry classified the several models of “sentencing reform” that were being tried across the country, drew contrasts in the legal architectures of the new systems, collected data and evaluation research for as many states as possible, and treated the reform-active states as “laboratories” whose experiments could be evaluated for the benefit of other jurisdictions. The essay examines the importance of this body of work and illustrates the impact it has had on research and policy communities over several decades. In addition, the essay suggests that “Tonry’s blueprint” holds great value for future researchers in comparative criminal justice policy.
Over the last 15 years imprisonment rates have declined in Europe on average by 15 percent and in the United States by 30 percent. Does this imply that, after decades long prison growth, we are facing a period of penal moderation? Since crime has also decreased, any assessments of a “moderate turn” are premature without considering how much of this decline is just a consequence of declining crime. This article begins to answer these questions first by examining previous attempts to measure the impact of crime on prison populations. To obtain a more precise view of the causal mechanisms, and to overcome some of the controversies in earlier research, a distinction between volume effects and policy effects is introduced. Empirical analyses are reported using two samples. The long-term sample from the 1960s onwards exemplifies the diversity of penal responses and differing prison trends during the times of increased crime in nine Western countries. Comparisons with 35 European countries from 2008 to 2024 show that prison populations followed declining crime quite closely. The answer to the initial question remains negative: There are ever more prisoners relative to recorded crime and convictions, suggesting a lower custody threshold than before. The number of admissions has declined, but the average length of prison terms has grown in almost all European countries. Despite the nominal decline of prison populations there is no indication that European penal policy is shifting toward leniency.
The legitimacy of state punishment has long been debated to justify the extreme form of government-authorized coercion that is criminal law. Rather than focusing on the abstract legitimacy of criminal law, this article examines another dimension of the debate: the legitimacy (or lack thereof) arising from the dynamics of substantive criminalization. Specifically, it addresses the “performance crises” of penality—enforcement-related failures in the implementation of the criminal law. The article identifies and discusses three distinct typologies of crisis in the deployment and enforcement of penal statutes: crises of hyper-intensity, crises of hyper-selectivity, and crises arising from sentence opacity, each undermining the legitimacy of criminal law in different ways. By addressing this gap in the theoretical literature, the article highlights the critical role of enforcement in shaping normative and policy discussions on substantive criminalization and its impact on the legitimacy of criminal law as a whole. From this perspective, penal legitimacy should be informed by the notion of “penal adequacy”, grounded—depending on the specific type of crisis—in moderation, non-discrimination, and transparency, and, across all cases, in sustainability. This concept highlights a balanced and fair exercise of the state’s penal power—one that is measured, non-discriminatory, clearly communicated, and, overall, capable of achieving its objectives in a sustainable manner.
This article examines how Michael Tonry’s views about proportionality of punishment evolved over time and influenced other sentencing scholars and reformers. The article elaborates and defends two versions of the theory of limiting retributivism, building on arguments Tonry and other writers have made. Tonry’s earliest writings about punishment proportionality adopted the limiting retributivism model previously proposed by Norval Morris. That model views desert assessments as inherently imprecise; thus, to be retributively proportionate penalties need only fall within a range of severity that would not be widely viewed as undeserved—either clearly too severe or clearly too lenient. In his later writings Tonry’s views shifted toward an asymmetric limiting retributive model. Under that model, upper retributive limits on maximum permissible sanction severity must be as firm and precise as we can make them, whereas lower limits are much more flexible—offenders must never be punished more severely than they deserve, but for a variety of reasons it is permissible to punish them less than they deserve. This article also calls attention to several important issues that have not been adequately addressed by advocates of either version of limiting retributivism, while also noting that many of these questions have likewise not been adequately addressed by proponents of a strongly retributive punishment model. The article further demonstrates how resolving these issues is easier under a well-designed sentencing guidelines regime—a sentencing structure strongly endorsed in Tonry’s writings.
Michael Tonry has made important contributions to research on sentencing, and especially to research examining racial and ethnic disparities in sentence outcomes. The purpose of this paper is to describe two of the many ways in which Tonry’s ground-breaking research and scholarship transformed the landscape of empirical sentencing research. His influential books and articles documenting why “sentencing matters” encouraged sentencing scholars to evaluate the effects of the sentencing “reforms” enacted during the War on Crime and the War on Drugs, with a focus on determining whether these changes to sentencing policies and practices reduced sentence disparities. Moreover, his critique of the War on Drugs and his argument that the war was being fought primarily in minority communities led to a substantial body of work on unwarranted disparities in sentencing for drug offenses. These are indeed significant contributions.
This study examines the spatial patterns of homicide in three 14th-century English cities—London, York, and Oxford—through the Medieval Murder Map project, which visualizes 355 homicide cases derived from coroners’ inquests. Integrating historical criminology with contemporary spatial crime theories, we outline a new historical criminology of space, focused on how urban environments shaped patterns of lethal violence in the past. Findings reveal similarities in all three cities. Homicides were highly concentrated in key nodes of urban life such as markets, squares, and thoroughfares. Temporal patterns indicate that most homicides occurred in the evening and on weekends, aligning with routine activity theory. Oxford had far higher homicide rates than London and York, and a higher proportion of organized group-violence, suggestive of high levels of social disorganization and impunity. Spatial analyses reveal distinct areas related to town-gown conflicts and violence fueled by student factionalism. In London, findings suggest distinct clusters of homicide which reflect differences in economic and social functions. In all three cities, some homicides were committed in spaces of high visibility and symbolic significance. The findings highlight how public space shaped urban violence historically. The study also raises broader questions about the long-term decline of homicide, suggesting that changes in urban governance and spatial organization may have played a crucial role in reducing lethal violence.
Michael Tonry has been the leading commentator on the American sentencing reform movement since its beginning. Sentencing Matters, one of the most influential works on American sentencing ever produced, was written at the crest of the sentencing guidelines movement. Now, some fifty years into that movement, American punishment policy finds itself at a standstill. This festschrift essay honor’s Tonry’s contributions to the sentencing reform literature, contemplates the reasons why the reform movement was not more successful in the United States, and reflects on how Tonry’s work continues to provide a framework for more sensible policy. The essay draws on the field of behavioral economics to underscore the need for decision tools like sentencing guidelines to help fulfill a more fair and just system of punishment. Yet as Tonry’s work has illustrated, the Aristotelian maxim of justice requires not only that like cases be treated alike, but that different cases be treated differently.
