This article addresses a relatively recent problem: the impairment of consent in cases of sexual assault in the context of alcohol consumption. Specifically, it analyzes cases in which the victim, after having voluntarily consumed alcoholic beverages beforehand, experiences a compromised capacity to freely consent to a sexual act. The study aims to determine whether consent can be considered free, conscious, and voluntary in the context of sexual relations when the person giving it is under the influence of alcohol, even if its consumption was voluntary. Furthermore, based on the premise that consent is a gradable category, three typologies of cases are identified that reflect different levels of impairment of consent in this context. Finally, it argues that anyone who engages in sexual relations with a person under the influence of alcohol should be aware of certain indicators that would reveal whether their decision-making capacity is impaired to such a degree as to invalidate their consent, which could imply the risk of incurring criminal liability for the crime of sexual assault.
This article examines how the securitization of migration in Latin America-and particularly in Chile-reconfigures migration as a matter of public order, generating formal, material, and substantive barriers to migrant women's access to justice and producing forms of institutional violence. In view of a fragmented literature on the scope of the right of access to justice and the absence of a systematic treatment of securitization with a gendered and intersectional focus, the study aims to demonstrate that this paradigm structurally undermines that right and that the Inter-American Human Rights System (IAHRS) offers sufficient normative and jurisprudential tools to counter it. Methodologically, it develops a qualitative analysis of doctrine, norms and Inter-American jurisprudence, with a case study of the Chilean regime (Law 21,325 and its regulation), incorporating an intersectional approach and an intercultural lens. The results show: a) that securitization replaces judicial review with expedited, standardized administrative procedures, eroding due process; b) that linguistic, economic and cultural barriers, together with fear of migratory consequences, inhibit reporting and litigation; c) that Chilean judicial practice is case-specific and asymmetrical in the application of conventionality control; and d) that the IAHRS sets operational standards-effective judicial protection, equality and non-discrimination, reinforced due diligence and normative adaptation- capable of reinstating limits on the State's punitive power. It concludes that guaranteeing access to justice requires strengthening effective judicial review of detentions and expulsions, ensuring counsel and interpreters from the first procedural act, separating protection and enforcement channels, enshrining alternatives to detention in law and integrating intersectional analysis matrices into the reasoning of decisions. The principal contribution lies in articulating an operational framework to align migration policies with Inter-American standards, offering theoretical-practical inputs for administrative and judicial decision-making, and also for future agendas for empirical research.
The purpose of this article is to analyze what is at stake when debating "the private" and "the public" in civil litigation. It does so by presenting, for an English-speaking audience, the Wach/Klein debate, which took place in Europe between the nineteenth and twentieth centuries and centers on the so-called "social function" (Sozialfunktion) of adjudication, and briefly comparing it with contemporary discussions, especially in the U.S. Indeed, surprisingly, that debate has received minimal attention in the common law academic community. Nonetheless this article argues for, and seeks to show, the common ground of the political and theoretical issues raised. The article is divided into two parts. The first part (paras. 1-4) establishes the theoretical coordinates, referring especially to current U.S. discussions. The second part (paras. 5-9) delves into the historical contrast between the procedural philosophy advanced by A. Wach, that is procedural liberalism, and F. Klein's advocacy of the "social function" of civil legal processes, linking these ideologies to those outlined in the first part. Overall, this contribution seeks to trace an arc across two distant legal traditions and epochs, uncovering some unexpected parallelisms between past and current civil procedural scholars, and connecting historical considerations with modern discourses on civil justice policies.
This article examines the institutional design of regulatory compliance under the Chilean Consumer Protection Act (Act No. 19,496) through the theoretical framework of responsive regulation. Based on the model developed by Ayres and Braithwaite, it systematizes the public, private and hybrid enforcement mechanisms established in Chilean consumer law and assesses their capacity to operate within a pyramidal, flexible and strategically adaptable compliance scheme. The research pursues four objectives: to synthesize the core tenets of responsive regulation and its reception in Chile, to classify the enforcement instruments contained in the Act No. 19,496, to examine their degree of responsiveness according to six structural parameters and to propose reforms aimed at strengthening the compliance model in the field of consumer protection. The central hypothesis maintains that the Chilean regime is only partially responsive. Although the Act No. 19,496 provides for a significant range of enforcement tools-including judicial actions, voluntary collective procedures, compliance programs, alternative dispute resolution mechanisms, and actions brought by consumer associations and individual consumers-, its institutional architecture exhibits notable weaknesses. These include the absence of incapacitating sanctions, the limited deterrent effect of fines, the insufficient institutionalization of corrective mechanisms, and the lack of clear criteria guiding the exercise of administrative discretion. Using a descriptive and evaluative methodology, the study concludes that, despite the presence of relevant response characteristics, the current design prevents the full consolidation of a truly responsive compliance paradigm in Chilean consumer legislation.
This article examines the legal foundations of civil liability for omissions, within the framework of duties of care owed to older persons, with the aim of delineating the conditions under which inaction may constitute legally imputable conduct under article 2314 of the Chilean Civil Code. The central hypothesis advanced is that an omission gives rise to liability when the agent is bound to the victim by a special relationship that justifies the imposition of a positive duty to act, as is the case in contexts of family relationships, cohabitation or institutional protection. In such circumstances, the failure to act frustrates a legally relevant expectation of care, precludes the application of the principle of reliance and is normatively integrated as a form of unlawful conduct, a characterization that is particularly significant in relation to older persons in situations of dependency or vulnerability. The analysis is developed from a relational conception of the duty of care and makes auxiliary and circumscribed use of certain categories elaborated in criminal law doctrine-such as the position of guarantor-as tools for systematizing the duty to act in the civil law context, without implying a wholesale transposition of their underlying premises. It further advances the notion of an expectation of protection as the relational foundation of liability for omissions, and substantiates the functional equivalence between acts and omissions in contexts involving the care of older persons.
