Derecho Penal y Criminología

Necessity Defense, Adequacy Clause and Needs Related to Social Exclusion

Marcelo D. Lerman — Wed, 19 Jun 2024 00:00:00 -0500

This paper addresses some problematic issues of an institute from the general part of the criminal law, the necessity defense (in its aggressive version), paying special attention to those cases that could arise from a situation of social exclusion. Thus, taking into consideration that legal systems usually regulate the way in which certain needs must be addressed through institutional ways and that this can lead to the exclusion of the necessity defense when such needs generate, the text analyzes the question of what happens when these institutional ways are not effective in solving the need in question.

Sexual Crimes and New Forms of Criminalization Stealthing: Sexual Consent Under Discussion

María Fernanda García — Wed, 19 Jun 2024 00:00:00 -0500

In recent years, the complaint made by certain sectors of civil society – particularly women’s movements and the LGBTIQ+ collective – has acquired greater visibility on the public agendas of the countries, regarding the need to review the logic under sexual relations occurs, as well as the place reserved for consent and personal autonomy, particularly for women. The wide diffusion of the aphorisms “No means no”, “Me Too”, “Only yes means yes. RESPECT”, “I believe you, sister” are a complete example.

In this work, sexual practices such as revenge porn, sextortion and stealthing will be reviewed, with particular emphasis on this last one, that breaks in this current scenario of demands and require rethinking the limits of the responses that the law has historically dispense for cases of sexual violence.

Femicide and Transfemicide in Colombian Criminal Law

María Camila Correa Flórez — Wed, 19 Jun 2024 00:00:00 -0500

This article seeks to analyze how femicide and trans femicide are punished in Colombian criminal legislation through article 104-A of the Colombian Criminal Code. To do so, an effort is firstly made to give content to the subjective elements contained in the criminal offence. By giving content to the subjective elements, not only is it possible to understand what the punishable conduct consists of, but also to differentiate between them and from other forms of gender-based violence. Finally, it explains the importance and the need to consider the general and specific contexts in which femicides and trans femicides tend to take place. This need underlies the contextual circumstances in article 104-A of the Colombian Criminal Code.

Critique of the Imprescriptibility of the Criminal Action in Sexual Offenses Against Minors in Colombia

Wed, 19 Jun 2024 00:00:00 -0500

The article intends to critically discuss the reasons that motivated the declaration of enforceability, by the Constitutional Court of Colombia, of the imprescriptibility of crimes against freedom, integrity and sexual formation, or the crime of incest, committed against minors. Such discussion will have, as criteria of analysis: (1) the general foundations of the figure of the statute of limitations of criminal action, (2) a characterization of punitive populism in Colombia regarding sexual offenses against minors, and (3) the mandates of the “constitutionality block”, as well.

Substantial Assistance in Peru

Isabel Tello — Wed, 19 Jun 2024 00:00:00 -0500

The author analyzes the substantial assistance, highlighting among its rules, the importance of the adequate use of the statement of the cooperator in investigations and criminal proceedings; and makes an analysis on the legal consequences that could gave rise to when not complying with the requirements of use; e. g. the violation of rights, guarantees and principles of constitutional rank. Additionally, she presents other relevant aspects of this legal concept, such as: the discretion of the proceeding and the need to corroborate the information provided by the criminal informant; as well as a brief comment on Bill 6623, which proposes to modify the regulation of this legal concept.

Crimmigration: Exploring the Challenges of the Increasing Utilisation of Migration Law Within the Criminal Justice System

José Ángel Brandariz — Wed, 19 Jun 2024 00:00:00 -0500

The fifth global conference on crimmigration studies was held in Portland, USA, in March 2024. The crimmigration thesis has gained momentum as a pivotal theory to explore the criminalisation of irregular mobility and more generally the increasing convergence of criminal law and migration law. This paper presents the main academic debates on crimmigration. In addition, it focuses on an aspect that has been underexplored by the international literature, namely the conflicting coexistence of migration control goals and crime control goals – both in statute and in practice. This conflict has led to different punitive models in different jurisdiction, which largely give priority to migration control interests rather than criminal justice interests.

Symbolic Interactionism and Critical Criminology: Analysis of Symbolic Interactionism as Antecedent of Labeling Theory

Nilson Dias de Assis Neto — Wed, 19 Jun 2024 00:00:00 -0500

We aim to analyze the influence of psychology on criminology, more specifically to verify the relationships between the psychological and sociological theory of symbolic interactionism and the critical criminology of labeling. In such a study, we verify that interactionism can be characterized as a true historical antecedent of the labeling theory, because it was from the conceptions of constructions and reconstructions of subjectivities between people in social psychology that the perception of the criminal norm was possible as part of a successful stigmatization process.

Private Financing of the Penitentiary System and Resocialization

Wed, 19 Jun 2024 00:00:00 -0500

The theme of the prison system in Brazil is marked by the overcrowding of prisons, which over time has shown alarming numbers. Faced with this problem, the objective of this work is to analyze whether the private financing of the penitentiary system is an alternative to, if not solve, at least minimize overcrowding and provide the rehabilitation of the detainee. Therefore, through the use of the deductive method, with the literature review on the subject in books, websites, scientific articles; it was found that with private financing, the prison population tends to reduce, either with internal work, with education and with instruments that provide better life expectancy. Such attitudes transform privatization into an alternative capable of resolving the problem of overcrowding and provide the rehabilitation of the convict.

The Moral and the Political in the Legitimacy of the Punishment of the Socially Excluded: The Discussion on five Problems

Javier Cigüela Sola — Wed, 19 Jun 2024 00:00:00 -0500

The article offers an overview of the discussion on the punishment of the socially excluded, arranging it around its two main axes – the moral and the political – and five of its most debated problems. At the same time, the hypothesis is put forward that penal theory, without being an instrument of social change, should not be abstracted from the fact that, to some extent, punishments in contemporary societies are imposed in conditions that differ from those imagined by the (political) theories of punishment; and that this distance should be the object of criticism, in the first place, and a source of legal consequences, in the second.

“Punitivismo, legítima defensa y seguridad ciudadana”

Hernán Darío Orozco López , Yesid Reyes Alvarado — Wed, 19 Jun 2024 00:00:00 -0500