Criminal Justice

Answer two of the following. Each of your answers should be no longer than
(PAGE and HALF).

They are double-spaced typewritten and turned in through safe-assign May 5 at 11:59 p.m.

Good grammar and clear writing are essential. Make sure that each sentence is clear and grammatical. Make sure that each paragraph has one main point and explains that point clearly. Make sure your answers are logically structured. You need to justify your ideas, and you need to provide the strongest arguments you can when asked to make arguments. Make sure that you do not plagiarize any work in your exam—you will be marked down or fail if you do so.

A satisfactory paper (C grade) needs to demonstrate a basic understanding of the central ideas of the philosophers and legal cases under discussion and to have a coherent stance towards those ideas. A good paper (B grade) needs to have a strong command of the central ideas of the philosophers and legal cases under discussion and to have a plausible argument about the strength of the arguments under consideration. An excellent paper (A grade) needs to have a strong command of both the central ideas and the peripheral arguments of the philosophers and legal cases under discussion and also needs to have a convincing argument about the arguments under consideration. The following criteria will be used to grade your paper:

clarity — avoid wasted words and impassioned rhetoric;

organization — make sure you follow an outline;

the cogency of argument and general persuasiveness — give reasons for your own views; and

Originality.

1- Mens Rea and Rape.
What is Doug Husak’s argument about the mistake defense in rape, what for him makes a mistake of fact defense reasonable? What would he say about the use of reasonable mistakes in two of the three following decisions: Morgan, Rusk, and Sherry gave his arguments about men’s rea and reasonable mistake? What does McGregor say about Husak’s view of consent?

2- Punishment.
Explain the differences between the deterrence theory and retributive theory of punishment and how Rawls in “Two Concepts of Rules” tries to reconcile the two approaches. Consider two of the following punishment cases, Tison v. Arizona, Furman v. Georgia, Gregg v. Georgia, Herrera v. Texas, do they fit into one or another of those theoretical frameworks i.e. deterrence theory or retributivism? If so, why, if not, why not?

3- Property.
How, according to Lori Andrews, has the law looked at the human body? Give some examples and explain the Moore decision and what Andrews says about it. How would John Locke and David Hume given their theories of property argue about property in your own body?

ANSWER

Opinions on Rape and Property Rights

Men’s Rea can be described as the mental element of a person’s intention of committing a crime contrary to the accused’s action or conduct. Various scientists and philosophers have given their opinions on cases that have involved the subject topic. Property rights, on the other hand, is the right to own an object or an invention. Many cases have been taken to court on issues with property rights and patents. This article discusses various opinions from scientists and philosophers on the herein mentioned topics.

Men’s Rea and Rape

Doug Husak gives his opinion on this topic by first questioning the possibility of a man making a mistake of fact concerning a woman’s consent to indulge in sexual intercourse. He acknowledges the occurrence of facts in various circumstances and highlights two characteristics that distinguish sexual intercourse from such cases. First, Husak highlights a woman’s capability to create time and opportunity to make known her sexual desires. Second, he argues that sexual intercourse is an event in which an individual has minimal chances of holding a casual opinion. Husak further denotes that the possibility of a man making a mistake on whether his companion desires to go for a dinner or movie is high compared to him making a mistake on whether his companion desires to indulge in sexual intercourse (Greasley 2020).

He denotes that the only way a mistake of fact defense reasonable is when the jurisdiction permits the rape defendants to defend themselves because they believe the victim granted permission by giving in to the intercourse. Husak further highlights that mistakes of factor or rape should be allowed when they are reasonable. Furthermore, he says that the law should apply methodology reasonableness concerning a belief in consent that assumes the criteria by which women express their permissions to sexual desires in the real world. He highlights that individuals behaving the same way they do when in consent for sex does not mean they want to indulge in sexual intercourse since some might not have consented to the act. Still, at the same time, someone else might take the behavior as a go-head to sexual intercourse, thus agreeing. The one who takes action as the right to consent lacks the men’s rea hence committing rape but cannot be termed, rapists.

About Morgan’s case decision, Doug would term the act as rape and the participants as rapists because the victim did not show any consent-related behavior to intercourse. Instead, the victim was dragged off from bed, against her will by three unknown men and raped in turns by the defendants. In Sherry’s case, Husak would disagree with her argument that anything but explicit consent is no consent since she overlooks the men’s rea fact of mistake of fact. McGregor seems to differ with Husak’s opinion since the latter argues that the use of force or failure to secure a meaningful consent to indulge in sexual intercourse renders the defendant a criminal (Hong 2018).

Property

Lori Andrews argues that human beings are individual properties and that bodily ownership is the essential ownership within our knowledge, contrary to the law’s opinion, which differs that human tissues can be trash, research materials in a library and abandoned property which can be disposed of after use circumstantially. Andrews further questions the ownership of tissues donated by patients for research purposes, raising legal and ethical questions on human patent rights by research institutions and companies. She says one needs the trust of a potential donor to convince them to surrender their tissues and organs for research purposes, narrating that the Biotech industry’s unfinished products are parts of human bodies. She finalizes by highlighting that decisions made in likelihood to obscure patent laws have life and death implications to everyone (Wilson 2016).

For instance, brain tissue of the deceased children in Chicago, Moore’s body tissues, and Angelina Jolie’s breast cancer are some of the human body tissue cases presented in court. In a case study of Moore, a patient with hairy cell leukemia discovered his doctors used his body tissues for financial gains without his knowledge; Andrews denotes that his doctors ought to inform him before commercializing his body tissues. As much as the court supports the ideology, it still denied the victim the right to sue his doctors for theft implications. Patents on human genes have led to monopoly instead of encouraging scientists’ innovations, thereby deterring many people from engaging in medical research.

John Locke bases his definition of property ownership on biblical inferences. He says that every man is entitled to property as part of natural rights, including self-ownership. Labor done by my own body and physical work by my hands would grant me property rights over the product. Hume, on the other hand, focuses on the movable property sighting of being stolen, thus interfering with the ownership rights. Contrary to Locke, Hume denotes that private property is acquired by luck, thereby indicating that the human body ownership accidental, thereby differing from the latter hence making my rights of body ownership debatable and not something earned naturally (Klein & Matson 2018).

References

Greasley, K. (2020). Sex, Reasons, Pro Tanto Wronging, and the Structure of Rape Liability. Criminal Law and Philosophy, 1-21.

Hong, K. (2018). A New Mens Rea for Rape: More Convictions and Less Punishment. Am. Crim. L. Rev., 55, 259.

Klein, D. B., & Matson, E. (2018). Mere-Liberty in David Hume. Forthcoming, A Companion to David Hume (Universidad Francisco Marroquin), 18-14.

McGregor, J. (2017). Is it rape?: on acquaintance rape and taking women’s consent seriously. Taylor and Francis.

Pennance-Acevedo, G. M. (2017). St. Thomas Aquinas and John Locke on natural law. Studia Gilsoniana, 6(2), 221-248.

Wilson, D. (2016). A troubled past? Reassessing ethics in the history of tissue culture. Health Care Analysis, 24(3), 246-259.