Sanctions in Criminal and Civil Law Essay Example for Free

Sanctions in Criminal and Civil Law Essay Answer to Question 1 Sanctioning or Punishment is the act of imposing an unpleasant condition upon a subject in order to stop an undesirable behavior that he has displayed. The main rationale is that if people are harmed for their wrongful conduct, such wrongful conduct will no longer continue in the future.[1]   In law, there are two general types of sanctions – civil and criminal.   A civil penalty or sanction is one that is imposed upon a person who commits a wrong. Its purpose is to compensate the state or the injured person rather than to punish the act committed. (wikipedia, civil penalty). In simple terms, it would be to correct a wrong committed through the payment of damages or compensation.   Penalties can also be agreed upon as in the case of contracts. The parties to a contract can agree that each will pay a certain amount as damages in case a breach occurs. Although this is not a state-sanctioned penalty, this is allowed under the people’s general freedom to contract.   A criminal penalty is one that is imposed to punish a person for his wrongful conduct.   Forms of penalties Fines Persons are punished by making them pay money to the state. Confiscation The objects of the crime are confiscated in favor of the state or the offended party. For example, stolen goods are taken from the offender and returned to the original owner. Demotion In the military and in government offices, persons found to be guilty of offenses against the law may be demoted in rank or even dismissed from service. Loss of civil rights A person convicted of a crime may be stripped of certain rights like the right to vote or the right to run for office. Forced labor / Community service Persons convicted may, instead of serving time in prison, render community service without compensation. In some places, convicted persons are sent to labor camps to perform manual labor for the state. Imprisonment Persons convicted may be separated from society and sent to prison for a period of time. After serving time, he will be released and will then be allowed to rejoin society. Rehabilitation Persons convicted for certain crimes like drug abuse will be sent to specialized institutions for rehabilitation. Banishment In some countries, persons convicted of crimes may be banished or sent away from their localities. Retraining orders   Those convicted of violent crimes can be prohibited from further approaching their victims through a restraining order. Public humiliation For some crimes or undesirable behavior, persons may be punished by making their acts known to the public through publication or announcement. Corporal punishment In some countries, persons may be punished by flogging or whipping. The number of lashes will depend upon the severity of the offense. Capital punishment In many countries, people may be hanged, short, electrocuted or submitted for lethal injection for the most serious crimes.   Specific Reasons for Punishment [2] Deterrence Deterrence means dissuading someone from committing the same acts in the future. It is about sending a message to society that the cost of doing such an act outweighs the benefits and, therefore, it would not be worth doing. By punishing one who violates the law, other will become fearful of committing the same violation. Incapacitation By imprisoning offenders of the law, society is protected from them. For as long as they are placed in confined space and monitored closely, then the community will be safer. This is concerned with keeping violators of the law in control by separating them from the law-abiding members of society. Rehabilitation Some punishments are designed to change or rehabilitate the wrongdoer by making him understand that his behavior was wrong and that he must not commit the same offense again. It is about changing a person’s attitude and making it very clear to him that his actions were harmful to himself and to society and that they must never be repeated. This idea is based on the belief if any real change is to happen, violators of the law must be taught to take responsibility for their own actions and they must be given the chance to undo their mistakes and reform their ways. Restoration For minor offenses, the wrongdoer might be given a chance to â€Å"right the wrong† that he committed. For instance, if a person commits vandalism by spray-painting a wall, he might be punished by forcing him to clean up or repaint the wall. The purpose of this is to offset bad behavior with a corrective act. Retribution Some people continue to believe that the harm inflicted on the wrongdoer is a good in itself even if no person benefits from it in reality. This philosophy emerged from the very old belief of â€Å"an eye for an eye† – meaning that any person who commits a wrong must suffer the same wrong. This philosophy has long been abandoned by the greater part of civilized society. Protection of Values Punishment can be seen as an act of honoring the values of society. By punishing a murder, the state shows that it honors the value of human life. By punishing burglars, we protect the value of property. Current trends Today, experts in criminal justice and corrections are moving towards the idea of reformative or restorative justice[3]. It seeks to use peaceful approaches to rid communities of criminal activity. This theory does away with retribution and revenge. It emphasizes that such violence will only cause society to deteriorate. Communities must participate in the reformation of socially deviant persons by giving them opportunities at a better life. This approach focuses on reconciliation between the victims and the offender. It gives the offender a chance to turn a new leaf and correct the wrongs he has committed. Punishment includes the expression of remorse and restitution for the harm done.   Instead of allowing persons to languish in prison unproductively, theorists argue that those convicted of crimes must be given a chance to look forward to their reintegration into society. Without this hope for reintegration, they will have no incentive to reform their behavior or correct their mistakes. They must be treated with dignity and they must be allowed to work hard to regain society’s faith and trust in them.   There is no single form of restorative justice. Some legal systems give the offenders and the victims opportunities for reconciliation and restitution. Some systems allow offenders to render community service so that they can learn to be more responsible and productive rather than just serving idle time in prison. Some systems use professional counseling as a way to educate offenders and allow them a chance to express their own thoughts and feelings about their actions.   Although many restorative justice initiatives have been found to be very successful with adult offenders, most of the efforts today are focused mainly on juveniles in conflict with the law. Conclusion Different cultures and legal systems in the world continue to debate on the purpose of punishment. There is one thing, however, that is universally agreed upon: punishment is necessary for an orderly society.   For any legal system to work, people must be informed of what is right and what is wrong. Punishment makes these lessons clear because it gives teeth to any law that prohibits a certain action. Without punishment, people will do whatever they want with impunity and without any restraint. There is great interest in defining what the acceptable norms and behaviors are in society and these standards can not be preserved unless some form of punishment is imposed upon those who wish to oppose these standards. Social control is always necessary in any civilized society. People have to be kept in line by exercising their rights in the proper way without harming the rights of others. Without penalties, the laws can never be enforced. They will remain as empty statements of ideals without any real coercive value to back them up. If any society is to flourish, undesirable behavior must be punished and good behavior must be rewarded.   The important thing to keep in mind is that any punishment must always be proportional to the wrongful act it seeks to correct. If it is too light, then there is great risk that the behavior might continue. If it is too harsh, then there is blatant injustice and instead of setting a man right, it might destroy his spirit completely and instead of mending his ways and reintegrating into society, he runs the risk of deviating even further from acceptable social behavior.   It is also important that substantial and procedural due process is strictly complied with. A person must be proven and declared to be deserving of a sanction before it is meted out upon him. The person to be sanctioned must be heard and allowed to defend himself in court with all legal means in his disposal. Sanctions and punishments must always be an incident of justice and never against it. People need to know that they will be punished for wrongdoing but they must also be given the guarantee that any person who is accused of wrongdoing will be treated fairly. Just as society becomes more orderly with a fair and impartial justice system, only chaos will result from an arbitrary and oppressive one.   Answer to Question 2 Under The Employment Equality (Sex Discrimination) Regulations 2005[4], provides that that a person subjects a woman to harassment, including sexual harassment, if: â€Å"(a) on the ground of her sex, he engages in unwanted conduct that has the purpose or effect – (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, (b) he engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has the purpose or effect— (i) of violating her dignity, or (ii) of creating an intimidating, hostile, degrading, humiliating or offensive environment for her, or (c) on the ground of her rejection of or submission to unwanted conduct of a kind mentioned in paragraph (a) or (b), he treats her less favourably than he would treat her had she not rejected, or submitted to, the conduct.† It is clear that the offensive remarks and the acts of placing offensive pictures on Nicola’s desk by her male colleagues constitute sexual harassment. Although the act of asking her out to dinner is not, in itself, an act of sexual harassment, when coupled with all these other acts, it may be considered part of the whole group of offensive acts committed against her. Considering that Nicola has already approached her employer who is obliged by law to act on her complaint, it is her right to take the matter to the appropriate government agency. I advise Nicola to make notes on when these instances occurred, who were involved and what happened exactly. She must get her facts straight. She must also get a written copy of the results from the investigation. As to the acts antecedent to the investigation, Nicola must keep copies of the inappropriate emails and organize them according to their date. It would be most wise for her to seek help from her union with regard to advise and representation[5]. With the information in hand, she may now take her complaint to an employment tribunal. It must be noted that Nicola must file her complaint with the tribunal within three months from the time her employer concluded his investigation or from the last instance of harassment[6]. If she is later unsatisfied with the decision of the tribunal, then she can choose to appeal to an employment appeal tribunal. The present law against sexual discrimination will only be effective if the victims themselves assert their own rights. First, they must not be afraid to approach their harassers and tell them that the acts committed are unacceptable. The must not take these acts â€Å"sitting down† but rather, they must send a clear message that this kind of behavior will not be tolerated. Second, the victims must keep in mind that it is the legal duty of their employers to act on any sexual harassment complaints. The victims must approach the employers first and make a complaint to them. If it becomes clear that the employer is unwilling or unable to act upon the matter, then the victim must bring the complaint to the employment tribunal within the appropriate period. Third, sexual harassment is a serious concern of employment or labor unions. Victims must be able to approach their unions for assistance. Unions must be able to protect their members especially from serious offenses like sexual harassment. [1] Punishment, at http://en.wikipedia.org/wiki/Punishment (last accessed July 30, 2006). [2] Specific reasons for punishment, at http://en.wikipedia.org/wiki/Punishment (last accessed July 30, 2006). [3] Restorative Justice, at http://en.wikipedia.org/wiki/Restorative_justice (last accessed July 30, 2006). [4] Statutory Instrument 2005 No. 2467, The Employment Equality (Sex Discrimination) Regulations 2005. [5] Sexual harassment: new law in force in UK, at http://www.out-law.com/page-6187 (last accessed July 30, 2006). [6] Sexual harassment, at http://www.bbc.co.uk/crime/law/sexualharassment.shtml (last accessed July 30, 2006).