Corporate culpability in Law and Horror

A/Prof. Penny Crofts1
1UTS, Broadway, Australia

Classic legal accounts of corporate liability such as vicarious principles and identification theory reflect a nominalist theory of corporations, viewing corporations as nothing more than a collectivity of individuals, that is, that corporations can only act through individuals. These accounts regard corporate responsibility as derivative – it must be located through the responsibility of an individual actor. In contrast, realist theories assert that corporations have an existence that is, to some extent, independent of the existence of their members. Corporations can act and be at fault in ways that are different from the ways in which their members can act and be at fault. This paper will focus on the portrayal of corporate culpability in the television series Stranger Things (Netflix 2016) and film Ghost in the Shell (Dreamworks; Sanders, 2017) in terms of whether their portrayals of corporations are nominalist and/or realist as a way to critique and analyse contemporary legal responses to organisational culpability. How does the organisation cause/respond to harms? Does malfeasance and culpability end with the death of the CEO? Do criminal legal constructions of culpability assist or prevent encountering crime and doing justice?


Biography:

Penny Crofts is an Associate Professor at the Faculty of Law, UTS. She specialises in researching legal constructions of culpability and has published widely in the area. Her research is cross-disciplinary, drawing upon a range of historical, philosophical, empirical and literary materials to enrich her analysis of the law. Penny appeared as an expert witness on criminal liability before the Royal Commission into Institutional Responses to Child Sexual Abuse. Penny recently received an ARC grant ‘Rethinking institutional culpability: criminal law, philosophy and horror’. This project interrogates the organisational culpability (or lack thereof) through the prisms of law, horror and philosophy.

A Woman’s Right to Be Spanked? BDSM and IPV in the CJS

Nadia David1
1Charles Sturt University, Beechworth, Australia

Feminism has played an integral and life-saving role in the development and implementation of contemporary legislation and changing law enforcement approaches to domestic and family violence. There is no doubt that, without significant, lasting pressure from feminist activists, the pro-arrest/pro-prosecution policies of Australian police would not exist. And courts would not be gaoling abusive men.

But, has the focus on intimate partner violence driven bondage, discipline and sadomasochistic (BDSM) relationships into a legal no-man’s land? What of a woman’s right to be spanked? A woman’s enthusiastic consent to BDSM in a heterosexual relationship has proven both irrelevant and pivotal in court, leaving a problematic ambiguity around consensual BDSM.

A lack of fluency in the well-established rules of a ‘real’ BDSM relationship or encounter is creating uncertainty in the criminal justice system. When an accused insists that the injuries occasioned to the victim were consensually inflicted, how can the judge or prosecutor or police officer know if that’s true?

This paper presents the argument that the ‘Sex Wars’ of the 1980s are still on and causing uncertainty in the CJS around consensual BDSM vs abusive sexual violence. Further, having adopted the radical feminist view that BDSM is truly misogynistic at its core, courts are not using an underlying theory or evidence-base for decisions regarding the authenticity of alleged consent. This paper suggests the development of a ‘toolkit’ identifying the indicia of a ‘real’ BDSM relationship so that CJS professionals can separate BDSM from abuse.


Biography
Nadia is originally from Tasmania and grew up in Launceston. After finishing a Bachelor’s degree in Philosophy she joined the New South Wales Police Force and was duly sent to Redfern. During her 6-year career in the police, Nadia completed her Master of Criminology while working as a Police Prosecutor, specializing in family violence. She went on to complete a Juris Doctor while working in the Australian Public Service. Nadia now lives in beautiful Beechworth, Victoria, with her husband and two kids on their horse stud. She is currently undertaking a fulltime PhD at Charles Sturt University.

Juror perceptions of witness inattentional blindness during criminal trials

H Cullen1, H Paterson1,2, C Van Golde1,2
1The University Of Sydney, Sydney, Australia, 2Sydney Institute of Criminology, Sydney, Australia

The testimony of witnesses can be pivotal in ensuring just outcomes during criminal trials. However, eyewitnesses and police officers may experience “inattentional blindness”, whereby they fail to notice crimes occurring due to their attention being focused on something else. Inattentional blindness is poorly understood by members of the general public, and this may affect how jurors perceive witnesses who testify that they experienced inattentional blindness for a crime. In the current study, 353 participants read a fictitious criminal trial transcript with two key witnesses: one who saw the crime in question, and another who experienced inattentional blindness for the crime, and therefore did not see it occur. Trial transcripts also varied according to whether the witnesses were described as civilian bystanders or police officers, whether the witness who experienced inattentional blindness knew the perpetrator or not, and whether an expert provided testimony on inattentional blindness or not. Participants were then asked to rate the credibility, accuracy, and honesty of each witness. The findings showed that the witness who experienced inattentional blindness for the crime was perceived as less credible, accurate, and honest than the witness who saw the crime. Additionally, jurors perceived the witness who experienced inattentional blindness as less credible if they knew the perpetrator, and expert testimony did not improve these perceptions. These findings suggest that inattentional blindness may negatively affect juror perceptions of witnesses, highlighting the need for future research that addresses the misconceptions around inattentional blindness to ensure justice in criminal trials.


Biography
Hayley is a second year PhD student within the forensic psychology lab at the University of Sydney. Her research explores the role of inattention and memory in both eyewitnesses and police officers, and how jurors perceive this during criminal trials.

 

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