Jena, Univ., Diss., 2004

Thesis (M.A.)--Baylor University, 2006. / Includes bibliographical references (p. 134-138).

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Texte remanié de: Th. / Bibliogr. p. 330-370.

Diss.--Durham (GB)--University, 1994. / Bibliogr. p. 293-318. Index.

This thesis focuses on the privacy interests of those subject to a criminal process. The thesis investigates the extent to which the privacy interests of those subject to such a process are recognised and afforded adequate protection in England and Wales. Over the last thirty years policing has become increasingly proactive and preventive. Advances in technology have given rise to new policing strategies, which emphasise the need to manage ‘risky’ groups and individuals through the collection and retention of disparate pieces of personal information. Whilst there is a significant body of criminological literature documenting this trend, and raising the possibility that these developments could pose a threat to the privacy interests of those subject to such preventive policing measures, criminological theorising alone cannot provide a defensible normative model for assessing the impact of such developments. Moreover, criminal procedure scholarship tends to focus on human rights insofar as they regulate adjudicatory policing measures geared towards the prosecution of suspected offenders. This procedural scholarship does not focus centrally on the wider functions of the police in maintaining order and protecting the public by gathering intelligence on ‘risky’ individuals and groups. This thesis aims to fill this gap in the literature through an assessment of how such policing activities set back privacy related rights. An interdisciplinary method is used, which draws on philosophical literature, European and domestic human rights and criminal procedure jurisprudence, and relevant policing and criminal justice scholarship. The first broad task for the thesis is to develop a normatively defensible model which can identify where privacy interests are set back as part of a criminal process, and articulate why it is important for those tasked with regulating such a process to recognise and appropriately protect these interests. This normative model is then used to assess English law’s response in different contexts to the police use of privacy interfering measures against those subject to the criminal process. It is noted that the European Court of Human Right’s Article 8 jurisprudence has (generally speaking) had a positive impact on English law in this area, but concerns are raised that domestic lawmakers consistently fail to strike a fair balance between the privacy interests of those subject to a criminal process and the legitimate crime prevention goals of the police.

2013 marked ten years since the Sexual Offences Act 2003 was passed. That Act made significant changes to the law of rape which appear now to have made very little difference to either prosecution or conviction rates. This thesis argues that the Act has failed against its own measures because it remains enmeshed within a conceptual framework of sexual indifference in which woman continues to be constructed as man’s (defective) other. This construction both constricts the frame in which women’s sexuality can be thought and distorts the harm of rape for women. It also continues woman’s historic alienation from her own nature and denies her entitlement to a becoming in line with her own sexuate identity. It effaces woman’s specificity leaving her suspended in an ahistorical space in which the unique and gendered meaning of rape for women is also erased. This thesis argues that the law is complicit in its own failure because it is structurally invested, for its own survival and coherence, in the exclusion and erasure of woman’s voice, which represents the possibility of a plural form of being and thinking and is thus a fundamental challenge to the legitimacy of law. Using Luce Irigaray’s critical and constructive frameworks, the thesis seeks to imagine how law might ‘cognise’ sexual difference and thus take the preliminary steps to a juridical environment in which women can more adequately understand and articulate the harm of rape. It argues that the prevention of rape is not just about prohibitive laws that fix the iteration of the sex act and of sexed bodies. It first requires an ethics of subject-subject relations and the recognition of two distinct and different subjects. Only then can we hope to generate a minor jurisprudence capable of providing justice owed to women who are raped.

Thesis (Ph.D.)--Boston University