Papers by charnelle van der Bijl
Obiter, 2014
The DSM-5 Diagnostic and Statistical Manual of Mental Disorders was published in 2013. This manua... more The DSM-5 Diagnostic and Statistical Manual of Mental Disorders was published in 2013. This manual replaced and significantly revised the former DSM IV-TR, as it abolishes the Multi-Axial system that distinguished between personality and otherdisorders, which system had an impact on the disorders that were considered legally significant from those that were not. Owing to its recent publication, the DSM-5 Diagnostic and Statistical Manual of Mental Disorders, was not judicially considered in a criminal-law context. This article examines the role that personality disorders in the DSM-5 will play on the possible future of Criminal Law jurisprudential literature. Personality disorders are examined in the context of their classification, the definition of mental illness and pathological criminal incapacity. Possible solutions are suggested on how these mental disorders may be accommodated in the Criminal Law context.
Obiter
This note, however, does not focus on the role of parental alienation syndrome in the law, but av... more This note, however, does not focus on the role of parental alienation syndrome in the law, but avoids the controversy concerning PAS as a syndrome by concentrating on parental alienation conduct instead. The purpose is, therefore, to examine such behaviour in the context of domestic violence and harassment, which are subject to legal sanction and legal consequences. Although this behaviour may also amount to a specific crime, such as crimen iniuria, defeating or obstructing the course of justice, or defamation, that forms a separate discourse and is not addressed here. The first part of this note examines parental alienation as a form of psychological violence and abuse. As a wealth of literature already exists in the UnitedStates, this phenomenon is examined in the context of family law and tort law (law of delict) in the USA. Finally, this note provides an alternate hypothesis whereby parental alienation conduct is explored under the legal framework of domestic violence and harass...
Potchefstroom Electronic Law Journal
This contribution examines parental criminal responsibility for the delinquent acts of their chil... more This contribution examines parental criminal responsibility for the delinquent acts of their children. As South African law has been swayed by legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this issue has been addressed legislatively in both civil tort law and criminal law. The reasoning behind the implementation of specific legislation in the United States is that the common law principles are rooted on the principles of individualisation, which does not specifically cater for parental liability. Parental responsibility laws have been challenged constitutionally over the years in the United States. Critics are of the view that such laws interfere with the rights of parents to raise their children and are a form of cruel punishment. Additional criticism raised is that parental responsibility laws impose strict liability on parents. Furthermore, some misgivings have been shed that many parents face cha...
... 19 See Rumney & Morgan-Taylor 1997 Anglo-American Law Review 202 ... 29 An interview ... more ... 19 See Rumney & Morgan-Taylor 1997 Anglo-American Law Review 202 ... 29 An interview was conducted between the present author and Professor Robin Emsley (MbChB, M Med, FCPscyh, MD) who is the Head of the Department of Psychiatry at the University of Stellenbosch ...
This article examines the new statutory definition of rape as a materiallydefined crime. It is hy... more This article examines the new statutory definition of rape as a materiallydefined crime. It is hypothesised whether the phrase, 'any act which causes sexual penetration' in the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, could be broad enough to include omissions. The normative foundations of rape will be explored and the legal interests protected by a definition of rape will be identified. The terms 'conduct' and 'condition', which are central to a materially-defined definition, will be examined in juxtaposition to the phrase, 'any act which causes sexual penetration' to establish whether the deliberate infection of another with a life-threatening illness during consensual intercourse, or a failure to report specific cases of rape in prison, could possibly be considered to be forms of conduct which cause the condition of sexual penetration proscribed by the definition of rape.
New Criminal Law Review, 2010
This article examines the nature of social attitudes toward adult rape in South Africa and the wa... more This article examines the nature of social attitudes toward adult rape in South Africa and the ways in which they may influence the response of criminal justice professionals to cases of rape. Tis article draws on a small study of law students who completed a questionnaire that sought to examine specific beliefs regarding rape victims and their behavior during and following rape. Te questionnaire examines issues that do not appear to have been explored within attitude surveys thus far in South Africa. Te findings from this survey, along with the wider research literature on attitudes toward rape, suggest that rape myths and stereotypes are widespread in South African society and that they are also shared by some criminal justice professionals. Te article also notes some encouraging trends in South Africa. In particular, the judiciary has shown clear disapproval of the institutional failure to protect victims of rape and sexual assault. Te judiciary has also explicitly rejected myths...
... 19 See Rumney & Morgan-Taylor 1997 Anglo-American Law Review 202 ... 29 An interview ... more ... 19 See Rumney & Morgan-Taylor 1997 Anglo-American Law Review 202 ... 29 An interview was conducted between the present author and Professor Robin Emsley (MbChB, M Med, FCPscyh, MD) who is the Head of the Department of Psychiatry at the University of Stellenbosch ...
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Papers by charnelle van der Bijl