Legislative support of criminological impact on negative factors of family relations in Ukraine

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University of the State Fiscal Service of Ukraine

Legislative support of criminological impact on negative factors of family relations in Ukraine

G.V. Didkivska,

candidate of juridical sciences

This article is related to the new branch of the family criminology such as child abuse. Violence against minor and other family members is a necessary condition of criminal responsibility. The criminological legislative branch of criminal impact on negative factors of family relations is also needed to be developed.

The legislative support of criminal impact on family relations develops as a part of the common law of Criminology. It is included to the housing, family and other laws.

Keywords: criminology, family relations, crime.

The main issue of this article is a research of necessity in developing special criminological legislative branch. Using foreign and domestic experiences allows us to answer next questions:

1) Family courts (family courts that have slightly different functions then in Ukraine, e.g. Austria, Poland, USA, Japan), that consider criminal cases of internal family crimes, all crimes of minors, as well as all related to family relations civil cases;

2) Sspecial types of exemption from criminal liability and probation with a condition of passage paid by convicted course of psychotherapy;

3) Taking Austrians family courts as an example, to predict the intermediaries usage to resolve conflicts between family members that is used as an alternative of criminal responsibility;

4) Establishing an administrative penalty of a fine, arrest and re-applied in the case of family violence within the family violence and causing light damage to health;

5) Improving the state system of crime statistics through the inclusion of the index of family connection between the person who committed the crime, and victims;

6) To record statistic of the criminogenic parent families as well as internally crime family. [1]

The legislation and legal practice of some foreign countries solve related issues to the withdrawal of the right to inviolability of the home and freedom of movement. As well as, issuing of temporary orders by the courts, which may include a ban on the entry of a dwelling in which living family members are exposed to violence. Also including children and, as in Netherlands, the appearance of nearby homes (the so-called street's ban) [1]. The issues of family violence deserve special attention in criminal law.

Due to the internal problems of family crimes the international criminal law has the following factors:

1) the nomination of personal integrity as a new object of criminal protection;

2) inclusion of specific offenses together with the crimes committed against the family environment in the criminal law;

3) expanding the notion of psychological violence, which entails criminal liability;

4) the desire to replace a provision of criminal law-crime of internal family problem with the issue of violence against women;

5) the offers to strengthen accountability for crimes committed in the circumstances typical for domestic violence;

6) exemption from conviction, combined with solving of family conflict;

7) conditional non-application of penalties associated with a course of psychological adjustment;

8) parole the convict from punishment of imprisonment considering them successfully passed the previous course of psychological adaptation.

In the studies of family crimes occurs assertion that in the last decade of XX century in connection with this problem in criminal law appears new object of legal protection: person's immunity (“integrity”). The Criminal Code of Sweden (Ch. 4, § 4a) formulated the offense on the basis of the object formulated offense, which focused on “serious violation of health (self) identity through hard violating its integrity”.

Regulation that a personal integrity generic object forms crimes that infringe on the individual has no objections. Personality should be inviolable, it must be protected, including by the means of criminal law. It is known that attack exposed to different sides of human existence, which act as direct crime objects, such as his/her dignity, sexual self-determination, freedom, health, life. That is led to the need for appropriate differentiation crimes law with allocation of murder, injury, unlawful imprisonment, rape and so on. Inviolability of the person behind these particular objects is a kind of abstraction. The use of abstraction in the definition of law of a crime as its direct object, perhaps unreasonable, as the duplication creates so-called ideal set of crimes in which the same act is regarded as the two offenses, among other things, causes difficulty in choosing the appropriate punishment [2].

Nowadays the criminal legislation includes special warehouses violent crimes committed against family environment, difficult personal integrity violations (Sweden); domestic violence (Spain); violence in the family (Germany); neglect of minors' education (Russia) and the murder of a new-born baby by mother. Some authors (Fitzpatrick, 1994) support the adoption of the UN Declaration, which defines the composition of such a crime.

According to the paragraph of 1 § 4a ch. 4 of the Criminal Code of Sweden is set: “Who will do to the close person or close before the former person offense under Chapter 3, 4 or 6, because every single act is part of a recurring images and personalities associated with severely impaired health because it severely impaired immunity, sentenced ranging from six months to six years in prison.”

Article 153 of the Spanish Penal Code provides: “Whoever usually commits physical or mental violence against anyone who is, or was her man, or against a person who lasted close to him emotionally connected way in or was bounded or against their own children or the children of her husband or children roommate or against the wards, descendants or incapacitated, who with him live or subordinate his authority, guardianship, care or actual care or adopted them into the house, were sentenced from six months to three years in prison ... “. Usual means the consumptioncommitted a number of violent acts that are only temporary in proximity, regardless of whether these actions in the past have been the subject of a sentence within a single process.

§ 225 German Criminal Code “Ward's abuse” contains the following crime: abusing, torturing or injuring by intentionally neglecting the duty to care about the person who is under eighteen years old or defenceless because of illness or helplessness, that 1) shall be under the care of the offender, 2) belongs to his home environment, 3) he is in charge of taking care of, 4) is subordinated according to his work or work relations, the punishment of which is a imprisonment penalty from six months to ten years.

These offences vary. For example, according to the Spanish and German law (simple, not qualified offence), there are no consequences. Swedish includes “the severe health violations of the victim through the violation of personal integrity.”

There are differences in international law and in the way circle of victims is outlined. According to the Criminal Code of Germany, they only included wards, as well as those assigned to the family (co-residents) persons under the age of 18 or who are defenceless because of physical disabilities or illness. For example, this offence does not cover some kinds of violence, in particular, violence against a man who is not under guardianship.

In all three codes, the domestic family crimes are described as repeated interdependent acts. The most important common feature of these compositions, perhaps, is that described violent acts are at the same time included in other crimes (causing varying degrees of injury, torture, etc.). The responsibility for these crimes is envisaged by the same codes, which makes special criminal liability for violence inside the family meaningful.

Violence against a minor is a necessary condition of criminal liability. This crime that is different from the mentioned above just the way it represented the victim may have the same critic. The responsibility for the violence has set the general rules on crimes against personal integrity, so there is no need to create special rules that protect children.

The world family criminology discusses the further criminalization of acts related to mental violence. This is interpreted more widely than threats of harm to those who suffer from bullying. The subject of discussion was the following acts, such as locking a child for a long time in the basement, where she undergoes the same fear. The Criminal Code of Spain, as noted above, provides mental violence, without giving it definition. Thus, the question of the responsibility in specific cases is left to the court, which is unjustified.

Apparently, the responsibility for psychological violence can still be provided for criminal law, but subject to two conditions. Firstly, the law must include general rule that criminal liability is causing injury to person referred to in the section on crimes against life and health (murder, injury, etc.), with effects on her mental state, and in certain cases create real risk of occurrence of such harm using the psychological impact on the individual (e.g. victims implementation of committing suicide or a substantial deviation in the development of a minor). Secondly, it is necessary to specify what actions the legislator refers to those involving criminal consequences of mental influence to include the number of them, as well as the injection of fear [2].

The motion for the adoption of laws about prevention of domestic violence in the United States and some other countries as well as the development of international instruments often shifted exceptionally towards violence against women. This issue is in the criminal law occurs when the wording of the crime of domestic violence, particularly in Spain, where it has been negatively resolved. Swedish legislator, after all, failed to completely avoid inclusion of such crimein the Criminal Code. According to the Criminal Code in the above-mentioned § 4a Ch. 4 of violations of personal integrity, the 2nd paragraph said that, if provided in the 1st paragraph actions are committed by a man against a woman, whom he married or has been married or with whom resides or resided, it is subject to severe violations of personal integrity condemned to the same punishment [2].

In sum, appropriate innovations of the world's criminal law of family internal crimes are those that mitigate the responsibility to resolve the conflict without a conviction of the perpetrator. Also were introduced probation and parole from punishment.

Thus, for the court hearing on the preliminary decision, the US law provides to send a person accused of a violent crime against a member of his family to pass on “special counselling program.” Such decision is taken on the basis of the bargain with the accused. The program is carried out on the basis of psychological methods of training course, that are held in groups consisting of 15-18 people for 4 to 12 months under the supervision of a specialist. The probation officer supervises the program. The program takes place at the expense of the accused on the basis of a flexible pricing scale that takes into account his financial situation. If the defendant successfully completed the program, the charge can be removed or mitigated; If he avoids passing the program, the procedure of his criminal prosecution is going to be resumed [3]. The combination of probation with the “treatment” individuals who commit violent acts, has the advantage that if probation is passing the observation when the therapeutic course is active control [3].

The advantage of American programs is that the mediator - a specialist in conflict resolution - is not the only one, but with both parties to the conflict, taking into account known truth: when two quarrels, both are wrong.

According to Ukrainian law, the person who first committed a minor offence may be released from criminal responsibility if a person reconciled with the victim and compensated the victim caused damages. This rule applies regarding domestic violence in fact only crimes such as intentional infliction of harm, assault, threats of murder or causing grievous bodily harm, causing severe or moderate injury by exceeding the limits of necessary defence. It appears that it applied to inner crime family based widely varied intimacy and relationships between members, argues, and could be extended, covering as torture and intentional infliction of moderate bodily harm. It would be appropriate to make additions to the Criminal Code of Ukraine.

The use of special psychological assistance for solving criminogenic family conflicts long ago was put in a Russian family criminology [4]. Western, particularly American experience of its practical application indicates that it is quite productive against violence renovation [4].

In the US, most of the court decisions on forwarding perpetrators of violent crime in the family are to take special preventive program instead of serving them actual punishment, so it is taken as a conviction. [4] E. Hondolf notes that the study of problems in family violent crime has had a significant impact on the justice system in the United States. It is based on research, that argues that the most effective means of preventing violence in families is not repressive measures (which include, for example, arrests) and appointed by the courts as an alternative to criminal punishment program training for persons who have committed violent acts. According to these programs, which are used extensively today, opens the prospect of “therapeutic” justice.

Programs psychological training used by family courts in the United States, were widely used in the 90s. An example is an Advisory centre on issues of domestic violence (Bass) of Pittsburgh. Special family court sends the perpetrators to undergo this program. The duration of it - fourmonths; classes are held once a week. These classes are taught how to confront their own violence and aggression. The attendance of the program is controlled by the court and in the case of refusal from the courses, it applies penalties. The government of Finances reported that the program demonstrates a significant increase in a number of people who have successfully completed the program, and reduction of the cases of renovation violence in the family [4].

Thus, according to Ukrainian legislation, the court imposing sentence probation may require the Probation perform certain duties listed in the law. It is also includes the implementation of financial support of the family, medical treatment for alcoholism, drug addiction or substance abuse. The court may order the probation to other duties that contribute to correct offender's behavior. The list of responsibilities is desirable to supplement the treatment with psychological assistance. This duty is imposed on convicted under terms of their consent.

Considering the above mentioned and guided research results, it can be said that the most effective means of preventing violence in families is not repressive measures (which include, for example, arrests). Perhaps, it would be better to determine punishment by the court as an alternative to criminal punishment program training for people who have committed violent acts. According to these programs, that are actively used abroad today, there is a prospect of “therapeutic” justice and significant improve family well-being.

criminologу child abuse

Literature

1. Violent behaviour within the family. Criminal aspect // Jurisprudence. 2001. N° 2 Art. 163 172.

2. Shestakov D. A. Family criminology. Related criminal law. The 2nd release. - St-P.: “Law Center Press Publish Company”, 2003.

3. Homych V M. “Forms of implementing the criminal liability”. - Minsk., 1998. - Р. 108.

4. Shestakov D. A. Family psychotherapy and the prevention of crime (to a question on group level criminological prevention) // Vesnik of Leningrad State University. 1989. Release 6. - Р. 56-61.

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