“Yes? Do You Have Full Capacity and Freedom To Say So?”

Rape is an especially horrid and heinous crime and something must be done to curtail the number of rapes occurring throughout the globe. The UN estimates that, globally, “one in five women will be a victim of a rape or an attempted rape in their lifetime.” Specifically, in the United Kingdom, the most recent data on sexual assaults showed that 15,670 women reported being the victim of a rape, and that of the 2,910 cases that got to court, only 1,070 of those accused were convicted. While the problem has no easy fix, the United Kingdom has taken an interesting approach in an attempt to make the prosecution of alleged date rape suspects easier.

The Director of Public Prosecutions, Alison Saunders, has stated that it is time for law enforcement to move beyond the concept of “no means no” for situations where a woman may be unable to consent to sex. Ms. Saunders goes further, opining that a greater onus must be placed on the suspected attacker, who under her new guidance must be able to demonstrate how the accuser consented “with full capacity and freedom to do so.” A focus of the new guidance is to curtail sexual assaults arising from attacks where the complainant is intoxicated from drugs or alcohol. The end goal of the new guidance is to create an atmosphere where more rapists face punishment for their actions, creating a deterrent against future crimes.

While this new guidance from Ms. Saunders is undoubtedly made with the best intentions, it forces the accused to prove his or her own innocence. In other words, the new guidance forces the accused into a situation where he or she is presumed guilty until proven innocent. One could argue that the guidance creates a dangerous precedent, flying in the face of the long-standing presumption of innocence legal tradition. In the U.K., the presumption of innocence traces its roots back to the Magna Carta. The presumption of innocence stipulates that the accuser must prove that the accused committed the crime, rather than the accused being forced to prove his or her own innocence. In this sense, the guidance threatens to establish a dangerous precedent by discounting the presumption of innocence tradition.

In addition to the legal implications of the new guidance, it has faced criticism for criminalizing innocent men and infantilizing women. Situations may arise where the accused was also not in a state to remember the events of the night before, and, what happens then? The accused is seemingly facing sure conviction under the new guidelines. The new guidance would likely place more guilty rapists in prison, but how many questionably-guilty accused will have to bear the cross for this uptick in convictions? Only the future implementation of the guidance will be able to give us a definitive answer.

The global rape epidemic is real and something must be done to lower the number of crimes committed as well as lower the number of unsolved crimes. Is the new guidance in the U.K. the answer to the problem? Only time and implementation will tell, but for the time being, it threatens to set a dangerous precedent, a precedent that has the potential to make a mockery of one of the world’s longest standing legal traditions.

Ryan Mentzer is a 3L and a Student Work Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

Citations to articles & documents are included in the aforementioned underlined hyperlinks.



The International Megan’s Law and the Need for Reciprocation

On February 4, 2016, H.R. 515, International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes through Advanced Notification of Traveling Sex Offenders, was presented to President Barack Obama.[i] On February 8, President Obama signed the bill into law.[ii] The passage of the act establishes an International Megan’s Law that, among other things, requires covered sex offenders to have a “unique identifier” on their passports and provide detailed information regarding intended international travel which would then be reported to destination countries.[iii] While the law has stirred up discussion regarding its constitutionality, I want to take some time to consider whether the law can actually be effective, or if the goal would have been better achieved through the use of an international agreement among countries.

Prior to President Obama signing the bill, a lawyer from the California Reform Sex Offender Laws group had already spoken to reporters about bringing lawsuits challenging the law if it was signed into effect.[iv] The group filed the lawsuit immediately after President Obama signed the act.[v] Issues regarding the privacy concerns of requiring indicators on passports will need to work through the court system, and I do not intend to debate the legality of the new act; however, the importance of a need for reciprocation of reporting from other countries and a mechanism for the United States to be able to report to other countries draws concerns of effectiveness regardless of the constitutionality of certain provisions.

The International Megan’s Law would allow for an agency to report intended travel to a foreign country. The intention appears to be to warn foreign countries that the sex offender is traveling to the country in order for the country to either prevent the travel, at least be aware of the person’s presence for monitoring, or even simply for record keeping should any criminal issues arise. The text of the law specifically states that Congress believes there should be an effort to seek agreements with other countries to further the purpose of the act, including ways to receive notices from foreign countries and arranging reciprocal reporting.[vi] The hope that other countries will report similar information to the United States in order to allow us to prevent foreign sex offenders from traveling to the United States or internationally in general seems central to achieving the purpose of protecting people from sexual exploitation, including sex trafficking.[vii] However, without any uniform reporting mechanism or even uniform interpretation of what constitutes a criminal history that would lead to reporting, the International Megan’s Law seems to only lead us to restrict the travel and rights of our own criminals while not protecting us from international criminals.

If the law had been considered in an international setting, such as the United Nations, a uniform agreement and procedure may have been established in a manner that allowed other countries to provide input on the procedure, as opposed to discussions requiring consideration of laws and procedures now already in effect in the United States. In fact, in 2005 the United States ratified the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children.[viii] According to the purposes set forth in the International Megan’s Law, it seems appropriate to consider the purpose of the act to fall under the purpose of the UN Protocol. With that, an international discussion, especially one with other countries who ratified the UN Protocol could be central to the International Megan’s Law having the ability to achieve its purpose.

By signing the law into effect, an international discussion may be facilitated, especially with other countries that ratified the UN Protocol, and an agreement on how to implement a policy of reporting traveling information among foreign countries can be created to allow the now existing law to fulfill its purpose. Without agreements with foreign countries relating to reciprocity and the actual use of the information being reported by the United States, the new law will be fighting a battle in the courts regarding constitutionality, and spending large amounts of money in establishing reporting mechanisms in the United States, while possibly not being effective in its goal of protecting persons from sexual exploitation.


Sharon Mclaughlin is a 3L and an Articles Editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

[i] International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, 2015 Bill Tracking H.R. 515.

[ii] Jonathan D. Salant, Obama Signs International Megan’s Law, New Jersey (Feb. 8, 2016), http://www.nj.com/politics/index.ssf/2016/02/obama_signs_international_megans_law.html

[iii] Pub. L. No. 114-119, 130 Stat. 15, 240(b) and § 5.

[iv] Andrea Noble, Bill to Mark Sex Offender Passports Rises Ire of Criminal Justice Advocacy Group, Washington Times, (Feb. 3, 2016), http://www.washingtontimes.com/news/2016/feb/3/bill-to-mark-sex-offender-passports-raises-ire-of-/

[v] Lauren Walker, Civil Rights Group Challenges New Law Requiring Marking on Sex Offender Passports, Newsweek (Feb. 9, 2016), http://www.newsweek.com/civil-rights-group-sex-offender-passports-marking-state-department-424754

[vi] International Megan’s Law to Prevent Child Exploitation and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. No. 114-119, §7

[vii] Id. at §2.

[viii] United Nations, Treaty Collection, Chapter XVIII Penal Maters (Feb. 17, 2016 10:00 AM), https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-a&chapter=18&lang=en


The Prosecution of ISIS

The chief prosecutor of the International Criminal Court (“ICC”), Fatou Bensouda, has stated that her office lacks the jurisdiction to investigate and prosecute the Islamic State in Iraq and Syria (“ISIS”).[1] Although there are an abundance of reports and potential evidence of the terrorist group’s violation of human rights, and a plethora of other crimes, unless further action is taken by the United Nations Security Council, the ICC is most likely never going to be able to open an official investigation into ISIS.

ISIS was officially created in October 2006, as a splinter group of Al Qaeda. Known for its brutal implementation of Sharia Law and their goal to create a caliphate all over the world, ISIS has committed and taken responsibility for a litany of war crimes and terroristic plots including the recent attacks in Paris. ISIS is known for killing dozens of people at a time and carrying out public executions, crucifixion and other acts.[2] These killings are filmed, produced and uploaded to the Internet and distributed through social media for the world to see.

The members of ISIS are unlikely to face prosecution from the countries in which it has taken a stronghold, namely Syria and Iraq. Therefore, there are only two ways for these terrorists to face prosecution: through international tribunals or through capture in a country in which they are wanted.

The issue with the use of international tribunals, namely the ICC, is a lack of jurisdiction. The ICC was established in Rome in 1998 by way of the Rome Statute.[3] It was created in response to the success of the ad-hoc tribunals—the International Criminal Tribunal for former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). These two tribunals were created by the United Nations Security Council to investigate and prosecute crimes committed in these two specific geographic areas. Their successes prompted outcry for a more permanent court that would hold jurisdiction over many more countries.

The Rome Statute holds that the Court will have jurisdiction over certain prescribed crimes. These crimes include, but are not limited to genocide, crimes against humanity, and war crimes.[4] Article 4 of the Statute describes the legal status of the Court and states that the “Court may exercise its functions and powers as provided in this Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.[5] Therefore, to have jurisdiction over ISIS, the countries in which ISIS has operated from—mainly Syria and Iraq—would have to be State Parties to the Rome Statute, which they are currently not. This is what the chief prosecutor explained to the press in his statement. It seems that absent a “special agreement” there is simply nothing that the prosecution can do in regards to ISIS members. The special agreement would need to be adopted by the State Parties to the Rome Statute, but unless there is a real call to action by members of the Security Council, this is unlikely to ever happen.

The ICC is within its power to exercise jurisdiction over captured ISIS members in countries which are parties to the Rome Statute. However, this is unlikely to occur because the Court looks to prosecute those who are in positions of power within organizations and have connections to, or perpetrated the crimes outlined in the Rome Statute. ISIS recruits and those operating in Europe and abroad are usually low-ranking members not worth the resources. Particularly when countries are already prosecuting and using them to gather intelligence.

It is likely that ISIS member and leaders never answer for their crimes in an international court of law unless action is taken by the Security Council to refer the crisis occurring in Syria and Iraq to the ICC and a special agreement is undertaken. However unlikely this is, ISIS will continue to be fought by the international community outside the court system.


Tom Osborne is a 3L and a senior editor of the Journal of Law and International Affairs at the Penn State University Dickinson School of Law.

[1] Marlise Simons, International Criminal Court Says ISIS is Out of Its Jurisdiction, NY Times (Apr. 8, 2015) available at http://www.nytimes.com/2015/04/09/world/middleeast/international-criminal-court-says-isis-is-out-of-its-jurisdiction.html

[2] ISIS Fast Facts, CNN Library, available at http://www.cnn.com/2014/08/08/world/isis-fast-facts/

[3] Rome Statute of the International Criminal Court, International Criminal Court (Jan. 16, 2002), available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/RomeStatutEng1.pdf

[4] Id. at 10.

[5] Id. at 2.