Kara Sears
Common law is a body of unwritten laws based on legal precedents established by the courts. Judges in a court use precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case. Common law has been criticised for marginalising certain groups, such as women, and for treating victims and witnesses as outsiders rather than participants. However, common law is flexible and can be interpreted to address the inapplicability of antiquated gender-based myths and stereotypes in the law. For example, in Europe, victims can participate in the prosecution of the crime in some jurisdictions. In other countries, such as France, the victim may present a civil claim in the course of a criminal proceeding. In Germany, the victim can participate as a secondary accuser in the Nebenklage process. The Government of Canada has also introduced legislation to help address the issue of re-victimization by the justice system and to improve the experience of victims of crime in the criminal justice process.
| Characteristics | Values |
|---|---|
| Common law is made by judges in a court | Common law is made by judges in a court, using precedent – decisions made in previous similar cases – to decide how they will judge a case before them |
| Common law is based on legal precedents | Common law is a body of unwritten laws based on legal precedents established by the courts |
| Common law is influenced by societal changes | Whether outdated or biased, past decisions continue to shape future rulings until societal changes prompt a judicial body to overturn the precedent |
| Common law is open to interpretation | Common law's ability to leave the legal code open for interpretation will become increasingly important as technology advances |
| Common law is not static | Common law has evolved to address the inapplicability of antiquated gender-based myths and stereotypes in the law |
| Common law is flexible | Common law has furnished the basis for new legislation to be written |
| Common law is adversarial | An adversarial conception of the criminal trial treated victims and witnesses as outsiders rather than participants |
| Common law is not victim-centric | Vindicating victims' interests was not the central objective of the trial, and their stake in the outcome was secondary to that of the state and the notional community at large |
| Common law is changing to be more victim-inclusive | Victims seek more accountability from, and more participation in, the criminal justice system |
| Common law is changing to be more responsive to victims | The Government of Canada has introduced legislation to help address the issue of re-victimization by the justice system |
| Common law is changing to be more protective of victims | The new legislation will help protect victims from repetitive examinations and abusive cross-examinations at preliminary inquiries |
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What You'll Learn
Common law's evolution to address gender-based myths and stereotypes
Common law is made by judges in a court, who use precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case. Common law jurisdictions have historically treated victims and witnesses as outsiders rather than participants in criminal trials. However, some countries, such as Russia, France, and Germany, have adopted models that give victims a more active role in the criminal trial process.
In the context of gender-based myths and stereotypes, common law has evolved to address these issues by recognizing the rights of victims and allowing them to participate in the legal process. For example, in Germany's Nebenklage process, the victim is entitled to participate in the investigative stage and has access to the investigatory files of the police and the prosecutor. The victim-plaintiff can also be present throughout the trial and ask questions through a lawyer. This evolution of common law empowers victims, allowing them to actively seek justice and challenge gender-based myths and stereotypes that may exist within the legal system.
One prevalent gender-based myth is that "rapes don't happen often". However, rape is much more common than people think and disproportionately affects women. In the EU, 1 in 20 women aged 15 and over have been raped, which is around 9 million women. Additionally, 1 in 10 women in this age group have experienced some form of sexual violence. By acknowledging the prevalence of rape and adopting a gender-sensitive approach, common law can better address gender-based stereotypes and provide justice for victims.
Another harmful gender stereotype is the notion that "women are irrational". This stereotype contributes to discrimination against women in various aspects of their lives, including their right to health, education, work, and freedom of expression. Common law can play a role in challenging this stereotype by ensuring that gender stereotypes are not perpetuated within legal decisions and that women are afforded equal protection and rights under the law.
Furthermore, common law can address gender-based myths and stereotypes by recognizing the impact of intersecting identities. For example, gender stereotypes disproportionately affect certain groups of women, such as those from minority or indigenous communities, women with disabilities, or those from lower economic statuses. By acknowledging these intersections, common law can ensure that legal decisions and policies are inclusive and responsive to the specific needs and experiences of diverse groups of women.
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Victim participation in prosecution
Common law is made by judges in a court, who use past decisions in similar cases to inform their rulings. If no relevant precedent exists, a new decision is made, which then becomes a precedent for future cases. Statute law, or law made by a parliament, always overrides common law.
Historically, common law has treated victims and witnesses as outsiders to the criminal trial, with their interests considered secondary to those of the state. However, in some jurisdictions, victims now have the right to prosecute or participate in the prosecution to varying degrees.
In Europe, three models for victim participation are generally found. The first model enables the victim to serve as a subsidiary or supporting prosecutor. The second model, found in countries with a French legal tradition, allows the victim to present a civil claim during criminal proceedings. This claim is known as a "partie civile" or "adhesive" in jurisdictions with a German legal tradition. The third model treats the victim as a witness and nothing more.
In Germany, the Nebenklage process allows the victim to participate in the investigative stage and grants them and their lawyer access to investigatory files. The victim is also entitled to be present throughout the trial and may ask questions through their lawyer. Counsel for the victim may also make a closing statement, though they typically do not address sentencing.
In the United States and Canada, victims may submit a written "victim impact statement" to the court, which is then read out during the trial. In Australia, proposals have been made to allow victims to participate as prosecuting witnesses in criminal trials. However, concerns have been raised that victims may pursue prosecution for reasons unrelated to the likelihood of conviction, such as therapeutic reasons, and that involvement in criminal trials may cause distress and lead to secondary victimisation.
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Victim privacy and the open court principle
Common law is made by judges in a court using precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case.
The open court principle is one of the most highly prized values in Anglo-Canadian common law. The principle requires that court proceedings be open to the public and that publicity as to those proceedings be uninhibited. The legitimacy of criminal justice, the fairness of the criminal process, and public confidence in the system are all dependent on the open court principle. However, there are exceptions to the rule. For example, in some cases, a ban on the publication of information may be required to protect the accused's right to be presumed innocent.
In the context of victim privacy, the open court principle can create a tension between the privacy interests of victims and the public's interest in having access to court proceedings. Reforms to protect victim privacy, particularly in sexual assault cases, have been in place for many years. For example, in the Homolka-Bernardo trials, survivors of the French and Mahaffy victims fought to keep graphic videotapes of sex torture out of the public domain.
In some jurisdictions, victims have the right to prosecute the crime or participate in the prosecution to varying degrees. For instance, in some countries, victims can serve as subsidiary or supporting prosecutors, while in others, such as France, victims may present a civil claim in the course of a criminal proceeding. In Germany, the Nebenklage process allows victims to participate as secondary accusers and grants them access to investigatory files.
While victim privacy is important, it is not always clear that the open court principle is compromised when a victim's identity is withheld from the public. Ultimately, what matters is the offence that has been committed and the guilt or innocence of the accused, rather than the name or particulars of the victim.
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Common law's ability to leave legal code open to interpretation
Common law is a body of unwritten laws based on legal precedents established by the courts. It is made by judges in a court, who use past decisions made in similar cases to inform their rulings. If no past cases with similar circumstances exist, a new decision is made, which then becomes a precedent for future similar cases. Common law is applied when no statute law, or law made by parliament, applies to a particular situation. However, statute law always overrides common law.
The ability of common law to leave legal code open to interpretation has been both beneficial and detrimental. On the one hand, common law has been used to address the inapplicability of antiquated gender-based myths and stereotypes in the law. For example, in the last decade, authorities have used the ancient common-law offence of "outraging public decency" to prosecute a new intrusive activity called "upskirting". Common law has also allowed for the evolution of technology to be considered in rulings, such as in the case of protecting children from sexual exploitation via the internet.
On the other hand, common law has historically led to the unfair marginalization or disempowerment of certain groups. For instance, in England, common law held that fathers were entitled to custody of the children in cases of divorce, which kept women trapped in marriages. Feminists in the 19th and early 20th centuries who fought for women's rights often faced difficulties due to common law.
To address these issues, a range of approaches and flexibility in justice system responses is required. The Government of Canada, for example, has introduced legislation to help address the issue of re-victimization by the justice system, protecting witnesses from repetitive and abusive examinations. Other victim-related reforms include improving the experience of victims of crime in the criminal justice process, keeping victims informed, and increasing the accountability and participation of victims in the criminal justice system.
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Common law's influence on unusual cases
Common law, a body of unwritten laws based on legal precedents established by the courts, influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. This is because common law is made by judges in a court, who use precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case.
In the context of victims, common law has changed to address the inapplicability of antiquated gender-based myths and stereotypes in the law. For example, in England, common law held that fathers were entitled to custody of the children in the event of a divorce, a bias that kept women trapped in marriages. Feminists in the 19th and early 20th centuries who fought for women's rights often faced difficulties due to the interpretation of common law.
In addition, the role of victims in criminal trials has evolved over time. Civilian and inquisitorial models of criminal justice treat victims and witnesses as outsiders rather than participants, with their interests not being central to the trial. In contrast, legal systems that do not subscribe to a bipolar model of criminal justice, such as Russia, actively involve the victim in the criminal trial and recognize their rights.
To improve the experience of victims in the criminal justice system, governments have implemented various measures. For instance, the Government of Canada has introduced legislation to address the issue of re-victimization by protecting witnesses from repetitive and abusive examinations at preliminary inquiries. Additionally, the federal government has worked with provinces and territories to make victim-related reforms to the law, recognizing the unique needs of victims characterized by their victimization, gender, relationship with the offender, and personal characteristics.
Furthermore, federal statutes in the US, such as the Victims' Rights and Restitution Act (VRRA) and the Crime Victims' Rights Act (CVRA), outline the services and rights afforded to crime victims, including the right to full and timely restitution, the right to be treated with fairness and respect, and the right to information about available services and support. These changes reflect a shift towards greater accountability and participation for victims within the criminal justice system.
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Frequently asked questions
Common law is a body of unwritten laws based on legal precedents established by the courts. It is derived from its original appearance in medieval England but is still very much in effect in the US and elsewhere today.
Common law is made by judges in a court, using precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case.
Common law has evolved to address the inapplicability of antiquated gender-based myths and stereotypes in the law. For example, in England, common law previously held that fathers were entitled to custody of the children after a divorce, effectively trapping women in marriages. Now, common law has been used to prosecute a new intrusive activity called upskirting.
In some jurisdictions, the victim has the right to prosecute the crime or participate in the prosecution. In Germany, the victim can serve as a subsidiary or supporting prosecutor, while in France, the victim may present a civil claim in the course of a criminal proceeding.
Victims have the right to full and timely restitution, proceedings free from unreasonable delay, and to be treated with fairness and respect for their dignity and privacy. They also have the right to be informed of the status of the investigation, to have their personal property returned, and to receive protection from the suspected offender.
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