Justice McLachlin states the plaintiff must prove Mr. Scalera intended his actions to be of direct contact and to be “harmful or offensive to constitute a battery”. Due to the intentional infliction of unlawful force committed by Mr. Scalera. The general rule in a battery case is that the victim must prove direct contact and Mr. Scalera would have to prove consent or thought she consented, as a defence for battery. Therefore, the victim must show harm by proving a lack of consent of the battery committed by Mr. Scalera, in support of the case of Freeman v Home Office. The only exception to the tort of battery is that the victim has to prove contact, but such contact in a crowd is not offensive. If the contact falls within the conduct of …show more content…
As a result, Justice Iacobucci states “for traditional batteries, consent conceived of as an affirmative defence that must be raised by the defendant”. It is implied the traditional rule of battery to be altered in the context of sexual battery, but the fault element is on the victim to prove. However, Justice McLachlin is not convinced to alter the established rule due to the unfair advantage on the victim by easing her burden of …show more content…
Mr. Scalera must prove consent that inviolability of the victim’s body was invaded. This principle protects bodily inviolability of victims, and it is for those who violate the physical integrity of others to justify their actions. However, cases with direct interference to the person tend to produce high “demoralisation costs” on victims and those in the community will feel resentment and insecurity if the wrong is not compensated. The tort of battery and trespass to the person is aimed at protecting individuals’ rights to personal autonomy and human dignity. Each person has the rights to control his or her body and who touches it.
Justice Iacobucci states an intentional tort of touching gives rise to the principle that “A person’s body is inviolable, and those who interfere with one’s tangible right to autonomy over one’s own body will be held liable”. This means the onus falls upon Mr. Scalera to prove “that such trespass was utterly without his fault”. The principle of fault is to subordinate the victim’s right to protection from invasions of her physical integrity, dignity and physiological well-being. Mr. Scalera will have to prove his actions were both unintentional and without negligence to disprove fault in this
The Case of R.V Machekequonabe Machekequonabe is charged with shooting and killing his foster father. The difficulty of this case revolves around the fact that his particular pagan Indian tribe believed in the existence of evil spirit wendigos which assume human form and pose a threat to their community. On one hand, there are rules against killing other humans, and on the other, Indian common law says that it is acceptable to kill wendigos (which the defendant believed he was doing). This essay will show how this conflict and ruling can be explained completely by Dworkin's theory of law and judicial reasoning.
Her little boy wasn't expected to make it through the night, the voice on the line said (“Determined to be heard”). Joshua Deshaney had been hospitalized in a life threatening coma after being brutally beat up by his father, Randy Deshaney. Randy had a history of abuse to his son prior to this event and had been working with the Department of Social Services to keep custody over his son. The court case was filed by Joshua's mother, Melody Deshaney, who was suing the DSS employees on behalf of failing to protect her son from his father. To understand the Deshaney v. Winnebago County Court case and the Supreme courts ruling, it's important to analyze the background, the court's decision, and how this case has impacted our society.
The Sacco and Vanzetti case was an unfair trial leading to execution and violent protests as a result of it. In April of 1927 the Slater and Morrill Shoe company in South Braintree, Massachusetts, was robbed for $16,000. The paymaster
The refinement of this definition has significant legal implications, as it broadens the scope of those who can sue within blameless accidents. Prior to this, such victims would also face being labelled with “fault”. Supporting the findings of Axiak, by establishing non-tortious conduct as separate from “fault”, similar, future cases are more likely to proceed despite the plaintiff’s contributory
Ernesto Miranda from Phoenix, Arizona was a poor man. He was arrested due to circumstantial evidence from a woman that recognized him in a police lineup for violently assaulting her. A few short days later, Ernesto Miranda was charged with the rape and kidnapping of the woman. Once in police custody, he was interrogated for about an estimated time of two hours with no attorney present. The police officers that questioned him did not inform him of his Fifth Amendment rights in contrast to self incrimination and the Sixth Amendment right to have an attorney present in the mist of being questioned. During his interrogation, he orally confessed and also confessed in writing to the all crimes he was being charged with. In his written statement,
“…and on the charge that the prisoner did with others to conspire to destroy the lives of soldiers in the military service of the United States in violation of the laws and customs of war-Guilty” were the words that soared out of Wallace’s mouth at the end of the trial. It was then that Henry Wirz was found guilty. Why? Why was he found guilty? This decision was based on the emotional aspect of the witnesses, and not by the actual guilt. Not only my defense, but also the defense of Wirz’s attorney, Baker, the testimony of the defendant, Henry Wirz, shows that Wirz should not have been found guilty.
The responsibilities, the cries, the noise, disappointments and embarrassment were just the beginning the beginning of Casey Anthony madness to her crime. This particular day was June 9, 2008 the family and Casey world will be turned upside down. Casey was paranoid, nervous and panicked, so she packed up Caylee and headed to the dark, wet and scary woods where she thought her actions would be able to give her a normal lifestyle, a lifestyle she wanted before she found out she was pregnant with Caylee. Casey took Caylee her 2 year old daughter at the time to the woods and ducted tape her mouth also her nose and covered her with the cold dirt, covered her and left her for dead. A 2 year old confused, scared and afraid that her horrible mother who she thought loved her would leave her
The case of DPP v Carr is a fundamental case in evaluating arrest as a measure of last resort in the execution of a police officer’s duties. The brief facts of the case were that the defendant Mr. Carr was arrested for having insulted and hurled offensive words at the arresting officer. In the decision of the court it stated that “arrest ought to be the last resort and should not be done if the name and address of the defendant is known by the police and that one will not fail to honour summons issued” . The decision in DPP v Carr has been used as the yardstick under common law in determining the threshold for which a police officer uses before arresting a suspect. In the appellate decision despite having held that the arrest was lawful, it went ahead to declare that it was improper since the police officer had the option of issuing summons.
Initially, the mens rea of rape prior to the case of DPP v Morgan a defendant cannot be found liable for rape if he had the reasonable belief that consent was formed between them and the victim. Which leads to an unfairness to those victims that have been violated, and also that any person accused of rape could say they had belief in consent. Although, it was shown not to matter how unreasonable that belief may have been, in concerning the knowledge or lack of knowledge of consent. Needless to say, the current law has attempted to improve and develop upon this concept, though it may not be completely satisfactory. The 21st century initiated a new state of trying to improve the current laws and precedents on the definition of rape, the prior precedent simply not suitable for the 21st century. Various cases after Morgan , prior to the act that redrew and reformed the Mens rea of rape, came to court and illustrated how the principle of Morgan operates. In Kimber the defendant (D) was charged with sexually assaulting a mentally disordered woman. It had to be determined whether his interference was in fact an assault, even with the D’s claim of consent to his actions, though she claimed otherwise. The court came to find that the mens rea for assault is intentionally touching a Victim (V), unlawfully, i.e. without consent. However, due to the fact that the D believed the consent was there, however unreasonably, he therefore lacked the mens rea of the assault and therefore not guilty.
This essay focuses on intentional tort, which includes trespass to person consisting of battery, assault and false imprisonment, which is actionable per se. It also examines protection from harassment act. The essay commences with a brief description of assault, battery and false imprisonment. It goes further advising the concerned parties on the right to claim they have in tort law and the development of the law over the years, with the aid of case law, principles and statutes.
Tort, one of the crucial subjects of study when analyzing common law jurisdictions. Tort, is an action which causes another person or party to suffer harm or loss []. The person who has committed a tortious act is called the tortfeasor while the person who suffered harm or loss from such act is called the injured party or the victim. Although crimes may be torts, torts may not be crimes [] simply because a tort may not have broken a law. In fact, one must understand that the key idea of tort is not to punish the tortfeasor(s) but rather to compensate the victim(s).
creating fear to another party of experiencing battery; a touch considered unlawful by the law.
Hodgson, Jacqueline. "Adding Injury to Injustice: The Suspect at the Police Station." Journal of Law and Society Mar. 1994: 85-101. Academic OneFile. Web. 15 Feb. 2015.
To comprehend the underlying levels of conviction, there are unfortunate factors from the police, the criminal justice system, the probability of evidence and issue of consent that make convictions immensely difficult to prove. This essay will investigate those measures showing the contrasts of rape and why it is tricky to prove rape occurred without consent, without any corroborative evidence, attitudes of police towards rape victims, the victims withdrawing their report due to personal circumstances and the handling of victims in court, that lead to many offenders having a non-custodial sentence or being acquitted of a rape charge. In the first paragraph, I will explain what constitutes rape and the variations of relationships in which rape is committed. The Sexual Offences Act 2003 (the Act) came into force on the 1st May 2004. The purpose of the Act was to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.
This does not bode well for Anne’s potential case against the caller. The Irish case law strongly suggests that any case she may take would be unsuccessful. There is no evidence to suggest that she was in any immediate danger which would make any fears that she had unreasonable in the eyes if the court. The position may seem very harsh as it is very hard to determine the difference between a reasonable and unreasonable apprehension of a battery. Anne cannot know whether the caller is going to arrive at her house and carry out his threats.