Unfortunately, yes there are many that have what is referred to as an Implementation Gap #ImplementationGap
All of us are subject to laws and policies written and approved by our government, (or another government that may apply when we are within their country). We have to comply therefore, we rely on those that adjudicate and or enforce laws to ensure that the laws used are applicable, correct and proven to withstand any criticism as being unfair or capable of being able to misused. We also rely on the correct implementation of these laws. But how do they use an Implementation Gap?
Sometimes governments in order to comply with commitments related to economic activities, or environmental protection, or social justice produce laws and policies, or treaties, or codes of practice that are written to create the appearance of a real law, or create an apparent compliance. However, they create an Implementation Gap which is designed to give the impression that they are doing the very best but everything is designed to prevent anyone from using it to their advantage.
There are many areas where some governments allow Laws and policies to be manipulated.
This can be done when laws are written by using words that allow different outcomes but this has to be done well. Therefore, most times it is done within the implementation stages by using the lower levels of government or the law enforcement agencies. Other ways include legislating high standards of proof on parties seeking to enforce the law through private actions or use complex processes that take time and delay outcomes with the strategy being to create excessive financial costs.
The most effective procedure from the government side is by under funding the essential functions necessary to provide adequate staffing required particularly in the level of investigation, monitoring, training, inspection and enforcement.
This funding issue is often used by those accused of sexual assault when the engage a team of lawyers to defend them leaving the accuser unable to match the extravagant defense team
Here are example of an implementation gap being included in the original document.
Deliberate manipulation of a law, treaty or agreement
- For 70 years Japan has been subject to a SOFA (Status of Forces Agreement) that allows US Military personnel to escape local prosecution for sexual crimes
- Under Article VII of the NATO SOFA, a jurisdictional framework is established which assigns exclusive jurisdiction only in certain cases; notably when an offense is punishable by only one of the countries’ When the substantive law of both countries are implicated, primary jurisdiction is assigned to the sending state only if the offense is against the sending state’s property or forces, or, in cases where the offense has been carried out in the course of official duties. In the case of any other offense, the host state is assigned primary jurisdiction. As a practical matter, these are usually off-post incidents, ranging from traffic accidents to bar fights to the grimmest rapes and murders. This “concurrent” jurisdiction arrangement applies to both criminal and civil cases. However, Article VII also stipulates that “the authorities of the state having the primary right shall give sympathetic consideration to a request from the other State for a waiver of its right in cases where that other State considers such waiver to be of particular importance.”
- In practice, this means that in routine cases host country jurisdiction is waived, while the disposition of particularly sensitive or egregious cases is negotiated between the two States, but from the point of view of the United States, there is an expectation that the host will normally waive if the United States asks it to.
Here are some examples where the implementation gap is done more carefully.
- Cases of Sexual Assault have the lowest success rate to prove the Accused Party Guilty.
- The majority of cases the Accuser knows the Accused
- Rape Test Kits to obtain DNA are expensive take hours to complete and often are never used because of backlog of analysis or just placed into storage
- The Obama White House report estimated each Rape Case cost government USD 250,000
- Lack of funds was claimed to be reason why kits were not analysed
- Accusers gave up, or prosecutors unable to proceed.
- Cases where University involvement in on Campus complaints.
- Universities attempts to resolve complaints of Sexual harassment or Sexual Assault has not been done well with some finding that a University was defending its position and not to be seen as dangerous for students.
- The rights of students are the same as anyone in that there are laws and sexual assaults are a crime and should be reported to law enforcement agencies not to a University who have no powers. For a victim to refer to the University can result in being disadvantaged.
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