 and the comments and criticism they produce are reflected upon the art market directly. Collector’s tastes, occasionally, regulate the direction of artists and curators.

While there are many alternative spaces in Indonesia, most of them are concentrated in Bandung and Yogyakarta. Both cities have a leading art university—Institut Seni Indonesia, Yogyakarta (ISI) and Institut Teknologi Bandung (ITB)—each of which produces many artists every year. “The Laboratory of the West” has been used to characterize the Bandung art scene for a long time. Bandung traditionally works as a gateway to import, absorb and develop Western art. Young artists there deal with new media art such as video installation and sound art. Due to the number of universities and colleges, Bandung holds a higher rate of middle class population which also creates a popular youth culture interested in pop music, fashion, design and MTV-style video. Alternative spaces have developed as part of a bigger cultural movement. Fine art here maintains a close relationship with local youth culture. This cross-over between art and other forms of culture is a unique characteristic of alternative spaces in Bandung such as IF, Common Room and By the Way, though it easily falls into commercialism and consumerism under the logic of capitalization and urbanization.

Contrary to Bandung, Yogyakarta, the historical center of Indonesia, focused more on the preservation of traditional culture such as traditional paintings, fabric, dance, shadow pictures and court music. These traditional arts still hold a certain actuality in Indonesia. Being influenced by such trends, artists in Yogyakarta have emphasized their cultural roots and have opposed modernistic methods of art. Their work often takes up the issue of ethnicity and religion. Besides the center of traditional art, Yogyakarta became a center for social realism during the late 1990s when the Suharto dictatorship finally collapsed. During that time, Yogyakarta produced very influential and internationally well-known artists such as Heri Dono, Dadang Christanto and Nindityo Adipurnomo. Cemati Art House, an alternative art space located in the tourist area of Yogyakarta, was the center of these artists’ exhibitions. Upon the trend of multiculturalism in international art world in the late 1990’s, foreign curators, especially from Japan and Australia, invited these artists to big shows abroad. Following their success in the international art world, a social realistic approach acquired a high popularity among local artists, and eventually created a unique tradition, which is now called “Yogya Style”.

Yogyakarta is also a center of the art market. Collectors with economic power always look for artworks to sell in auctions, not to support the culture in general, but to make profit. While collectors help artists financially, their economically driven understanding of art seems to have a negative impact over the entire art scene of Yogyakarta. By knowing that art can make money, artists tend to produce the work, which is more profitable in the market rather than exploring their own ideas and techniques. It is ironic that market-oriented artists in Yogyakarta can survive as full-time artists while those who are more serious about the art and the meaning of art can barely support themselves by doing many part-time jobs. Under such circumstances, the Yogya-Style that once had a strong message regarding a decomposing society seems to have become a safe mode for attracting collectors.

However, it is Yogyakarta’s strong tradition that artists attach importance to regarding the relationship between art and society. I was impressed with an exhibition by Popok Tri Wahyudi. During the opening
The Work of the Reflections on the Human Condition: Change, Conflict and Modernity

Ichsan, Indonesian curator, states: "Nurdian issue of nationality, ethnicity, and other cultural identities...into the central theme of visual expression. Furthermore, this model raises questions of values Asian art as the other of the mainstream western...neglected. On the other hand, appreciation of regional styles through their everyday life will be completely necessary to be recognized internationally, the understanding of Western aesthetic principles is an opportunity to study in Western countries. If...door to only a limited number of artists who could have...both of which are equally problematic. On the one hand, internationalism creates elitism by opening the...categorize Asian art within the framework of Eurocentric...necessarily reflect the unique practice of Asian artists. In other words, the institution-oriented programs tend to...by lacking the time and resources to understand how...local artists are introduced to the "international curator" from foreign institutions, the significance of such links tends to be neglected. For instance, The Japan Foundation and Fukuoka Asian Art Museum send their curators to Asian countries every year in order to recruit artists for their exhibitions. Since being chosen by the foreign curators is the key for a successful career, local artists tend to understand how to be invited. However, He denounces an abuse of internalized orientalism. Asian artists, to certain extents, are all struggling with the pressure of internationalism and multi-culturalism. The local art scenes of Bandung and Yogyakarta (and Manila and Baguio to some extent) reflect these contrasting discourses.

It is hard from the curator's perspective to completely separate oneself from these existing discourses, especially when her/his work tends to exhibit the work of artists in a comprehensive manner. However, if we seek to develop the idea and the potentiality of Asian art, we need to pursue what is possible within the unique art system developed in Asia. If the art system, especially the rise of alternative space in the area, reflects the unique cultural and social background of Asian art, such systems certainly have a potential to produce something that cannot be possible anywhere else. While the exchange program needs to be more sensitive about external conditions of art in Asia, alternative space as a core of a new style of art needs to recognize its uniqueness when comparing with the western model. Collaborative challenges of many "alternatives" will show us hints for creating new principles of art that are based on diversity rather than an application of international standards.

CONCLUSION

While alternative space functioned as the third sector in the west, which is different from the public museum and commercial gallery, or as the experimental space for the young artist, my research indicated that the same definition is not always applicable to the alternative space in Southeast Asia. The alternative space can function as the third sector only if the other two sectors have solid party, he prepared an ambulance car with his painting to offer free medical examinations to neighbors. I am used to attending exhibition openings that always seem tediously similar—drinks, snacks and sociable conversations with art world people. I was surprised when I saw that injured children, pregnant women and old people were welcome at the party. Performance and exhibition in public spaces and workshops for people also exist in Yogyakarta. Although art projects interact with social contexts in international trends in the art world, all art projects done by Yogyakarta artists do not come from such trends, but from their reference to tradition.

INTERNATIONAL ART SYSTEMS AND ASIAN 'ALTERNATIVES'

As we have seen, each alternative space in Asia has its own unique history and role in its local community. The potential of Asian art can only be understood by understanding the close link between artist’s work and specific cultural and social conditions. However, when local artists are introduced to the “international curator” from foreign institutions, the significance of such links tends to be neglected. For instance, The Japan Foundation and Fukuoka Asian Art Museum send their curators to Asian countries every year in order to recruit artists for their exhibitions. Since being chosen by the foreign curators is the key for a successful career, local artists tend to understand how to be invited. However, by lacking the time and resources to understand how the local art is formulated, these foreign curators tend to apply the international trend of art, which does not necessarily reflect the unique practice of Asian artists. In other words, the institution-oriented programs tend to categorize Asian art within the framework of Eurocentric internationalism or one of orientalistic multiculturalism both of which are equally problematic. On the one hand, internationalism creates elitism by opening the door to only a limited number of artists who could have an opportunity to study in Western countries. If the understanding of Western aesthetic principles is necessary to be recognized internationally, the majority of Asian artists who seek to pursue their own styles through their everyday life will be completely neglected. On the other hand, appreciation of regional specificity within the context of multiculturalism only values Asian art as the other of the mainstream western art. Furthermore, this model raises questions of representation and misrepresentation by turning the issue of nationality, ethnicity, and other cultural identities into the central theme of visual expression. Nurdian Ichsan, Indonesian curator, states: "Some artists believe that fine art is a way to rouse freedom, improvement of life and self-awareness of the people. Others consider art as a way to “compensate” a collective identity in the masses. In these cases, artists place their own identity as a part of a limited social collective identity. It is also seen that artists try to seek for their national identity from the tradition that come from the past collective values, and from spirituality of modern society. (...) These phenomena caused a stereotype in the development of Indonesian contemporary art. And this stereotype became a necessary condition to enter the international art scene from the third world. What is appreciated there is a “cultural identity card” of the artist’s local identity in the work. Rather, it is easy to see this stereotype from artists who look for icons that implicate tradition, region, religion, identity of community and specific social situation."

He denounces an abuse of internalized orientalism. Asian artists, to certain extents, are all struggling with the pressure of internationalism and multi-culturalism. The local art scenes of Bandung and Yogyakarta (


 for sex, and a sigh of relief from paternal responsibility.”).24 The opinion makes it clear that differences in taste, culture, or sense of humor must not stop courts from safeguarding the social benefits parody provides and protecting them from intellectual property liability. The Supreme Court quoted a warning issued by Judge Leval, then a district court judge, in a case involving trademark parody: “First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.”25

22. See, e.g., Mut. of Omaha Ins. Co. v. Novak, 836 F.2d 397, 402–03 (8th Cir. 1987) (granting preliminary injunction for Mutual of Omaha against “Mutant of Omaha” parodist); Walt Disney Prods. v. Air Pirates, 581 F.2d 751, 757 (9th Cir. 1978) (holding that defendant infringed Walt Disney Productions’ trademarks on its cartoon characters by depicting parodies of them in adult “counter-culture” comic books, and denying a fair use defense where a “parodist has appropriated a greater amount of the original work than is necessary to ‘recall or conjure up’ the object of his satire”); Brach Van Houten Holding, Inc. v. Save Brach’s Coal. for Chicago, 856 F. Supp. 472, 477 (N.D. Ill. 1994) (issuing a preliminary injunction to prevent defendant from incorporating Brach’s logo into protest organization’s promotional materials); Hard Rock Cafe Licensing Corp. v. Pac. Graphics, Inc., 776 F. Supp. 1454, 1463–64 (W.D. Wash. 1991) (enjoining defendants from using “Hard Rain Cafe” imitation of “Hard Rock Cafe” trademarks referring to the weather in Seattle); Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183, 1187 (E.D.N.Y. 1972) (granting a preliminary injunction against defendant who parodied the “Coca-Cola” trademark to read “Enjoy Cocaine” while noting the parody was a “clear indication of defendant’s predatory intent, however humorous defendant consider[ed] it”).

23. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994) (comparing “social benefit” provided by parody to that from “less ostensible humorous forms of criticism” (emphasis added)); id. at 582 (“Whether . . . parody is in good taste or bad does not and should not matter to fair use.”); id. at 583 (“[W]e might not assign a high rank to the parodic element here . . . .”).

24. Id. at 583.

25. Id. (quoting Yankee Publ’g, Inc. v. News Am. Publ’g, Inc., 809 F. Supp. 267, 280 (S.D.N.Y. 1992) (Leval, J.)); see also id. at 582–83 (“[I]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [a work], outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” (quoting Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (Holmes, J.).))
Campbell did not add much of its own flowery quotable language praising the social worth of parody, although later trademark decisions and scholarship filled that void. It let the analysis, recognizing and favoring parody at every turn, speak for itself. As a statement from our highest court, Campbell stands as a landmark in the growing appreciation for parody in intellectual property doctrine. That growth has spread to trademark law. As David Simon has documented extensively, courts in trademark cases often cite Campbell to demonstrate the cultural value of parody as a particularly powerful form of expression.

B. Parody Is Tricky

The second lesson of Campbell concerns the difficulty of safeguarding parody. Since Campbell clearly recognized the value of parody, one might assume that the doctrine the Court used to protect it might be fairly simple. The Campbell opinion repeatedly warns that this is far from true. Rather, “[t]he task is not to be simplified with bright-line rules.” 27 That caution applies in trademark cases as much as in copyright.

The Court took pains to emphasize that fair use for parody did not mean that “anyone who calls himself a parodist can skim the cream and get away scot free.” 28 In its analysis of the third fair use factor, 29 concerning the “amount and substantiality” of the parodist’s copying, 30 the majority opinion was especially sensitive to the danger that false parody claims might offer a fig leaf for infringing activity, and suggested that courts look at “what else the parodist did” beyond copying the original. 31 Justice Kennedy concurred primarily to express even greater reservations about what he saw as the risk of “profiteers,” 32 warning that courts “must take care to ensure that not just any commercial takeoff is rationalized post hoc as a parody.” 33

27. Campbell, 510 U.S. at 577.
28. Id. at 589.
29. Id. at 586–89.
32. Id. at 598 (Kennedy, J., concurring).
33. Id. at 600; cf. Yankee Publ’g, Inc. v. News Am. Publ’g, Inc., 809 F. Supp. 267, 279 (S.D.N.Y. 1992) (rejecting argument in a trademark case that “the joke is an after-the-fact contrivance designed to camouflage a piracy of [plaintiff’s] goodwill”).
Of course, trademark rights do not allow markholders to control every drop of the “cream” in their brands. Mark Lemley and Mark McKenna have demonstrated persuasively that much of the concern about “free riding” on consumer association with a trademark lacks both theoretical and empirical support. Thus, unlicensed uses of a trademark that draw somewhat on its selling power still may be acceptable, particularly when other interests are at stake. Even in their modern expanded form, trademark rights are subject to doctrinal limitations such as the bar on protection for functional features35 or the nominative use doctrine36 that allow defendants to imitate trademarks for their own purposes. Other unlicensed uses are vindicated by a lack of likely consumer confusion. These various escape valves apply to many expressive uses of trademarks, often including parody but reaching much more broadly.

Nonetheless, worry about “skimming the cream” through excessive imitation makes trademark parody cases particularly difficult. As in copyright, courts in trademark parody cases carefully note that any defense for parody is contingent, not absolute.37 If we thought that every claim of parody should prevail automatically over intellectual property rights, then Campbell would not be a landmark case. All observers agree that some plausibly parodic imitations may infringe trademarks. Suppose I try to sell a brown carbonated soda as “Popsi.” It is easy to imagine me arguing that I was merely mocking a better-known soda brand with my whimsical play on words. I should lose this argument on the merits. But it is not so easy to differentiate such illegitimate use of the PEPSI mark from a true parody like “Chewy Vuiton” dog toys that imitate Louis Vuitton luxury handbags.38 Because we easily envision trumped-up parody arguments, we must wrestle with two thorny follow-up questions. What counts as parody? What proportion of the original may a parody imitate in pursuit of its aim? Both inquiries swiftly become entangled in complexity.

First, a court must decide when the facts actually present parody.

37. See, e.g., Lyons P’ship v. Giannoulas, 179 F.3d 384, 389 (5th Cir. 1999) (“[C]onfusion resulting from a parody is not an affirmative defense to a trademark infringement claim but is instead an additional factor that should be considered.”); Dardenne v. MoveOn.org, No. 14-00150-SDD-SCR, 2014 WL 1364854, at *3 (M.D. La. 2014) (“[P]arody does not provide an absolute cloak of protection from a claim of trademark infringement . . . .”).
questions that merit more careful analysis. *Campbell* presents the threshold question as “whether a parodic character may reasonably be perceived.”39 Non-parody trademark doctrines likewise engage in this exercise of determining initial eligibility for a defense. For example, the first prong of the nominative use test, which shields the use of a mark simply to refer to a brand or company,


 in two directions. This can result in torn ligaments and injured muscles. But it is all part of rodeo.

Yet, in the face of such activities, an article in the July-August 1973 Saturday Evening Post stated that rodeo is "a performance of man and mount that becomes a ballet in itself because the minds and muscles of both have learned how to work together in an admirable partnership." How anyone could imagine a calf or a steer being flipped into the air and slammed to the ground as ballet is difficult to understand.

The Humane Society believes cattle roping events conducted for entertainment—calf roping, team roping (one steer, two cowboys), and steer busting—should be banned in every state. As a step toward that goal, HSUS officials testified before the Colorado Legislature in April 1973 in support of bills that would ban roping and busting of any animal in rodeos. Both bills had been introduced by Sen. Ted Strickland (R-Westmin ster) who has since been appointed lieutenant governor.

"There are no events in rodeo performances that are more injuri ous to calves and steers than those events employing the act of rop ing." HSUS President John A. Hoyt told the Colorado Senate State Affairs Committee. "Indeed, the brutal nature of these events should convince any sensitive per son that animals so roped are being subjected to torment, pain, and in jury."

HSUS's position was supported editorially by the Rocky Mountain News, one of the West's most presti gious newspapers.

HSUS's testimony was presented in a hearing room packed with rodeo participants and fans, who claimed that a ban on calf roping would cause the demise of rodeos.

HSUS investigators observed visible injuries to as many as 11-12% of the animals in some steer busting events. "Nobody wants to see these ani mals hurt, but that's how we make our money," one speaker said. "And we all want to make money."

The committee said they would take the bills under consideration, but, in light of the overwhelming presence of rodeo supporters, it seemed unlikely that the bills would ever again see the light of day.

In praising Strickland for his courage in introducing the bills, Rocky Mountain News columnist Craig Barnes said an issue that had been overlooked at the hearing was kindness. Said Barnes: "Perhaps a goal even nobler than the pursuit of truth of injury is the pursuit of gentleness. Without proof, we know it hurts a dog to pick him up by his ears, is cruel to leave a cat out in the snow and rain, or to spur and gouge a horse to make him buck. We know these things because there is something in us which tells us, and most likely that something is what makes us human."

In the course of their study for HSUS, investigators talked with many ranchers in Colorado and Wyoming who stated they considered their calves too valuable to risk injury to them by roping. To prevent the injuries that can occur in roping, many of these ranchers reported moving calves into holding pens, chutes, or other small enclosures before roping the hind legs.

Too often rodeo animals are so badly injured that they must be hauled from the arena on a sled. Veterinary care is seldom available.
As a so-called “bucking bronco” leaves the chute, a cowboy cinches a flank strap so tightly around the horse that the horse is sure to buck. HSUS charges that this strap both injures and torments the animal.

Yet, rodeo proponents continue to claim that livestock would get even rougher handling on ranches. Even their claims about rodeo events being Old West traditions are phony, as most of the events have been developed solely for the purpose of entertainment.

One of the most disturbing aspects of rodeo is that it gives children who participate an insensitive outlook on animals. Through Little Britches rodeo groups, high school rodeo groups, and collegiate rodeo associations, children and youth of all ages are taught to treat animals inhumanely in the name of competition. Such an atmosphere of violence may be psychologically damaging to children.

HSUS’s persistent efforts to change rodeo activities have brought the entire rodeo industry to the defense. The large turnout of rodeo supporters at the Colorado hearing is typical of the forces that the rodeo industry can rally through its associations. Security at rodeo performances is now extremely tight. This extends down even to high school and “bush league” weekend rodeos. It is almost impossible for an outsider—even members of the press—to enter the chute areas and corrals in which injuries or the use of electric prods and other mechanical devices might be observed.

The two largest national rodeo associations, the Rodeo Cowboys Assn. (RCA) and the International Rodeo Assn. (IRA), are extremely powerful. They employ the techniques of professional public relations firms, distribute regular communications to their members, and rally mass support when any aspect of rodeo is being challenged. One of their primary defenses is that they have strict rules that must be followed by any rodeo they sanction. What they do not mention is that only approximately 30% of all rodeos conducted in the United States are sanctioned by either association.

There is little or no humane supervision at most rodeos. Although RCA and IRA claim that the American Humane Assn. (AHA) supervises rodeos, AHA is able to send supervisors to only some 10% of them. Whereas AHA Executive Director Rutherford T. Phillips stated that AHA “would be happy to see rodeos discontinued or outlawed,” AHA has failed to publicly disavow the misleading protective role in which the rodeo associations have cast it.

Not all rodeos have veterinary care available for injured animals. Conditions such as overgrown or cracked hooves, open wounds, skin infections, malnutrition, internal parasites, and improper loading and unloading of animals receive little or no attention. Only the most valuable animals receive adequate care.

HSUS learned of an incident involving extreme neglect to a bucking horse that was severely injured during a 1973 Independence Day rodeo in Pocatello, Idaho. The horse was dragged out of the arena without the aid of a sled. As the horse was dragged through the gate, its rear legs became entangled in the fence. As several spectators booed their disapproval, the horse was pulled by its tail until it was freed. With no veterinarian being in attendance, a rodeo official broadcast a plea for one. A non-practicing veterinarian who had been in the grandstands answered the call and diagnosed the injury as a broken back. He advised the

The spectacular aspect of steer busting is the flipping of the steer, which is accomplished by letting the lariat drop below the steer’s buttocks (left), and the cowboy’s riding off at a 45° angle, causing the steer to be jerked around (center), and flipped to the ground on his side (right).
rodeo stock contractor, who owned the horse, that the horse should be destroyed and that he could not do it because he was not a practitioner.

The following morning, the horse was discovered to be still alive and unattended. A police officer responded to a call and loaned his investigators to the scene. As a result, HSUS has charged the stock contractor with cruelty to animals under Idaho statutes.

Rodeo supporters claim that rodeo animals are trucked from one town to another and used almost daily. In addition to the animals seen by spectators, rodeo performers use other animals for practice in preparation for performances. These animals are subjected to constant risk of injury, without even the scrutiny of spectators to protect them from flagrant abuse.

"The truth of the matter is that most of the animals are subjected to pain practically every time they are used." HSUS Director Robert F. Welborn told the Colorado State Board of Agriculture in June 1973. "This pain may be transitory, or it may be the result of an internal injury that will continue."

"In addition to pain, the animals are subjected to constant fear and torment," Welborn said.

Fear and torment are the key factors in causing otherwise gentle horses to buck, thereby producing the widely advertised "bucking bronco." The HSUS study concluded that rodeo horses and bulls buck because of (a) pressure of the flank strap, a heavy leather strap cinched tightly around the animal's flanks, applying pressure to sensitive lumbar nerves, to the inguinal canal area, and, occasionally, on the prepuce of the male animal, and (b) digging into the animal's flesh by the cowboy's spurs.

Part of the investigators' study of the flank strap involved cinching flank straps around two horses known for their calm temperament. Both horses bucked. The investigators also released a former rodeo bucking horse from a bucking chute several times without a flank strap. The horse did not buck.

The bucking horse is simply attempting to rid himself of a tormenting device, the study concluded.

Contrary to the claim of rodeo associations that a fleece-lined flank strap protects the animal, the study team found that fleece-lined flank straps produced more abrasions to the flanks of horses than did unlined flank straps.

HSUS is determined to put an end to all cruelty at rodeos. But the opposition to reforms is well organized and fierce. Every little town that depends on rodeos to draw tourists and every manufacturer of rodeo apparel or equipment will be fighting change.

Said Rocky Mountain News columnist Barnes of rodeo: "It isn't going to be easy to put a rope around a tradition like that and drag it off into history. And it isn't going to go without kicking and bawling and raising dust."

It is ironic that man, the only living creature capable of reason, sets out to torment, inj


, LAMP-GASS BRUSHES, NAIL BRUSHES, SCRUBBING BRUSHES, SHAVING BRUSHES, TOILET BRUSHES, TOOTH BRUSHES AND ELECTRIC TOOTH BRUSHES, BRUSH MAKING MATERIAL; CLEANING EQUIPMENT, NAMELY, ABRASIVE AND SCOURING PADS, BROOMS, CLEANING RAGS, NON-ELECTRIC CARPET BEATERS, DUSTBINS, BUCKSKIN CHAMOIS FOR CLEANING, CHAMOIS LEATHER FOR CLEANING AND POLISHING, CLOTHS FOR WASHING FLOORS, DUST CLOTHS, FEATHER DUSTERS, POLISHING CLOTHS, POLISHING LEATHER, WASHBOARDS, CLEANING SPONGES, STEEL WOOL FOR CLEANING; UNWORKED OR SEMI-WORKED GLASS EXCEPT BUILDING GLASS, BEVERAGE GLASSWARE, PORCELAIN AND EARTHENWARE GOODS NOT INCLUDED IN OTHER CLASSES, NAMELY, MUGS, DOORKNOBS, BUSTS, STATUETTES, JARS, JUGS, PITCHERS, FLOWER POTS, BOWLS, AND VASES (U.S. CLS. 2, 13, 22, 29, 30, 33, 40 AND 50).

CLASS 24—FABRICS

FOR TEXTILES AND TEXTILE GOODS NOT INCLUDED IN OTHER CLASSES, EXCEPT FOR TOWELS, NAMELY, BILLIARD TABLE CLOTH, BROCADES, CA-LICO, CANVAS FOR TAPESTRY OR EMBROIDERY, CREPON, CURTAINS, CUSHIONS, DAMASK, DOOR CURTAINS, ESPIRTO FABRIC, FABRIC FOR BOAT AND SHOE MANUFACTURE, IMITATION ANIMAL SKIN FABRIC, FELT, FLANNEL, HANDBERCHIEFS, HEMP CLOTH, HEMP FABRIC, JERSEY FABRIC, LINEN CLOTH, LINERIE FABRIC, MOLESKIN, MOSQUITO NETTING, NET CURTAINS, OIL CLOTH FOR UMBRELLA TABLE COVERS, RAYON FABRIC, UPHOLSTERY FABRIC, VELVET, WOOLEN CLOTH, AND WOOLEN FABRIC, CLOTH BANNERS, BOOK LINING COVER, NAMELY, BOARD GAMES AND ACTION FIGURES; ARCADE GAMES (U.S. CLS. 22, 23, 38 AND 50).
CLASS 41—EDUCATION AND ENTERTAINMENT
FOR EDUCATIONAL SERVICES IN THE NATURE OF SPORTS CLINICS AND SEMINARS; ENTERTAINMENT SERVICES IN THE NATURE OF ORGANIZATION OF SPORTING EVENTS, SPORTS CONTESTS AND TOURNAMENTS, AND PROVIDING FACILITIES FOR SPORTING EVENTS, SPORTS CONTESTS AND TOURNAMENTS; PRODUCTION OF REALITY TELEVISION PROGRAMS RELATES TO SPORTS, SPORTING EVENTS AND ATHLETIC COMPETITION (U.S. CLS. 100, 101 AND 107).

MICHAEL LEWIS, EXAMINING ATTORNEY

SN 79-035,097. HILMAR NICOLAY, BERLIN, FED REP GERMANY, AND LENNART KLEIBER, FED REP GERMANY, FILED 10-23-2006.

THE MARK CONSISTS OF STANDARD CHARACTERS WITHOUT CLAIM TO ANY PARTICULAR FONT, STYLE, SIZE, OR COLOR.

THE ENGLISH TRANSLATION OF THE WORD "USUS" IN THE MARK IS "CUSTOM".

CLASS 16—PAPER GOODS AND PRINTED MATTER
FOR WRITING UTENSILS, WRITING UTENSILS WITH LEADS, PASTEL PENCILS, PENCILS, FOUNTAIN PENS, INDELIBILE PENCILS, OFFICE AND SCHOOL SUPPLIES EXCEPT FURNITURE AND ELECTRONIC DEVICES, NAMELY, STATIONERY, NAMELY, PAPER AND CARDBOARD, GIFT CARDS, GREETING CARDS, BUSINESS CARDS, DRAWING CARDS; DRAWING PADS, WRITING PAD AND INKING PADS, ENVELOPES FOR STATIONERY, PLASTICS FOR PACKAGING, NAMELY PLASTIC BAGS AND BUBBLE PACKS; LETTER OPENERS, DRAWING RULERS, FILES FOLDERS, FILE JACKETS, PASSPORTS HOLDERS, FILES AND TRAYS FOR PAPER, FOR LETTERS, FOR DOCUMENTS AND FOR BUSINESS CARDS; INDEX CARD FILES, STORAGE BOXES MADE OF PAPER OR CARDBOARD; CALENDARS AND TIME PLANNERS AND PERSONAL ORGANIZERS AND REFILLS FOR THESE, APPOINTMENT BOOKS AND ADDRESS BOOKS AND MEMO BOOKS AND REFILLS FOR THESE, NOTEBOOKS, COLUMNAR BOOKS, BLANK AND BUSINESS FORMS AND JOURNALS; PORTABLE EASELS, BOOKENDS; PAPER CLIPS, PAPER CLIP HOLDERS AND PENCIL HOLDERS, PAPER LABELS AND STICKERS; ADHESIVE TAPES, GUMMED TAPES AND OFFICE TAPE DISPENSERS, ALL FOR STATIONERY PURPOSES; STAMPS AND SEALS FOR OFFICES, STAMP HOLDERS, STAMP PADS AND REFILLS FOR STAMPS PADS, GLUES FOR OFFICES IN PARTICULAR FOR PAPER AND CARDBOARD; BINDERS, BINDER INDEX, DIVIDERS, NAMELY, INDEX DIVIDERS AND NOTEBOOK DIVIDERS, BINDING STRIPS, THUMBTECKS, STAPLES, STAPLERS AND PUNCHES FOR PAPER OR CARDBOARD, STAPLE REMOVERS, CHALK, CHALK BOARDS, CHALK ERASERS, CORRECTION FLUID FOR DOCUMENTS, CORRECTING PENCILS, CORRECTING TAPES, INK AND PENCILS ERASERS, CRAYONS, HIGHLIGHTER PENS, MARKER PENS, BALLPOINT PENS, GEL ROLLER PENS, INK PENS, PEN INK REFILLS, PENCILS LEADS, AND PENCIL SHARPENERS (U.S. CLS. 2, 5, 22, 23, 29, 37, 38 AND 50).

JAMES GRIFFIN, EXAMINING ATTORNEY

THE COLOR(S) GREY, RED, BRIGHT RED, AND PINK IS/ARE CLAIMED AS A FEATURE OF THE MARK.

THE WORDING IN THE MARK IS GREY, THE LEFT SIDE OVAL IS PINK, THE CENTER OVAL IS BRIGHT RED, AND THE CIRCLE ON THE RIGHT IS RED.

THE WORDING "ANTEIS" HAS NO MEANING IN A FOREIGN LANGUAGE.

CLASS 3—COSMETICS AND CLEANING PREPARATIONS
FOR ARTICLES FOR BODY AND BEAUTY CARE, NAMELY, ANTI-AGING CREAMS, BEAUTY GELS, BODY AND BEAUTY CARE COSMETICS, COSMETIC CREAMS FOR SKIN CARE (U.S. CLS. 1, 4, 6, 50, 51 AND 52).

TM 258 OFFICIAL GAZETTE AUGUST 12, 2008

CLASS 11—ENVIRONMENTAL CONTROL APPARATUS
FOR FLASHLIGHTS (U.S. CLS. 13, 21, 23, 31 AND 34).

CLASS 14—JEWELRY
FOR WATCHES AND CHRONOGRAPHS, NAMELY, TIMEPIECES WITH STOPWATCH FUNCTION, FOR USE AS WRISTWATCHES, POCKET WATCHES OR FOR USE WITH RINGS, NECKLACES OR BRACELETES; JEWELRY, TIE CLIPS, TIE PINS, KEY RINGS OF PRECIOUS METAL (U.S. CLS. 2, 27, 28 AND 50).
CLASS 5—PHARMACEUTICALS

For pharmaceutical preparations, namely, injectable biopolymers and biopolymer gels for use in the fields of cosmetology, aesthetic dermatology, cosmetic surgery, ophthalmology and rheumatology (U.S. CLS. 6, 18, 44, 46, 51 and 52).

CLASS 10—MEDICAL APPARATUS

For surgical apparatus and instruments, namely, ocular implants, implants consisting of artificial materials, surgical implants consisting of artificial materials, knives in the field of ophthalmology; medical apparatus and instruments, namely, medical injection pens (U.S. CLS. 26, 39 and 44).

CLASS 41—EDUCATION AND ENTERTAINMENT

For providing instruction and educational classes, workshops, seminars and lectures in the field of aesthetics, cosmetology and medicine (U.S. CLS. 100, 101 and 107).

G. MAYERSCHOFF, EXAMINING ATTORNEY

SN 79-035,992. NORGREN G


 appears to be that it is better to retain the contractual relationship but to give the Employer the right to terminate, which employers should exercise only after taking professional advice as to whether that course of action is the most appropriate in all the circumstances of the particular project and Parties. Alternatives open to the Employer include entering into continuation contracts or novation of the existing contract.

In most insolvency procedures, an administrative receiver, administrator or liquidator, hereafter referred to collectively as an ‘Insolvency Practitioner’, would be acting for the Contractor. Any agreement with the Contractor would therefore be with that person. To become a qualified Insolvency Practitioner, one must be a member of a professional body recognized by the Secretary of State for the Department of Business, Enterprise and Regulatory Reform and licensed to act in that capacity. To acquire such recognition, a professional body must satisfy the Secretary of State that its rules and regulations ensure that anybody licensed by it to practise as an Insolvency Practitioner has appropriate qualifications and training. Most Insolvency Practitioners are partners in the large legal and accountancy professions.

16.7.1 Instruction to the Contractor to continue

The Contractor’s employment may be reinstated by agreement between the Employer and the Contractor (Clause 8.3.2). In practice, reinstatement is usually agreed only where either a novation can be arranged or it is clear that the Contractor, under the management of the Insolvency Practitioner, will be able to complete the project. If the project is near Practical Completion, the Insolvency Practitioner may well choose this course of action in order to recover retentions and avoid or minimize liquidated damages. The Employer may be attracted to such an arrangement to avoid the disruption of getting other contractors in.

16.7.2 Continuation contracts

A continuation contract entails the Employer entering into another contract whereby the Contractor, under the management of the Insolvency Practitioner, undertakes to complete the Works. Such a continuation contract is often in effect a variation to the original Contract (i.e. new terms are introduced). For example, the Employer may agree to advance payment or a new completion date. However, it is possible for the continuation contract to require the Contractor to continue and complete as he was originally obliged to. The value of a continuation contract contemplates a situation where the Employer, after examining the circumstances of the insolvency situation and alternative courses of action available to him, comes to a conclusion that his interests are best served by such an arrangement. A major factor that the Employer would usually consider is that the Insolvency Practitioner is personally liable for any non-performance of the continuation contract. This offers considerable protection since Insolvency Practitioners are normally from the major legal and accountancy firms and are therefore usually covered by appropriate professional indemnity insurance cover. On the part of the Insolvency Practitioner, he must also come to a view that such an arrangement is more advantageous to his appointor or the general body of creditors than termination.
16.7.3 Novation

The Employer and the Insolvency Practitioner may come to the view that novation is more in their mutual interests than termination of the Contractor’s employment. In this context, a novation is an agreement involving the Employer, the Insolvent Contractor and a substitute contractor that the latter has replaced the Insolvent Contractor as the Contractor under the Contract. Thereafter the Substitute Contractor is governed by the Contract as if that has been the case from the start whilst the Insolvent Contractor ceases to have any further obligations or rights under the Contract. A novation is feasible only where the Contract is profitable and the Substitute Contractor is willing to share the surplus in the completed work with the Insolvency Practitioner. The surplus is the total value of the work executed less total payment made under the Contract. A conditional novation is a novation in which the terms of the Contract are varied by the agreement. This is a course of action that the Employer may consider where the Contract is not attractive enough to other contractors to bring about a pure novation. Examples of changes in terms include a new Completion Date, exclusion of the Substitute Contractor’s liability for defects in the pre-novation work, and a new Contract Sum.

16.8 Corruption

The Employer may, by written notice, terminate the Contractor’s employment if, in relation to this contract or any other contract between the Parties, the Contractor or any person employed by him or acting on his behalf commits an offence under the Prevention of Corruption Acts 1889 to 1916. A Local Authority Employer may also do so if the Contractor has given any fee or reward the receipt of which is prohibited by s. 117(2) of the Local Government Act 1972. The essence of these offences is the offering of inducement or reward for improper conduct in relation to the execution or performance of relevant contracts.

It is to be noted that acts of the Contractor’s employees without his sanction or knowledge may amount to corruption. Also of significance is the provision that the clause covers similar acts committed on other contracts between the Employer and the Contractor.

16.9 Termination by the Contractor for Employer’s defaults

The specified defaults of the Employer for which the Contractor may terminate his own employment are listed under Clause 8.9.1. These are that the Employer:

- fails to discharge to the Contractor any amount stated as payable under a certificate and/or VAT payable on the amount by the final date for payment;
- interferes with or obstructs the issue by the Architect of any certificate;
- assigns the Contract without the Contractor’s consent;
- fails to discharge his contractual obligations in respect of the CDM Regulations.

16.9.1 Failure of the Employer to pay

The final date for payment pursuant to an Interim Certificate is 14 days from the date of its issue (Clause 4.13.1). The equivalent date for the Final Certificate is 28 days from the
date of its issue (Clause 4.15.4). The Employer must pay the amount due under any certi-
tificate plus any VAT properly chargeable in respect of the certificate (Clause 4.6.1) by the
relevant final date. Failure of the Employer to pay the amount properly due pursuant to a
certificate entitles the Contractor to terminate his own employment. A less drastic course
of action open to the Contractor is suspension under Clause 4.14.

In Rupert Morgan Building Services (LLC) Ltd v. Jervis the English Court of Appeal
held that, where a contract provides for a contract administrator as certifier of payment
as in JCT 05, any amount stated on a certificate becomes the amount due. However,
subject to serving appropriate notices as explained in Chapter 15, Section 15.2.7, the
Employer may pay a lesser amount if he believes that it is the ‘amount properly due’ to the
Contractor under the Contract. As stated by the House of Lords in Melville Dundas Ltd (in
Receivership) v. George Wimpey UK Ltd and Reinwood Ltd v. L Brown & Sons Ltd the
requirement for these notices is designed to ensure that a contractor knows immedi-
ately and with sufficient clarity where a set-off against payment otherwise due is being made
and the grounds for it so that he may seek speedy redress by reference to adjudication.

16.9.2 Interference/obstruction by the Employer

It is explained in Chapter 2, Sections 2.1.3 and 2.4 that, even in the absence of an express
term of the kind in Clause 8.9.1.2, the Employer would be under an implied duty not
to interfere with the professional judgment of the Architect whenever he makes deci-
sions in his capacity as an independent third party holding the balance fairly between the
Employer and the Contractor.

For this condition in Clause 8.9.1.2 to apply, two facts must be established. First,
the Employer, or his agents, must have had the intention either to prevent the Architect
from performing his certification duties or to influence unduly the Architect’s judge-
ment in the performance of such duties. Second, there must have been actual interference
or obstruction. In R. B. Burden Ltd v. Swansea Corporation it was said that inadvert-
ent errors, negligence or omissions of agents of the Employer who, at the request of the
Architect, assisted in the certification process would not usually amount to interference or
obstruction.

16.9.3 Assignment

Clause 7.1 prohibits any of the parties from assigning the Contract without the consent
of the other. Assignment by the Employer of any right under the Contract without the
Contractor’s consent is a default for which the Contractor has a right to terminate his own
employment.

57 [2003] EWCA Civ 1563; [2003] BLR 18; [2004] TCLR 3; 91 ConLR. 81. In this case the English Court
of Appeal approved a similar decision of the Scottish Sheriff’s Court in Clark Contracts Ltd v. Burrell Co
60 [1957] 1 WLR 1167.
61 See Chapter 8, Section 8.2 for discussion on ‘assigning a contract’; see Section 16.6.4 for termination for
assignment by the Contractor.
16.9.4 CDM Regulations

Under Clause 3.25, each Party undertakes to the other a contractual duty to comply with the CDM Regulations in relation to the Works and the site. The Employer is to ensure compliance with respect to two particular aspects of the Regulations. First, the Employer must ensure that the CDM Co-ordinator carries out his duties under the CDM Regulations. The same obligation


 burden of showing that a revocation or suspension of a license under this section is not arbitrary or capricious. (Ord. #JT9905, Jan. 2000)

9-810. Hearings on disciplinary actions–judicial review–prohibition on operation of business. (1) As used in this section, "application" means:

(a) An application for a license;
(b) An application for a permit;
(c) An application for a license renewal; and
(d) An application for a permit renewal.

(2) Whenever an application is denied, the chair shall notify the applicant in writing of the reasons for such action; such notice shall also advise the applicant of the applicant's right to request a hearing before the board. If the applicant desires to request a hearing before the board to contest the denial
of an application, such request shall be made in writing to the mayor of such city within ten (10) days of the applicant's receipt of the notification of the denial of the application. If the applicant timely requests such a hearing, a public hearing shall be held within fifteen (15) days of the mayor's receipt of such request before the board, at which time the applicant may present evidence as to why the application should not be denied. The board shall hear evidence concerning the basis for denial of the application and shall affirm or reverse the denial of an application at the conclusion of such hearing; any such hearing shall be concluded no later than twenty-two (22) days after the applicant's receipt of notification of denial of an application, unless an extension beyond such time period is requested by the applicant and granted by the board.

(3) If the board affirms the denial of an application, the office of the city attorney for the City of Camden shall institute suit for declaratory judgment in a court of record in such city, within five (5) days of the date of any such denial seeking an immediate judicial determination of whether such application has been properly denied under the law.

(4) The applicant shall be entitled to judicial determination of the issues within two (2) days after the joinder of issue, and a decision shall be rendered by the court within two (2) days of the conclusion of the hearing.

(5) The board shall have the burden of showing that a denial of a license under this section is not arbitrary or capricious. (Ord. #JT9905, Jan. 2000)

9-811. Termination and renewal of licenses—application fees.

(1) Every license issued under this part will terminate at the expiration of one (1) year from the date of issuance, unless sooner revoked, and must be renewed before operation is allowed in the following year. Any operator desiring to renew a license shall make application to the board. The application for renewal must be filed not later than sixty (60) days before the license expires. The application for renewal shall be filed in triplicate with and dated by the board. A copy of the application for renewal shall be distributed promptly by the chair of the board to the applicable chief of police. The application for renewal shall contain such information and data, given under oath or affirmation, as may be required by the board, but not less than the information contained in the original application.

(2) A license renewal fee of one hundred dollars ($100.00) shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty of fifty dollars ($50.00) shall be assessed against the applicant who files for a renewal less than thirty (30) days before the license expires. If the application is denied, one half (½) of the fee shall be returned.

(3) If the police department is aware of any information bearing on the operator's qualifications, the information shall be filed in writing with the board not later than ten (10) days after the date of the application for renewal.
(4) Every permit issued under this part will terminate at the expiration of one (1) year from the date of issuance, unless sooner revoked, and must be renewed before an entertainer is allowed to provide entertainment in an adult-oriented establishment in the following calendar year. Any entertainer desiring to renew a permit shall make application to the board. The application for renewal must be filed not later than thirty (30) days before the permit expires. The application for renewal shall be filed in triplicate with and dated by the board. A copy of the application for renewal shall be distributed promptly by the board to the chief of police. The application for renewal shall be upon a form provided by the board and shall contain such information and data, given under oath or affirmation, as may be required by the board.

(5) A permit renewal fee of fifteen dollars ($15.00) shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty of five dollars ($5.00) shall be assessed against the applicant who files for renewal less than thirty (30) days before the license expires. If the application is denied, one half (½) of the fee shall be returned.

(6) If the police department is aware of any information bearing on the entertainer's qualifications, that information shall be filed in writing with the board not later than ten (10) days after the date of the application for renewal.

(7) Notwithstanding anything herein to the contrary, any application for renewal of a license or for renewal of a permit shall be handled, investigated, and approved or denied within the same time periods as those established in this part for original license applications and permit applications. In the event a license renewal application or permit renewal application is denied, the applicant shall have all rights of appeal to the board as set forth in § 9-810. (Ord. #JT9905, Jan. 2000)

9-812. Prohibited hours of operation—hours open for inspection.
The public portion of all adult-oriented establishments shall be open to inspection at all reasonable times by the applicable police department or such other persons as the board may designate. (Ord. #JT9905, Jan. 2000)

9-813. Duties and responsibilities of operators, entertainers, and employees. (1) The operator shall maintain a register of all employees, showing the name, the aliases used by the employee, home address, age, birth date, sex, height, weight, color of hair and eyes, telephone number, social security number, driver license number, date of employment and termination, and duties of each employee, and such other information as may be required by the board. The above information on each employee shall be maintained in the register on the premises for a period of three (3) years following termination.

(2) The operator shall make the register of employees available immediately for inspection by the board and/or police department upon demand of a member of the board or police department at all reasonable times.
9-28

(3) Every act or omission by an employee constituting a violation of the provisions of this part shall be deemed the act or omission of the operator if such act or omission occurs either with the authorization, knowledge, or approval of the operator, or as a result of the operator's negligent failure to supervise the employee's conduct, and the operator shall be punishable for such act or omission in the same manner as if the operator committed the act or caused the omission.

(4) An operator shall be responsible for the conduct of all employees while on the licensed premises, and any act or omission of any employee constituting a violation of the provisions of this part shall be deemed the act or omission of the operator for purposes of determining whether the operator's license shall be revoked, suspended or renewed.

(5) No employee of an adult-oriented establishment shall allow any minor to loiter around or to frequent an adult-oriented establishment or to allow any minor to view adult entertainment as herein defined.

(6) Every adult-oriented establishment shall be physically arranged in such a manner that the entire interior portion of the booths, cubicles, rooms or stalls, wherein adult entertainment is provided, shall be visible from the common area of the premises. Visibility shall not be blocked or obscured by doors, curtains, partitions, drapes, or any other obstruction whatsoever.

(7) The operator shall be responsible for and shall provide that any room or area used for the purpose of viewing adult-oriented motion pictures or other types of live adult entertainment shall be readily accessible at all times and shall be continuously opened to view in its entirety.

(8) The license shall be conspicuously displayed in the common area of the premises at all times.

(9) A sign shall be conspicuously displayed in the common area of the premises, and shall read as follows: "This Adult-Oriented Establishment is Regulated by the Municipal Code of the City of Camden, Title 9, Chapter 8. Entertainers are:

(a) Not permitted to engage in any type of sexual conduct;
(b) Not permitted to expose their sex organs;
(c) Not permitted to demand or collect all or any portion of a fee for entertainment before its completion;
(d) Not permitted to appear in a state of full nudity."

(10) The permit shall be kept by an employee, entertainer, or escort so that it is readily available for display immediately upon request of a customer, any member of such city police department, and board member, or any person designated by the board. (Ord. #JT9905, Jan. 2000)

9-814. **Prohibited activities.** (1) No operator, entertainer or employee of an adult-oriented establishment shall permit to be performed, offer to perform, perform or allow, patrons to perform sexual intercourse or oral or anal copulation or other contact stimulation of the genitalia.
(2) No


23; 57GA, ch 55, §3]

17.24 Annotations. Books of annotations shall, so far as practicable, be printed and bound in the same manner, form, and style as the Code. [C24, 27, 31, 35, 39, §266; C46, 50, 54, §17.24]

17.25 New editions. New editions of the Code, book of annotations, and reports of the supreme court may be published by the printing board when the supply on hand of the last
edition becomes exhausted and when a new edition is necessary in order to meet the demand. [C24, 27, 31, 35, 39, §267; C46, 50, 54, §17.25]

17.26 Number printed. The number of each edition of the Code, tables of corresponding sections, session laws, annotations, and reports of supreme court shall be determined by the printing board. [C73, §37; C97, §40; C24, 27, 31, 35, 39, §268; C46, 50, 54, §17.26]

17.27 Other necessary publications—when necessary to sell. There may be published other miscellaneous documents, reports, bulletins, books, and booklets that are needed for the use of the various officials and departments of state, or are of value for the information of the general assembly or the public, in form and number most useful and convenient, to be determined by the printing board.

When such publications paid for by public funds furnished by the state, contain reprints of statutes or departmental rules, or both, they shall be sold and distributed at cost by the department ordering same. Such publications shall be obtained from the superintendent of printing on requisition by the department and the selling price shall be determined by the printing board by dividing the total cost of printing, paper and binding by the number printed. Said price shall be set at the nearest multiple of ten to the quotient thus obtained. Distribution of such publications shall be made by the superintendent of printing gratis to public officers, purchasers of licenses from state departments required by statute, and departments. Funds from the sale of such publications shall be deposited monthly in the general fund of the state. [C24, 27, 31, 35, 39, §269; C46, 50, 54, §17.27; 57GA, ch 56, §2]

Additional geological reports, §305.9
Publication of parts of Code, §14.21
Publication of board of control bulletins, §218.46

17.29 Title pages—complimentary insertions. The superintendent of printing shall provide the necessary printer's copy for a suitable title page for each publication requiring such title which shall contain the name of the author, but no such title shall have written or printed thereon or attached thereto the words "Compliments of" followed by the name of the author, nor any other words of similar import. [C24, 27, 31, 35, 39, §271; C46, 50, 54, §17.29]

17.30 Inventory of state property. State officials, boards, commissions and heads of departments, divisions and all agencies of state government shall on or before December 31, 1941, and on or before said date in each year thereafter, file with the secretary of the executive council written detailed inventories of all real and personal property belonging to the state and in their charge or under their control and management or for which they are responsible, such inventories to be made under such rules and regulations and upon such forms as may be prescribed by the executive council. [C46, 50, 54, §17.30]

Referred to in §17.31

17.31 Lists compiled by council secretary. The secretary of the executive council, upon the filing with him of all the inventories, provided for in section 17.30, shall compile therefrom in two subdivisions one complete inventory of all the real and personal property owned by the state, as shown by said inventories. Such compilation shall list all real estate and improvements under one subdivision and the personal property under one subdivision, but classified as to the items included therein.

Such compiled completed inventory shall be revised and enlarged as the subsequent inventories are filed with him as provided in said section. [C46, 50, 54, §17.31]

17.32 Records open to public. Said inventories shall be kept as permanent records in the office of the secretary of the executive council and shall be open for inspection and available for the information of the executive council, all other public officials, and the public, but the executive council shall not incur the expense of printing the same in book or pamphlet form. [C46, 50, 54, §17.32]
CHAPTER 17A
ADMINISTRATIVE RULES AND REGULATIONS

17A.1 Definitions. As used in this chapter the following words and phrases shall have the meanings respectively ascribed to them:

1. “Administrative agency” or “agency” means each state board, commission, bureau, division, or department, other than a court, having statewide jurisdiction.

2. “Person” includes individuals, associations, partnerships, and corporations.

3. “Rules and regulations” includes rules, regulations and amendments thereto of general application and rules of administrative procedure issued under authority of law but shall not include rules and regulations adopted relating solely to the internal operation of the agency nor to rules and regulations adopted relating to the management, discipline, or release of any person committed to any state institution, nor such rules and regulations of the state department of health as may be necessary during emergencies such as floods, epidemics, invasion, or other disasters. [C54, §17A.1]

17A.2 Procedure to make rules. Wherever in the statutes any administrative agency is empowered to make rules and regulations, said agency shall proceed as follows:

1. A copy of the proposed rule or regulation before adoption shall be forwarded to the attorney general who shall, within twenty days, approve or disapprove of the form and legality thereof.

2. Upon such approval by the attorney general the agency may adopt the rule or regulation and shall cause a copy thereof to be filed in the office of the secretary of state.

3. If the attorney general disapproves of the form or legality of any proposed rule or regulation he shall state in writing his reasons therefor, and the administrative agency shall then not proceed until the reasons for his objections have been removed. If the attorney general fails to approve or disapprove within twenty days the agency may proceed as though he had approved. [C54, §17A.2]

17A.3 Rules enrolled. When a rule or regulation adopted as provided in section 17A.2 is filed in the office of the secretary of state, he shall make an original copy thereof in substantially the same manner that acts of the general assembly are enrolled, indorse thereon the time and date of filing in his office, and deposit and index the same in the files of his office. [C54, §17A.3]

17A.4 Copy to Code editor. The secretary of state shall furnish a copy of every rule and regulation, filed in his office, to the Code editor. [C54, §17A.4]

17A.5 Copies mailed. Each administrative agency shall mail a copy of each of its rules and regulations to the office of the clerk of each district court, to the secretary of the state bar association, to each district and supreme court judge, and to any person requesting same. [C54, §17A.5]

17A.6 Petition for reconsideration. Any group of twenty or more persons substantially interested or affected in their rights of person or property by a rule or regulation adopted by any administrative agency may petition to the attorney general for a reconsideration of such rule or regulation or for an amendment or modification thereof. Such petition shall set forth a clear, concise description of the facts and the grounds upon which such action is sought. Upon filing of such petition the attorney general shall cause the agency to grant the petitioners a public hearing. The agency shall give thirty days notice of the time and place of such hearing to said petitioners by registered mail. [C54, §17A.6]

17A.7 Effect of former rules. Within six months after July 4, 1951 every administrative agency shall file its rules and regulations, existing on that date in the office of the secretary of state, who shall proceed therewith as provided in sections 17A.3 and 17A.4. After the expiration of said period any rule or regulation not so filed shall be of no further force or effect. [C54, §17A.7]

17A.8 Publishing limited rules. Each administrative agency promulgating professional and regulatory examining and licensing rules and regulations and each agency promulgating rules and regulations of limited application shall cause the same to be published in pamphlet form for distribution upon demand. [C54, §17A.8]

1


1 Cal. L. Rev. 1471, 1476 (1993) (noting that under the prior system, prosecutors' control of the charge meant control of the sentence, which significantly increased the likelihood of a plea). But see Jennifer L. Mnookin, *Uncertain Bargains: The Rise of Plea Bargaining in America*, 57 Stan. L. Rev. 1721, 1739-40, 1740 n.32 (2005) (book review) (stating that *Blakely* and *Booker* will not necessarily result in increased number of trials, because pressures to dispose of high volume of cases will remain; also, plea rates have always been high even in states with indeterminate sentencing).

\(^8\) Among respondents in jurisdictions with mandatory or presumptive guidelines, eighty-two percent indicated that appeals of sentences have increased after *Blakely* and *Booker*. See *infra* app. B (question 4).

\(^8\) Attorney General Alberto Gonzales, Sentencing Guidelines Speech (June 21, 2005), available at [http://www.usdoj.gov/ag/speeches/2005/06212005victimsofcrime.htm](http://www.usdoj.gov/ag/speeches/2005/06212005victimsofcrime.htm). ("We risk a return to the pre-guidelines era, when defendants were encouraged to 'play the odds' in our criminal justice system, betting that the luck of the draw—the judge randomly assigned to the case—might result in a lighter sentence.").

\(^8\) E.g., E-mail from Joshua Marquis, Vice President, National Association of District Attorneys, to Tom Lininger, Assistant Professor, University of Oregon School of Law (Nov.
The number of victims must undergo cross-examination, especially now that *Crawford* has made accusers virtually indispensable in criminal prosecutions.

Not only do the new sentencing rules increase the likelihood of trial, but they also necessitate victims’ testimony on a wider range of issues. Before the Supreme Court insisted that the jury make findings of fact to support statutory sentencing enhancements, the prosecution typically submitted these issues at a sentencing hearing in which the judge was the sole fact-finder. The defendant generally had no confrontation rights in these hearings. The rules of evidence usually did not apply. The standard of proof was lower than in a trial. Often the testimony of the victim was not necessary at a sentencing hearing under the old rules, because hearsay was much easier to admit than at trial. *Blakely* necessitates a more exacting process for proving the predicate facts in order to seek a sentencing enhancement. Basically, *Blakely* has lengthened the most difficult phase of the proceeding for accusers—the portion in which accusers must testify before the jury, subject to all the rules of evidence and the rigorous cross-examination allowed at trial.

Prosecutions of domestic violence and sexual assault will definitely feel the effect of the new sentencing regime, because many states have created...

---

89. *See* Stephanos Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1177-79 (2001) (noting that, as of 2001, judges were generally the primary fact-finders in sentencing of noncapital cases).

90. *Id.* at 1178.

92. Bibas, *supra* note 89, at 1152-53 (noting that pre-*Blakely*, the standard of proof was preponderance of the evidence).

93. For example, a police officer’s testimony regarding a victim’s excited utterance would be a sufficient basis on which to impose a sentencing enhancement in the pre-*Crawford*, pre-*Blakely* era. *See* Fed. R. Evid. 803(2), 1101(d)(3).

94. Among respondents to this Article’s survey, seventy-two percent believed that the sentencing procedures necessitated by *Blakely* and/or *Booker* would lengthen the testimony of accusers and victims before the jury, as compared with the period preceding June 2004. *See infra* app. B (question 8).

95. This Article’s survey found that among the states establishing bifurcated jury proceedings in the wake of trial, fifty percent apply the state’s evidence code to the jury proceedings regarding sentencing issues. *See infra* app. B (question 7).

special sentencing enhancements for such cases. The following factors could form the basis for an increase in the maximum sentencing range: the youth of the victim, the defendant's use of a weapon, the severity of injury caused by the defendant, the defendant's deliberate cruelty or other aggravating mental state, the pregnancy of the victim (whether preexisting or caused by the defendant), the presence of a child witness, and the defendant's recidivism.

Indeed, Blakely itself involved a sentencing enhancement for "deliberate cruelty" in a domestic violence case. Were the Blakely case retried in Washington State under the new procedure approved by the state's legislature in April 2005, a jury would need to hear evidence regarding the defendant's "deliberate cruelty" and any other sentencing enhancements at the same time that the jury adjudicated the defendant's guilt or innocence—requiring more testimony at trial by every witness (including the victim) whose evidence would be necessary to support the sentencing enhancements.

In sum, Blakely and Booker require accusers to work harder at trials and sentencing hearings. Accusers will need to testify more often, and a higher

98. Blakeley v. Washington, 124 S. Ct. 2531, 2534-35 (2004). The defendant had kidnapped his wife and forced her into a coffin-like box before transporting her a great distance. Id.

99. The Blakely case actually did not require retrial because the defendant had entered a guilty plea. Figure in Sentencing Case Gets 35 Years, Columbian (Vancouver, WA), Mar. 25, 2005, at C2.

100. As a result of Blakely and Washington's new Senate Bill 5477, the factual basis for sentencing enhancements must be proven to the jury during the underlying trial, except in very narrow circumstances. Amala & Laurine, supra note 83, at 1140-41.
proportion of their testimony will be subject to the rules of evidence than in the era before 2004.

B. Erosion of Evidentiary Privileges for Accusers

Several privileges that previously shielded accusers have become more fragile in recent years. One example is the spousal testimonial privilege. When applicable, this privilege allows a witness to refuse to testify against her spouse. Due to the complex psychological milieu in a domestic violence case, many victims may wish to invoke this privilege when called to testify against their spouses. Advocates of mandatory prosecution have urged that the spousal testimonial privilege should not apply in prosecutions of violence committed by one spouse against another. This proposal met with significant resistance in the 1990s, but eventually more and more states adopted domestic violence exceptions to the spousal testimonial privilege, and by 2005 such exceptions were universal. Now a victim who has suffered domestic violence or rape at the hands of her spouse may not decline to testify on the ground that she is married to the defendant.

The privilege against self-incrimination has weakened as well. Victims of domestic violence and sexual assault sometimes wish to "take the Fifth" for a variety of reasons: They fear that their inconsistent statements over

101. Mueller & Kirkpatrick, supra note 13, § 5.31. In most states, the witness is the holder of the privilege. Pamela A. Haun, The Marital Privilege in the Twenty-First Century, 32 U. Mem. L. Rev. 137, 158 (2001) (noting that a majority of states with a spousal privilege permit only the witness spouse to assert the privilege). In other words, the witness can elect to testify whether or not her spouse approves. By contrast, the marital communication privilege, which shields confidential communications between spouses during marriage, only yields when both spouses approve disclosure.

103. Renee L. Rold, All States Should Adopt Spousal Privilege Exception Statutes, 55 J. Mo. B. 249, 251-52 (1999) (explaining advantages and disadvantages of these statutes).

104. E.g., Anita K. Blair, Domestic Violence: Should Victims Be Forced to Testify Against Their Will?, A.B.A. J., May 1996, at 77. "Mandatory waiver of spousal privilege goes too far. Advocates of mandatory waiver aren't interested in victims' rights; if they were, they would respect a woman's right to invoke her privilege not to testify. . . . A married woman who wants to stay married might have many good reasons not to want to testify against her husband."

Id.

106. Mosteller, supra note 28, at 609 n.550 (noting that by 2005, all states recognizing the spousal testimonial


NANCY WELSH

S/T MEDIATION THEORY 7900-613

NANCY WELSH

S/T NATURAL RESOURCE 7900-615

GABRIEL ECKSTEIN

No requirements for purchase.

S/T PRIVACY LAW 7900-617

BRIAN HOLLAND

Information Privacy Law 6ed
9781454892755
Wolters Kluwer
244.00
Solove, Schwarz

S/T PRIVATE INTL LAW 7900-612

WILLIAM HENNING

S/T TEXAS WATER LAW 7900-624

GABRIEL ECKSTEIN

Prof. Eckstein has made arrangements with Texas Bar Books to provide his students free electronic access to “Essentials of Texas Water Resources 4th”. He will provide that access info to all registered students by early January. Students who inquire at the Book Store will be directed to Prof. Eckstein, although students should check their email as he will send it mid/late December.

S/T TRANSFER PRICING 7900-

WILLIAM BYRNES

S/T TRIAL ADVOCACY: CRIM 7900-635

VASSER

SECURED TRANSACTIONS 7488
WILLIAM HENNING

Understanding Secured Transactions 5ed
ISBN: 9781579110321
New: 49.00 Used: 35.00

Select Commercial Law Statutes 2017
ISBN: 9781683287551
New: 62.00 Used: 45.00

SECURITIES REGULATION 7492
NEAL NEWMAN

Securities Regulation 8ed
ISBN: 9781609304133
New: 222.00 Used: 160.00

Securities Regulation Statutory Supplement 2017
ISBN: 9781683286370
New: 44.00

SPANISH FOR LAWYERS 7487
TBA

TAX BUSINESS ENTITIES 7516
GARY LUCAS

Fundamentals of Business Enterprise Taxation 6ed
ISBN: 9781634596039
New: 225.00 Used: 160.00

Logic of Subchapter K: A Conceptual Guide to Taxation of Partnerships 5ed
ISBN: 9781634604727
New: 92.00 Used: 68.00

Selected Federal Taxation Statutes, & Regulations 2018
ISBN: 9781683288077
New: 61.00 Used: 45.00

TEXAS CRIM LAW PRACT 7725
JACK STRICKLAND

You will need, or have access to:
Texas penal Code
Texas Code of Criminal Procedure
Texas Rules of Evidence
Texas Disciplinary Rules of Professional Conduct

TEXAS CRIM PROCEDURE 7532
CHARLES MALLIN

Texas Criminal Procedure 12ed
Reamy, Bubany

ISBN
Title
Publisher
Price (New)
Price (Used)

9781532309991
Criminal Laws of Texas 2017-2019
Beckham
New: 90.00
Used: 65.00

9781934973028
Texas Pre-Trial 7540
TDCAA
New: 95.00

9781931000516
Texas Trials & Appeals 7548
Albright
New: 103.00

9781598392586
Texas Civil Trials 2017
O'Connor's
Strongly recommended: New: 106.00

9781546203261
Texas Trust Law 3ed
Beyer
New: 45.00

9781496964274
Wills & Estates 7076
Beyer
New: 28.00
Used: 20.00

9781546203261
Texas Estate Planning Statutes w/Commentary 2017-2019
Author House
New: 45.00

<|endoftext|>Child Sexual Abuse in India and the Protection of Children from Sexual Offences (POCSO) Act 2012: A Research Review

Renu*, Geeta Chopra**

*Assistant Professor, Institute of Home Economics, University of Delhi. Delhi-110016, India
**Associate Professor, Institute of Home Economics, University of Delhi, Delhi-110016, India

Received: Date of submission: 30th May, 2019 Accepted on: 2nd July, 2019 Published on: 29th July, 2019

ABSTRACT

Child Sexual Abuse (CSA) is most heinous crime against children and in most instances, it is hidden in nature. It is the most under reported crime. The effect of CSA lingers across the lifetime of an individual. It is now being recognized as toxic stress which emotionally can harm the child irreparably. This paper presents studies on CSA in India. The Protection of Children from Sexual Offences (POCSO) act was enacted in 2012. POCSO has many difficulties in implementation. The paper also presents the researches done on POCSO putting across issues related to mandatory reporting, consensual sex, doctors preparedness for handling CSA victims, and status of special courts under POCSO.

Keywords: CSA, POCSO, mandatory reporting, age of consent, special courts

1. Introduction

Child sexual abuse is widely prevalent, yet hardly reported. In the name of culture and tradition, at times, sexual violence against children is covered up, ignored or not reported. A protected child is a potential national resource whereas exploited child can become victim first and then an offender. Safety, security, harmony, loves and care is what a child needs to grow fully and to accomplish his/her full potential.

Traditionally, in India, children were valued and pampered. But for some children truth was different they were sexually abused in the name of customs and folk practices. For example, in southern parts of India child prostitution was present in the name of ‘devadasi’. Devadasi is a girl child dedicated to worship and service of a deity. Today the truth and reality for CSA is reached to its worst level (Chopra, 2015). India is a highly diverse country. Indian culture is a combination of multiple religions, languages, different traditions, ethnicities


 to gather and present relevant evidence on their own.

The investigation is a party’s opportunity to present testimonial and other evidence that the party believes is relevant to resolution of the allegations in the Formal Complaint. A party that is aware of and has a reasonable opportunity to present particular evidence and/or identify particular witnesses during the investigation, and elects not to, will be prohibited from introducing any such evidence during the adjudication absent a showing of mistake, inadvertence, surprise, or excusable neglect.

C. Documentation of Investigation

The investigator will take reasonable steps to ensure the investigation is documented. Interviews of the parties and witnesses may be documented by the investigator’s notes, audio recorded, video recorded, or transcribed. The particular method utilized to record the interviews of parties and witnesses will be determined by the investigator in the investigator’s sole discretion, although whatever method is chosen shall be used consistently throughout a particular investigation.

D. Access to the Evidence

At the conclusion of the evidence-gathering phase of the investigation, but prior to the completion of the investigation report, the Investigating Officer will transmit to each party and their advisor, in either electronic or hard copy form, all evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including
evidence the University may choose not to rely on at any hearing and inculpatory or exculpatory evidence whether obtained from a party or some other source. Thereafter, the parties will have ten (10) days in which to submit to the investigator a written response, which the investigator will consider prior to completing the investigation report.

The parties and their advisors are permitted to review the evidence solely for the purposes of this grievance process and may not duplicate or disseminate the evidence to the public.

E. Investigation Report

After the period for the parties to provide any written response as specified “Access to Evidence” has expired, the investigator will complete a written investigation report that fairly summarizes the various steps taken during the investigation, summarizes the relevant evidence collected, lists material facts on which the parties agree, and lists material facts on which the parties do not agree. When the investigation report is complete, the investigator will transmit a copy to the Title IX Coordinator. The investigator will also transmit the investigation report to each party and their advisor, in either electronic or hard copy form.

XVI. ADJUDICATION PROCESS SELECTION

After the investigator has sent the investigation report to the parties, the Title IX Coordinator will transmit to each party a notice advising the party of the two different adjudication processes specified in “Adjudication.” The notice will explain that the hearing process specified in “Hearing Process” is the default process for adjudicating all Formal Complaints and will be utilized unless both parties voluntarily consent to administrative adjudication as specified in “Administrative Adjudication (Optional)” as a form of informal resolution. The notice will be accompanied by a written consent to administrative adjudication and will advise each party that, if both parties execute the written consent to administrative adjudication, then the administrative adjudication process will be used in lieu of the hearing process. Parties are urged to carefully review this policy (including the entirety of “Adjudication”), consult with their advisor, and consult with other persons as they deem appropriate (including an attorney) prior to consenting to administrative adjudication.

Each party will have three (3) days from transmittal of the notice specified in this Section to return the signed written consent form to the Title IX Coordinator. If either party does not timely return the signed written consent, that party will be deemed not to have consented to administrative adjudication and the Formal Complaint will be adjudicated pursuant to the hearing process.

XVII. ADJUDICATION

A. Hearing Process

The default process for adjudicating Formal Complaints is the hearing process specified in this Section (“Hearing Process”). The hearing process will be used to adjudicate all Formal Complaints unless both parties timely consent to administrative adjudication as specified in “Adjudication Process Selection.”
1. Hearing Officer

After selection of the hearing process as the form of administrative adjudication, the Title IX Coordinator will promptly appoint a hearing officer who will oversee the hearing process and render a determination of responsibility for the allegations in the Formal Complaint, at the conclusion of the hearing process. The Title IX Coordinator will see that the hearing officer is provided a copy of the investigation report and a copy of all evidence transmitted to the parties by the investigator as specified in "Access to Evidence."

2. Hearing Notice and Response to the Investigation Report

After the hearing officer is appointed by the Title IX Coordinator, the hearing officer will promptly transmit written notice to the parties notifying the parties of the hearing officer’s appointment; setting a deadline for the parties to submit any written response to the investigation report; setting a date for the pre-hearing conference; setting a date and time for the hearing; and providing a copy of the University’s Hearing Procedures. Neither the pre-hearing conference, nor the hearing itself, may be held any earlier than ten (10) days from the date of transmittal of the written notice specified in this Section ("Hearing Notice and Response to the Investigation Report").

A party’s written response to the investigation report must include:

- To the extent the party disagrees with the investigation report, any argument or commentary regarding such disagreement;
- Any argument that evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, the prohibition on the use of sexual history specified in “Sexual History,” or for any other reason;
- A list of any witnesses that the party contends should be requested to attend the hearing pursuant to an attendance notice issued by the hearing officer;
- A list of any witnesses that the party intends to bring to the hearing without an attendance notice issued by the hearing officer;
- Any objection that the party has to the University’s Hearing Procedures;
- Any request that the parties be separated physically during the pre-hearing conference and/or hearing;
- Any other accommodations that the party seeks with respect to the pre-hearing conference and/or hearing;
- The name and contact information of the advisor who will accompany the party at the pre-hearing conference and hearing;
• If the party does not have an advisor who will accompany the party at the hearing, a request that the University provide an advisor for purposes of conducting questioning as specified in “Hearing.”

A party’s written response to the investigation report may also include:

• Argument regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence; and

• Argument regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.

3. Pre-Hearing Conference

Prior to the hearing, the hearing officer will conduct a pre-hearing conference with the parties and their advisors. The pre-hearing conference will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the pre-hearing conference will be conducted with the hearing officer, the parties, the advisors, and other necessary University personnel together in the same physical location. However, upon request of either party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio.

In the hearing officer’s discretion, the pre-hearing conference may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.

During the pre-hearing conference, the hearing officer will discuss the hearing procedures with the parties; address matters raised in the parties’ written responses to the investigation report, as the hearing officer deems appropriate; discuss whether any stipulations may be made to expedite the hearing; discuss the witnesses the parties have requested be served with notices of attendance and/or witnesses the parties plan to bring to the hearing without a notice of attendance; and resolve any other matters that the hearing officer determines, in the hearing officer’s discretion, should be resolved before the hearing.

4. Issuance of Notices of Attendance

After the pre-hearing conference, the hearing officer will transmit notices of attendance to any University employee (including administrator, faculty, or staff) or student whose attendance is requested at the hearing as a witness. The notice will advise the subject of the specified date and time of the hearing and advise the subject to contact the hearing officer immediately if there is a material and unavoidable conflict.

The subject of an attendance notice should notify any manager, faculty member, coach, or other supervisor, as necessary, if attendance at the hearing will conflict with job duties, classes, or other obligations. All such managers, faculty members, coaches, and other supervisors are required to excuse the subject of the obligation, or provide some other accommodation, so that the subject may attend the hearing as specified in the notice.
The University will not issue a notice of attendance to any witness who is not an employee or a student.

5. Hearing

After the pre-hearing conference, the hearing officer will convene and conduct a hearing pursuant to the University’s Hearing Procedures. The hearing will be audio recorded. The audio recording will be made available to the parties for inspection and review on reasonable notice, including for use in preparing any subsequent appeal.

The hearing will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the hearing will be conducted with the hearing officer, the parties, the advisors, witnesses, and other necessary University personnel together in the same physical location. However, upon request of either party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio.

In the hearing officer’s discretion, the hearing may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.

While the Hearing Procedures and rulings from the hearing officer will govern the particulars of the hearing, each hearing will include, at a minimum:

- Opportunity for each party to address the hearing officer directly and to respond to questions posed by the hearing officer;
- Opportunity for each party’s advisor to ask


interview information, included in assessment report

29 July: Draft list of interviewees and list of interview questions exchanged for feedback August: Interviews
1. Draft list of interviewees 2. Finalise interview questions 3. Conduct interviews and compile information
1. Draft interview questions 2. Feedback on list of interviewees

Focus group discussions
Focus group report, included in assessment report

5 August: Draft focus group questions September: Focus groups with staff October: Focus groups with students
1. Finalise focus group questions 2. Jointly conduct focus groups 3. Review focus group report
1. Draft focus group questions 2. Jointly conduct focus groups 3. Draft focus group report (2,500 words)

Objective
Activity
Output
Deadline
Budget Items
SSI Responsibility
Consultant responsibility
Indicators and means of verification
Risks and responses

-----------
----------
--------
----------
--------------
-------------------
--------------------------
-----------------------------------
-------------------

APPENDIX 3: ADVICE ON CONDUCTING INTERVIEWS

Preparation is the key to conducting an interview successfully. Interviewers should ensure that they are well prepared. Before the interview, the interviewer should:

- prepare the interview environment (office or meeting room), and eliminate distractions, phone calls, conflicting appointments
- review the interview questions to ensure they are sensitive to the interviewee’s place in the hierarchy of the institution and tailored accordingly.

The following steps ensure a sense of direction and control during the interview.

What to do
How to do it

1. Develop rapport
• Break the ice with appropriate non-threatening topics<br>• Be friendly but avoid excessive small talk<br>• Present interview agenda/timing<br>• Let the interviewee know you will take notes

2. Control the interview
• Prevent rambling and unrelated discussions<br>• Make sure the interviewee answers your questions<br>• Use silence rather than avoid it: let the person think!

3. Gather information
• Use a variety of questions and question types<br>• Do not speak less than 10% or more than 25% of the time<br>• Rephrase questions if answers are not clear<br>• Be candid with your questions

4. Seek a balanced picture
• Avoid getting a one-sided picture of the situation<br>• Ask questions to get a balanced picture<br>• Ask for strengths and weaknesses, positives and negatives

5. Take notes
• Get key ideas/information and fill in details later

6. Deal with questions
• Make sure you give enough information to clarify<br>• Do not answer questions if you feel they are inappropriate

7. Close the interview
• Discuss the next steps in the gender self-assessment<br>• Give timeframe for future contact<br>• Leave door open to seek further clarification if needed

8. Complete your notes
• Right after the interview, complete your notes to record examples, anecdotes or any areas for further probing

APPENDIX 4: SAMPLE GUIDELINES FOR A FOCUS GROUP

1. INTRODUCTION: OBJECTIVES OF THE GENDER SELF-ASSESSMENT

The institution is undertaking a gender self-assessment. This aims to make the institution more gender responsive, by working out what we are doing well and where we might improve. Self-assessment looks at how the institution is working across a range of factors:

- performance effectiveness
- laws, policies and planning
- community relations
- accountability and oversight
- personnel
- institutional culture.

To undertake the institutional self-assessment we have worked at a number of different levels:

- review of documentation
- questionnaires
- interviews
- field visits.

2. OBJECTIVE OF FOCUS GROUP

To have the opportunity to raise a few issues relating to gender relations and structures within the institution, and how gender is addressed in the services the institution provides to the community.

3. A NUMBER OF SHORT PARTICIPATORY EXERCISES (IN TIME AVAILABLE)

3i. Most important gender issues in country today?
   - Listing
   - Ranking

3ii. Institution’s gender policy
   - Definitions of gender and gender mainstreaming
   - Clarification of gender mainstreaming →
     - Objective – gender equality
     - Strategy
     - Ensuring both women’s and men’s needs and interests are integrated into service provision and operations
     - Empowering women through participation and in decision-making
   - Outcome – gender equality and women’s empowerment

4. DISCUSSION ABOUT GENDER RESPONSIVENESS OF SERVICE PROVISION

‘Strengths, weaknesses, opportunities and threats’ (SWOT) exercise to explore:

- main institutional strengths to be gender responsive in service provision
- main weaknesses in being gender responsive in service provision
- main opportunities that we can make use of
- main constraints that we need to overcome.

5. DISCUSSION ABOUT GENDER AND INSTITUTIONAL CULTURE

Facilitated discussion of the following questions.

- What gender issues do you think are important within the institution itself?
- What are working relations between men and women like?
- Why aren’t there more women at senior levels?

6. OPEN DISCUSSION

---

10 These guidelines were adapted from Moser, C., *An Introduction to Gender Audit Methodology: Its Design and Implementation in DFID Malawi* (London: Overseas Development Institute, 2005), pp. 32–33.
APPENDIX 5: SAMPLE TEMPLATE FOR A GENDER SELF-ASSESSMENT REPORT

Table of contents

Executive summary – highlights main points of report including background, methodology and process, and main conclusions and recommendations

Acknowledgements – people instrumental in promoting or organising the self-assessment and carrying it out

List of abbreviations and acronyms

Introduction – purpose of the institutional self-assessment and report, background to self-assessment including dates and process

Methodology – how assessment was designed, how information was collected and analysed

Main findings under each theme, including strengths and challenges:
  • performance effectiveness
  • laws, policies and planning
  • community relations
  • accountability and oversight
  • personnel
  • institutional culture

Good practices – these can be included under findings, but it can be useful to create a separate section to highlight them

Recommendations – if the terms of reference for the assessment foresee making recommendations

Annexes – including list of documents reviewed; list of interviewees; list of focus groups held; copy of any questionnaires used

APPENDIX 6: SAMPLE TEMPLATE FOR A GENDER ACTION PLAN

Your organisation may already use an action planning tool that can be adapted for your gender action plan. Doing so may have the advantage that staff already understand how the planning tool works, and there may already be systems in place for monitoring and reporting on progress.

This gender action plan template is provided as an example of the elements that should be included in a gender action plan. It can be adapted to suit your organisation.

Area of work
Activities [sample]
When
Where
Responsible party
With whom
Resources
Monitoring and reporting
Evaluation

Performance effectiveness
Achieve 100% follow-up of complaints of domestic violence
By end 4th quarter 2012
All offices
Chief constables
Training unit, community organisations
Core time, materials
Quarterly; meeting of chief constables
Data on follow-up of complaints

Laws, policies and planning
Create inter-departmental gender team with terms of reference (TORs)
January 2012
All offices
National and regional heads of department
Human resources
Core time
Monthly; meeting of heads of department
Approved TORs

Update gender policy
Achieve 100% follow-up of complaints of domestic