Introduction to Criminalisation

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'Criminalization is the process of identifying an act deemed dangerous to the dominant social order and designating it as criminally punishable'.[1] There are a number of key concepts in the process of criminalisation:

  • Ensuring there is no 'over-criminalisation' (ie, making too many things criminal).
  • The deceptive commonsense views of crime (that you can tell a crime simply through commonsense). In particular, commonsense usually results in fallacious impressions such as:
    • That crime is getting worse and worse.
    • That more police with more power and stricter punishments will reduce crime.
    • That crime problems are criminal justice problems (ie, faults of the police and courts) rather than societal problems (eg, unemployment leads to crime).
  • Historical and cultural relativity - notions of crime vary through time and cultures and things which are criminal/non-criminal now might not have been so in a different time or place (eg, homosexuality and atheism used to be crimes and still are in some cultures. Drugs used to be legal).
  • Crime is incredibly difficult to define. Most definitions have proved inadequate or vacant concepts.
  • The production of knowledge - processes and management of knowledge production within the institutions of criminal law (or even universities) affect what sorts of information emerges for the public. This has significant implications.
    • Crime statistics are collected by various agencies.
    • However, a lot of crimes goes unreported.

This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 41-58.

Introduction

[2] What is criminal, what ought to be criminal, what factors affect the processes of criminalisation? There are two perspectives:

  • Crime is determined by looking at the behaviour itself
  • Crime is determined by looking at the social response

According to Lacey, something being a crime should not be taken as a given in society, since it is difficult to define, and societal constructions of what constitutes criminal behaviour change over time and context.[3]

S Cohen remarks that:[4]

  • 'Criminalization is the process of identifying an act deemed dangerous to the dominant social order and designating it as criminally punishable.'
  • 'In principle... an act cannot demonstrate a little of both properties. Strictly speaking, there cannot be degrees of criminality'
  • Crime is a social construct, varying historically and culturally, and as such, concern is directed to the virtual disappearance of decriminalisation from the agenda.
  • Unlike social norms that we know as subtle, continuous, and negotiable, we start to talk about a dichotomous variable, crime/non-crime.

The notion of overcriminalisation (making too many things criminal) was discussed by D Husak:[5]

  • There are far too many criminal laws, leading to the body of law as a whole being beyond the comprehension of the lay persons who are ultimately held to account.
  • In addition, punishment is often excessive and unjust, and a lot of things are criminal which shouldn't be.

Commonsense

[6] A commonsense response to the question of what is crime is that everyone knows a crime if they see one. However, this is deceptive. There is more to crime than a 'common-sense' perspective suggests.

  • Even so-called 'core crimes' have obscure aspects.
  • Murder is regarded as a central example of a crime, yet accidental killings and killings in self-defence are often rather controversial with respect to the fact that they do not attract criminal sanctions.
  • This is illustrated in the 1987 decision of the High Court to abolish the partial defence of 'excessive' self-defence, with some killings previously classified as manslaughter now regarded as murder.
  • Similarly, Ngaire Naffine argues that 'core crime' of rape is 'not criminal in a practical sense' given the low reporting and high attrition rates.

The commonsense view of crime tends to form the unquestioned basis of much public and policy debate around crime. The (wrongful) impressions which usually make up the commonsense law and order are listed by Hogg & Brown:[7]

  • Soaring crime rates
    • The rate of homicide and other serious crimes is actually decreasing.
  • 'Things are worse than ever'.
  • The criminal justice system is 'soft on crime' and does not protect citizens.
    • Our imprisonment rate in NSW has actually doubled since the early 1990s.
  • The 'solution' is more police with more powers.
    • Actually, no relationship has been determined between more police and lower crime rates.
  • We need 'tougher penalties'.
    • Actually, many penalties could hardly be tougher.
  • Victims should be able to get revenge through the courts.

As such, the general perception of the commonsense approach is that crime problems are 'criminal justice problems, and that agencies such as the police are hampered in their duties through inadequate powers, insufficient resources and the like.

  • However, in order to effectively reduce crime, greater attention needs to be directed towards the social problems which actually cause it (ie, improve education, better welfare etc).

Historical Relativity and Change

[8] Dimensions that contribute to what is criminal or not, change and are in constant evolution:

  • Historical relativity: ideas of what is criminal change over time. Examples include:
    • Homosexuality has become de-criminalized over time
    • Domestic violence has become criminalized after the turn of the 19th century.
    • Other examples of “crimes” that have changed over time:
      • Drug abuse
      • Violence
      • Rape
      • Consent and adultery
      • Prostitution
  • Social relativity: Society shape/determine what is criminal based on social 'calls' of what need to be criminal or non-criminal. Examples include:
    • Homosexuality
    • Graffiti
  • Political relativity: Criminal law can be used as a tool for political strategy. This is evident during election periods.
  • Cultural Relativity: In one country something may be criminal, but not in another due to cultural differences such as religious backgrounds. For example:
    • Views concerning adultery and polygamy
    • Animal treatment

EP Evans discusses how insects used to be prosecuted and punished by law.[9] This would be ridiculous today and therefore shows the change in the notions of crime between different eras. Three points can now be made

  1. The common sense view that everyone knows a crime when the see one is inadequate.
  2. The content of criminal laws and the forms of criminal agency are constantly changing.
  3. The wide variety of behaviour treated as criminal by the law at any given time suggests that attempts to distil any common essence of criminal conduct will prove extremely difficult, if not impossible.

Defining Crime

[10] The attempt at defining crime, as seen above, is problematic. It is even more difficult when considering the range of 'regulatory offences' (parking offences, industrial safety etc). Their classification as 'regulatory' (and the fact they have no jail time and are not in the Crimes Act) indicates ambivalence about their status, but are they crime too?

G Williams defined crime as:[11]

  • A crime is a legal wrong that can be followed by criminal proceedings which may result in punishment, or an act that is condemned to the extent that authorities have declared it as punishable.
  • Given that punishment will almost inevitably be attached to behaviour defined as criminal, there ought to be good reasons why a given form of behaviour should be classified as criminal.
  • The potential effects and side-effects of a criminalisation approach must be considered.

Williams' conception of crime is sometimes said to be a vacant concept: it ignores the complex factors in which something is criminalised in any point in time. It is still incredibly hard to know what constitutes a crime. Andrew Ashworth criticises the lack of guiding principles in the nature of criminal offences:[12]

  • The sheer bulk of (English) criminal law prevents conformity to any single set of related tests which can define what makes a crime.
  • The government professes some principles/considerations for criminalisation (as per Lord Williams of Mostyn):
    • The behaviour in question is sufficiently serious to warrant intervention by the criminal law
    • The mischief cannot be effectively dealt with by existing legislation or other remedies
    • The proposed offence is enforceable, tightly drawn and legally sound
    • The proposed penalty is in line with the seriousness of the offence.
  • However, laws enacted often do not bear great resemblance to these supposed principles.

Cross-Cultural Perspectives

[13] Through examining societies other than our own, the commonsensical definitions of crime can be further discounted. As stated by C Geertz, the 'law is local knowledge not placeless principle and...is constructive of social life not reflective'.[14] In this manner, by considering what other societies regard as criminal behaviour, and how they deal with such behaviour, we are able to gain insights into crime and criminalisation in our own.

The Production of Knowledge

[15] The processes and management of knowledge production within the institutions of criminal law (or even universities) affect what sorts of information emerges for the public. This has significant implications.

This is discussed by R Hogg in "Perspectives on the Criminal Justice System":[16]

  • Routinely produced knowledge about crime and the crime-fighting role of the agencies provides the raw material for the models or theories of criminal justice.
  • These methods of knowledge production must be deconstructed. Otherwise, we have only a narrow conception of reform and a limited understanding of how criminal justice studies relate to police and political processes.
  • Power operates in and alongside the processes of knowledge formation.

Murray Lee emphasises the role of 'fear' in the production of knowledge:[17]

  • 'We are now so obsessed with crime fear that our police force sees its reduction as almost as important as the reduction of crime itself. [The fear of crime demonstrates] the unintended consequences and power effects of both social enquiry and political rationalities.'

Criminal Statistics

[18] Statistics provide a rich source of understanding:

  • Criminal law
  • Resource allocation
  • Legislation effectiveness
  • Education
  • Crime prevention expenses

However, criminal statistics are themselves a social construction, produced by the interaction of a large number of elements including a concept of crime and discovery methods, rather than the measurement of 'real' levels of crime. In addition, different statistical collections measure different things.

The main categories of official criminal statistics are:

  • Police statistics (crimes recorded by the police).
  • Court statistics (records of persons charged and the outcomes of hearings).
  • Prison statistics (persons imprisoned).
  • Self-report studies (surveys asking people if they have committed criminal offences).
  • Victimisation surveys (surveys asking people whether they have been the victims of crime).

Unreported Crime

[19] Victim surveys serve as a useful mechanism to measure the incidence of crime on a broader level than 'crimes known to the police'. However, there are significant dangers in relying on crime victim surveys to solve the 'gap' between crimes reported to the police and unreported crime.

  • For example, if a victim of sexual assault does not report to the police, then such a person is also often unlikely to report it to the victim's surveys.
  • In addition, studies in Australia have noted a significant disparity between the number of crimes recorded by the police, and the number of crimes that victims believe they have reported.

End

This is the end of this topic. Click here to go back to the main subject page for Crime & the Criminal Process.

References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. S Cohen, Against Criminology (1988) 256-8 in Textbook, pp. 42-43.
  2. Textbook, p. 41.
  3. N Lacey, 'Legal Construction of Crime' The Oxford Handbook of Criminology (3rd ed, 2002) in Textbook, p. 42.
  4. S Cohen, Against Criminology (1988) 256-8 in Textbook, pp. 42-43.
  5. D Husak, 'Overcriminalisation: The Limits of the Criminal Law' (2008) in Textbook, pp. 43-4.
  6. Textbook, pp. 44-5.
  7. R Hogg & d Brown, Rethinking Law and Order (1998) in Textbook, pp. 45-7 in Textbook pp. 44-7.
  8. Textbook, p. 48-9.
  9. EP Evans, The Criminal Prosecution and Capital Punishment of Animals, (1987) in Textbooki, p. 49.
  10. Textbook, pp. 50-1.
  11. G Williams, Textbook of Criminal Law (1983) in Textbook, p. 50.
  12. Andrew Ashworth, 'Is the Criminal Law a Lost Cause?' (2000) 116 LQR 116 in Textbook, pp. 51-2.
  13. Textbook, pp. 53-4.
  14. C Geertz, Local Knowledge (1983) in Textbook, pp. 53-4.
  15. Textbook, p. 54.
  16. R Hogg, "Perspectives on the Criminal Justice System" M Findlay, S Egger and J Sutton (eds), Issues in Criminal Justice Administration (1983) in Textbook, pp. 54-5.
  17. Murray Lee, Inventing Fear of Crime (2007) in Textbook, p. 55.
  18. Textbook, pp. 56-8.
  19. Textbook, pp. 57-8.
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