Social Reaction

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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. 86-104.

Introduction

[1] Emile Dirkheim advanced a theory according to which the key universal feature of crime is the reaction of the social audience (ie, things should be criminalised according to how society responds to them). He considered:

  • Common properties of crime should not be deduced through comparing the behaviours treated as criminal.
  • Harm was also not adequate as a universal feature, given breaches of sacred taboos draw harsh penalties, and acts that were in fact harmful often drew disproportionate responses.

Dirkheim believed crime was a normal and healthy part of society.

  • Normal in the sense that every society has individuals who fall below the standard or norm set by others.
  • Healthy in the sense that people came together and confirmed their shared values in denouncing the criminal act. It helps them define themselves as a community.

In The Division of Labour, Dirkheim said:[2]

  • An act is criminal when it shocks the common conscience.
  • 'Crime brings together upright consciousnesses and concentrates them'.

Moral Panic

[3] Moral panic is where the public goes into a panic (social response) about something although it isn't actually such a dominant issue.[4] Examples include:

  • Muggings - England went into a moral panic about muggings in the 1970s although there wasn't actually that many muggings going on (no increase either).
  • Bikie gangs - moral panic stemming from the homicide at Sydney Airport.
    • However, there are already strong laws regarding murder, so why is it necessary to have additional laws specifically for bikies?
  • War on terror - national security appears to have become the overriding and primary concern, violating civil freedoms.

There are various factors influencing the reaction of a social audience. The media and public leaders are influential in transmitting information, which means they can 'hype up' certain events or situations.

Moral panic is often turned toward 'folk devils' (scapegoats). Lately, Australians have made the 'Arab Other' into a folk devil, as discussed by Poynting et al:[5]

  • The use of the 'Arab other' creates a stereotype - a figure which merges Arabs, Muslims and Australians of Middle Eastern ancestry into one group associated with crime.
  • Events such as terrorist bomb attacks are perceived by people to be in connection with people identified as ‘Middle Eastern’ ancestry and hence have created moral panics.
  • This has been enhanced by the media and opportunist politicians (especially in elections) with a subsequent increase in racial attacks in public places across Australia.
  • Cohen suggests that central to moments of moral panic was the creation of a folk devil, an object of hostility that could bear the brunt of social anger and be seen as the wrongdoer.
  • But a folk devil is not necessary to the existence of moral panic. This folk devil is just a way of focusing the moral and social anxieties embedded in the moment of panic.
  • By creating the folk devil, a range of cultural practices whose only offence is their perceived difference become associated with crime.
  • This ‘Other’ functions not only as an object of hostility, but also as a form of ideological explanation of a range of social problems, understood as moral problems originating in the cultural pathology of the folk devil and providing a simple narrative of us and them, good and evil, victim and wrongdoer.

Another case of moral panic is pedophilia. Catherine Lumby discusses this in response to the case of John Lewthwaite, a murder and child molester who was released from prison and then harassed by the media and public without end:[6]

  • Pedophilia is discursively organized by contemporary debates on the sexual and physical abuse of children.
  • Evidence shows that pedophilia takes place predominantly within the family. This means that the moral panic about the fear of a stranger, preying pedophile is inaccurate and misplaced.
  • There is also great anxiety about the introduction of new technologies (eg, internet which provide access to pornography and social media).
  • To argue that community outrage at pedophiles is actually displaced and misrecognised anxiety over broader social and cultural changes is, in popular terms, to diagnose a classic case of moral panic.
  • To understand moral panic, one needs to look at all the cultural and social aspects of society.

Anti-Terrorism Legislation and the Processes of Criminalisation

[7] Anti-terrorism legislation enacted by governments can be portrayed as a response to a moral panic. Traditional notions of parliamentary democracy have been violated, with parliamentary processes forgone in favour of the executive (ie, legislation is enacted with great speed and rights are being abrogated for the sake of safety).

These issues are discussed by J Hocking:[8]

  • The aspect of pre-emption inherent in the new pieces of legislation is problematic.
  • There does not appear to be a balance between the needs of national security and individual rights.
  • There has been a criminalisation of information exchange.
    • Freedom of speech by inmates is curtailed, reducing the public’s knowledge about torture and other malpractice, and thereby negatively affecting democratic participation.

Language and Metaphor

[9] The particular language used to discuss and describe crime often involves the use of metaphors, in particular war metaphors: the 'war on terror', the 'war on drugs'. Terms such as 'corruption' and 'cancer' also bring up images of decay that must be immediately dealt with. Poynting et al explain how these societal issues are portrayed as an 'aggressive threat to moral innocence', which narrows the frame of vision when viewing these problems.[10]

In 'Governing through crime', Simons emphasises that the 'war on crime' model encourages tracking offenders and incarcerating them as success. However, better governance would be achieved through adopting a 'war on cancer' model, whereby underlying social and other factors would be addressed to fight the problem at its source.[11]

Costs of Criminalisation: 'Overreach' and 'Crime Tariff'

[12] When considering whether a particular act should be criminalised, it should be recognised that the choice is not between criminal law and non-regulation, but rather between different forms and degrees of regulation.

  • In evaluating the merits of different forms of regulation, it can be beneficial to consider the costs and benefits involved in a criminalisation strategy.
  • Many offences are not criminalised (but merely regulatory) because of the benefit of the general activity (eg driving, industrial practices).
  • This concept often arises when considering the 'war on drugs' which is largely unsuccessful and requires enormous resources.
    • Benefits including saving people's lives and preventing harm. Some also view drug use as an inherently immoral activity and thus criminalisation is instantly justified.
    • However, the benefits can be cancelled out because criminalisation tends to make drug use more dangerous: encouraging unsafe practices ('cutting' drugs, unsafe administration) and reluctance to seek medical assistance.
    • Also, the concept of illegality is sometimes attractive to some people who want to 'rebel' (eg, smoking, drugs and underage drinking).

These concepts were discussed by N Morris and G Hawkins:[13]

  • The prime function of the criminal law is to protect our persons and our property.
  • When the criminal law enters the spheres of private morality and social welfare, it exceeds its proper limits at the cost of neglecting its primary tasks.
  • This extension is expensive, ineffective and criminogenic.
    • When activities which have no clear victim are criminalised, such as gambling, prostitution, drug use, it has a very significant potential to lead to police corruption etc.
    • Various forms of behaviour should be decriminalised, such as public drunkeness, drug abuse, disorderly conduct etc.
  • The present 'overreach' (overloading or extending the criminal justice system) of the criminal law contributes to the crime problem in the following ways:
    1. Criminalisation imposes a ' crime tariff ' - the fact that some products are illegal drives up their price and discourages competition by those who might enter the market were it legal, thus making the supply of such goods profitable for criminals (ie, the fact that something is criminal puts an extra 'tariff' or tax on it).
    2. This leads to the development of large-scale organised criminal groups.
    3. Once prices become high, people resort to crime to obtain money to pay those prices.
    4. The proscription of a particular form of behaviour by the criminal law groups those who engage in it into association with those engaged in other criminal activities (ie, grouping together gambling and murderers as the same 'criminals') and leads to the growth of an extensive 'criminal subculture'.
    5. The expenditure of police and criminal justice resources in matters of private morality seriously depletes the resources which should be spent on dealing with the primary concerns of the criminal justice system (ie, protecting people and property).
    6. These crimes lack victims, in the sense of complaints asking for the protection of the criminal law. Where such complaints are absent, it is difficult for police to enforce the law.

The criminal law constitutes only one regulatory option and it may not be the best way of achieving a given social objective. However, the argument that too much focus is given to people’s lives should be approached with caution (eg, in terms of domestic violence or rape, the use of the public/private distinction has attracted controversy).

Various Forms of Regulation

[14] Decriminalisation does not necessarily mean the escape of regulation. There are a range of options, both legal and non-legal, for dealing with issues.

  • Tort law and associated civil penalties could be used for informal regulation.
  • Educative and preventive health and safety strategies – drugs, sexual behaviour.
  • Governmental and professional regulation, whereby illegal drugs, for instance, could be given to medical professionals for them to decide to whom to supply to (as in the case of prescription-only drugs).

A common concern with non-criminal forms of regulation is the lack of legal safeguards and respect for due process.

  • For example, police or social welfare power to take children from public places to their homes, as per the Children (Parental Responsibility) Act 1994. The power is very discretionary and there is little accountability.

Regulation and Governmentality

[15] Governmentality is the certain ‘mentality’ of a rule based around the regulation of the 'populations' as opposed to individuals

  • In other words, other forces regulate or influence our behavior other than the state, or the social influence over the way we behave.
  • It is the linking of individuals and organisations with political objectives.

The concept of governmentality is discussed by R Hogg:[16]

  • There has been a lot of regulation aimed at the governance of populations, not the juridical disciplining of individuals, through the criminal law (eg aborigines, ethnic groups).
  • Rather than the negative sanctions associated with criminal law, Hogg pointed to the growing importance of 'allocation' and 'positive' sanctions such as welfare benefits, policing and sanctions for non-compliance 'which are organized around the withholding, suspension and withdrawal of the benefits'.

The benefits of governmentality are discussed by A Crawford:[17]

  • There is a growth of contractual governance (social control through contracts) as a mechanism of control (eg, policing through social housing tenancies, 'contractual communities', domestic insurance contracts, private policing and security, restorative justice and victim offender mediation, youth offender contracts).
  • Individuals are themselves becoming more responsible for carrying out control functions once reserved for the state.
  • Thus, the role of state is being transformed - they seek to ‘design out crime’ via instruments that inscribe incentives and disincentives into the physical environment and social relations.
  • These new contracts have an emphasis on security rather than justice. Ensuring security and order, as end in themselves, is more important than prosecution of crimes.
  • Contractual governance has emphasis upon particularistic crime prevention as opposed to criminal justice with its emphasis on denunciation and deterrence.
  • Contractual governance is more consensual than coercive in that they seek to enlist active responsibility and self actualisation.
  • It is also less punitive, but more intrusive allowing for more responsive forms of regulation (eg, restorative justice).
  • Given the language of choice, autonomy, and voluntaries of the contracts, if a party doesn’t adhere to its self imposed side of the bargain it is as if it failed one self and failure of obligation to others.

End

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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. Textbook, pp. 86-7.
  2. E Dirkheim, The Division of Labour (1933).
  3. Textbook, pp. 87-93.
  4. Stan Cohen, Folk Devils and Moral Panic extracted within S Hall et al, Policing the Crisis (1978) in Textbook, pp. 87-8
  5. Poynting et all, Bin Laden in the Suburbs (2005) in Textbook, pp. 89-91.
  6. Catherine Lumby, 'Sex, Murder and Moral Panic: Coming to a Suburb Near You', (1999) 4 Meanjin 98 in Textbook, pp. 91-2.
  7. Textbook, pp. 93-6.
  8. Jenny Hocking, 'Liberty, Security and the State', J Waler and P Saunders (eds), Ideas and Influence: Social Science and Public Policy in Australia (2005) in Textbook, pp. 93-6.
  9. Textbook, pp. 96-7.
  10. Poynting et all, Bin Laden in the Suburbs (2005) in Textbook, p. 96.
  11. Jonathon Simons, Governing Through Crime (2008) in Textbook, p. 97.
  12. Textbook, pp. 97-9.
  13. N Morris and G Hawkins, The Honest Politicians Guide to Crime Control (1969) in Textbook, pp. 98-9.
  14. Textbook, pp. 99-100.
  15. Textbook, pp. 100-104.
  16. R Hogg, 'Criminal Justice and Social Control: Contemporary Developments in Australia', (1988) 2 Journal of Studies in Justice 89 in Textbook, p. 101.
  17. A Crawford, 'Contractual Governance of Deviant Behavior', (2003) 30(4) Journal of Law and Society 479 in Textbook, pp. 103-4.
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