Victimology vs. Criminology W1
- Victimology may be defined as the scientific study of the extent, nature
and causes of criminal victimisation, it‟s consequences for the persons
involved and the reactions by society, in particular the police and CJS
as well as voluntary workers and preventing victimhood.
- Largely comprised of men until 70s – before it was thought if a woman
was raped it was precipitated by herself.
- Stream 1: Penal/interactionism – blames the victim.
- Stream 2: General/assistance-orientated – says that the status of the
victim is too readily claimed by persons suffering from minor problems,
and that it undermines personal responsibility (tries to reduce and
o Victims treated as participants of crime.
o Classified them according to their involvement.
o Interested in the participatory model.
o Interested in how victims precipitate crimes of violence (how
they became involved).
o Always interested in constructing a situation of a victim where
they were responsible.
o Identified factors in victims that lead to a victim status.
o Coined a victim illogical notion.
o Interested in interaction Victimology.
o Interaction between offender and victim.
o They need reconciliation together.
o Coined the age of penal Victimology.
o Looked at social processes after engagement with the criminal
o Defined by the criminal law of the victim (talk about the victim
when they engage in it).
Contrasting ideological approaches/frameworks
Orthodox/Positivist Liberal/Left Realism
- Interested in a scientific - Thought that more police,
method – number of victims policies and penalties would
and how they experienced create less victims.
suffering on a scale. - Marxists, neo-Marxists and
- Created a victim typology – feminists.
victims and offenders are - Interested in street crime
distinct, separate groups. happening on a daily basis.
- Suggested there was a born - Questioned why people
victim, biological, determinism, commit crime.
measurement, individualising. - Interested in sub cultures.
- Responsibility was the victims‟. - Victim is a class which people
are generally born into.
- Interested in marginalisation (when individuals lack groups
to represent their interests in
political life and that the
individuals themselves become
victims when they lack clearly
- Victims of the powerful. - Label victim/Victimology.
- Visibility of these crimes - Victim as constructed and
depended on the visibility of contested.
victims. - Negotiation of victim status.
- Role of the state, law and CJS. - Label is contested – that they
- Human rights as a connector are seeking to negotiate victim
beyond CJS, less parochial. status.
- Feminist activism.
- Sympathises with victims of
crime and offenders and
people who aren‟t recognised
as victims (because it might
not have been reported and
they aren‟t convicted).
- Victimisation occurs from
- The „ideal‟ victim – Christie (1986):
o Cultural stereotype that each society develops.
o They have informed individual, collective and institutional
responses to the victim.
o Influential concept but has limits, increasingly more critical
accounts have developed.
o 6 attributes (if you have them you are a complete, unambiguous
and total victim):
Weak: sick, old, young.
Doing something respectable and legal.
Attacked by a stranger, in a public space.
Someone who brings the matter to the attention of police.
Offender is strong, unapologetic; unworthy of forgiveness;
bad, criminal, „other‟.
- Non-ideal victim (Chamberlain):
o Doesn‟t fit traditional victim status.
o Witch, possessed, etc.
Recognising and responding to the victim
- The challenge for Victimology:
o Can we critically focus on the victim in a way that addresses
localised issues re CJS AND provide alternative critical accounts
of the victim? o Begins by identifying that the victim:
Is defined historically and temporally.
Rape in marriage.
Criminalised in 1975 (SA).
Is brought to life legally, socially, culturally and politically.
Via multiple avenues; driven by a variety of
agendas; towards many ends e.g. asylum seekers.
Performs victimhood and/or resistance to victim status.
Voices must be heard or asserted to appear on the
public social, political or legal record.
Is located within competing narratives of victimisation.
State in injustice?
Summary Theories of Victimology W2
o Victim blamers – victims might share the responsibility with
offender if facilitation, precipitation or provocation of the event
E.g. if you‟re on the phone in a well-known place and say
you‟re about to withdraw $5000 and then go to
o Victim defenders – it is not fair to hold a wounded party
accountable to some degree for losses or injuries that occurred.
E.g. they would say that anyone should be able to wave
around $5000 and not expect to become a victim.
- Shared responsibility:
o Facilitation – victims unknowingly, carelessly, negligently and
inadvertently make it easier for offender to commit a theft.
E.g. you told them you were going to McDonalds with
o Precipitation – victim significantly contributes to the event.
E.g. shouting into the phone that you‟re about to walk to
your unlocked car with $5000 cash.
o Provocation – more responsible than perpetrator for the fight
that ensued. Goaded, challenged or incited a generally law-
abiding citizen into taking defensive action.
E.g. assault and robbery because you loudly said you
were walking to your unlocked car with $5000 cash.
o Finding the causal conditions for criminal behaviour and thus
assumes that the presence of these conditions makes the
criminal „different‟ in some way from the law-abiding members of
Victimology – deals with measurement of the amount of
victimisation, the development of typologies of
victimisation, explanations of why some people are more
prone to it than others, and the relationship between
criminal and victim which may indicate the ways in which
victims may precipitate crime.
o Crime attributed to choice/pathology rather than the structural
inequalities of society.
o Focus on the importance of the intuition of the state and it‟s
representatives in defining and sanctioning certain forms of
behaviour at certain points in time,
Left-realist criminology – reflect the reality of crime
(origins, nature and impact).
Feminist criminology: o Develops a critique of the institution of patriarchy (male power
o Concerned to document victims‟ lived realities.
- Von Hentig (40s):
o Theory of victimisation.
o Identified victims by examining various risk factors.
- Mendelsohn (50s):
o The Penal-Couple.
o Interpersonal relationship between the offender and the victim.
- Schafer (60s):
o Classified victims according to their responsibility instead of risk
o Moved towards victim blaming.
- Karmen (00s):
o Discusses the development of Victimology and points out that
victimologists view the dynamics of the victim‟s role in society
from a multidisciplinary perspective.
Victim precipitation theory
- First identified by Wolfgang – looked at homicide (and aggravated
assault that led to homicide).
o Primary study of the nature of homicide.
o Victim precipitation.
o Studied victims and offenders as separate entities but also as
“mutual participants in the homicide”.
- The victim was usually the first to slap, punch or stab.
- The prevalence of victim precipitation in murder and assault is contrary
to the popular image that victims are totally innocent.
- Interpersonal dispute is a dominant characteristic of many homicides.
o They were engaging in some way before (insults, etc.) and
somehow the victim had precipitated it and the victim status was
then imposed on them.
- Five stages of escalation (typical homicide):
o Victim makes a direct offensive verbal attack against the
offender (suggestion that 40% of victims initiate the homicide by
o The offender interprets the victim‟s words and deeds as
o The offender makes creates situation to get even with the victim
for the previous insult.
o The eventual victim responds to the offender‟s opening with
o Commitment to battles ensues, the victim is left dead or dying
(some 35% of offenders carry gun or knives, and nearly 65%
leave the crime scene to obtain weapons).
Amir: on rape - Analysis of police records on rape incidents in Philadelphia.
- Findings: some 19% of all forcible rapes were victim-precipitated.
- Factors included:
o Seductive actions.
o Wearing revealing clothing.
o Using risqué language.
- Offender‟s interpretation of actions is what was important – not what
victim actually did.
- Victim behavior and the situation which surrounds the encounter will
determine the course of events leasing to the crime.
- Victim behaviour.
- Act of commission.
o She agreed a drink or ride.
o She failed to react strongly enough to sexual suggestions.
Passive precipitation versus situated transaction
Passive precipitation. Situated transaction.
- Occurs when the victim - David Luckenbill
exhibits some personal o To explain victimization
characteristic that either - Violent victimisation; in
threatens, or encourages the particular, homicides and
attacker; may be unconscious. physical assaults
- Related to power: - Emerged from a pattern of
- Group of immigrants arriving to interaction (a transaction)
the community and compete - Rarely immediate
for job. o Protection of honour.
- Love interest.
- Victimisation is the function of the victim‟s lifestyle.
- Going out in public places late at night, living in urban areas.
- High-risk lifestyles:
o Taking drugs.
o Getting involved in crime.
o Leaving residence for a long time period.
- How to decrease your own victimisation:
o Micro-level theory:
o Different groups may have different high risk lifestyles or more,
depending on what group they are.
o Variations in lifestyle affect numerous situations with high
victimisation risks that an individual may experience:
People associated with.
Working outside of the home.
Leisure activities. o Someone who has drug dealer as friend may be more likely to
be victimised than someone with community spirited prosocial
Empirical test findings
- Homes that are well-guarded are less likely to be burgled.
- People who stay out late and drink heavily are more likely to be crime
- Schwartz and Pitts (1995): study of women at Ohio University.
o Hypothesis testing:
o Women who goes out drinking more often? (suitable
target/absence of guardianship).
o Women who are friends of motivated offenders? (i.e. Men who
get women drunk for purpose of having sex).
- Night-time and weekends are the peak times for most violent crimes,
property offences, and public order violations.
- Darkness is a criminogenic condition (fewer people are around, higher
rates of drug and alcohol use, greater anonymity).
- Dangerousness of particular physical locations changes according to
- Victims‟ homes (murder, assault, sexual offenses).
- Streets around victim‟s homes and deserted areas near car parks and
entertainment establishments (robbers and car thieves).
Routine activity theory
- “Opportunity makes the thief”.
- When a crime occurs, three things happen at the same time and in the
o A suitable target is available.
o The lack of a suitable guardian to prevent the crime from
o A motivated offender is present.
- A suitable target: o Value - the offenders value the target for what they gain or value
the effect they have on it. E.g. a burglary because the burglar
wants the stolen items.
o Inertia - the size or weight of an item can effect how suitable it
is. E.g. items such as CDs and watches are small and portable.
o Visibility - how visible a target is can affect its suitability.
E.g. Spray painting a dark alley.
o Access - if a target is easy to get to, this increases its suitability.
E.g. someone walking through a deserted street alone at
night is accessible.
- Absence of a capable guardian:
o A capable guardian is anything, either a person or thing, that
discourages crime from taking place.
o Police patrols, security guards, Neighbourhood Watch schemes,
locks, fences, barriers, lighting, alarm systems, vigilant staff and
o A guardian can be present, but ineffective. E.g. a CCTV camera
is not a capable guardian if it is set up or sited wrongly.
o Staff might be present in a shop, but may not have sufficient
training or awareness to be an effective deterrent.
- Motivated offender:
o Gain/Need - poverty, to feed a drug habit, greed.
o Society/Experience/Environment - living in a culture where crime
is acceptable, because of peer pressure, coercion, lack of
education, poor employment prospects, envy, as a rebellion
o Beliefs - a belief that crime in general or particular crimes are
not wrong, as a protest on a matter of principle, prejudice
against certain minority/ethnic groups.
- Key question:
o Who has the power to apply the label and what considerations
are significant in that determination?
- Epistemology, methodology and political agenda.
o An empirically based, rational and objective science but the
realist requires the postulating of types of unobservable entities
and processes that are unfamiliar to us.
o Problem: Victimology has been overly political.
o Focus on certain activities: ask, why? And draw attention
towards the forgotten.
- As a function of opportunity (at various levels).
- As a function of social interactional dynamics between victim and
- As a function of deep social division in terms of power and control.
o Not about apportioning blame.
o Duality (at least) of process.
o Understand power and control processes. The Media & Social Discourse of „the Victim‟ W3
Demand for news: the role of the public
News and victimisation as a commodity i.e. we consume news.
Presentation fulfils demand/insatiable appetite for particular „types‟ of
TV ratings, newspaper sales, website hits increase for sensational
stories of crime and for those who get the „exclusive‟.
Issues to consider:
o Unnoticed, absent, undeserving or „unappealing‟ victims.
o Being an „ideal victim‟ – person/category of individuals who
(when hit by crime) most readily are given the complete and
legitimate status of being a victim, including those who are
perceived as vulnerable, defenceless, innocent and worthy of
sympathy and compassion.
E.g. child murder victims.
o How victims use and are used for agendas.
Mass media & crime: background
o Victims in:
Media and CJ discourse.
Development of crime policy.
o News as a genre of „truth‟ telling.
o News as an „objective‟ and „neutral‟ reporting of „facts‟.
o News as a commodity.
Informing the audience is not the only goal.
Newsworthiness & victimisation
Unequal attention is characteristic of news reporting.
Hierarchy of the „ideal‟ to „non-ideal‟ victim.
o Attention, generate change, public sympathy.
o No attention, absent, unnoticed and no change.
Hierarchy of victimisation – describes a pecking order of sorts,
representing the differential status of particular types and categories of
crime victim in media and official discourses, including ideal victims at
the top and non-deserving victims (e.g. habitually violent youths injured
in a drunken fight) near the bottom.
Priorities are judged according to newsworthiness:
o Determining what, how and when to report is informed by the
why i.e. „newsworthy‟ is informed by news values.
o Impact – sustains, reinforces, produces images of „real‟ victims.
„Official‟ support for victims may be fickle (many victims/victims needs
not recognised or only some are).
o „Victim‟ status maybe dangerous and/or limited. o Politicians, bureaucracies not only entities with vested interest in
o The „victim industry‟ – range of institutions have an investment –
from the medical and therapeutic professions, to academia, to
mass media to the recovery movement.
o Victims are not always passive and reporting does not always
impact negatively. E.g. Maddie McCann.
Criteria that influence the selection. Production and prioritisation of
events as news.
o Has to be massive e.g. bombing, mass killings, etc.
o Media usually first use shock horror headlines - occasion for all
sorts of narratives to explain what happened.
o The more bizarre the more likely it will be reported.
o Humorous, nostalgic, grotesque more likely to be reported.
o An event that is rare, extraordinary or unexpected it will be
o Equally, a story that is predictable may be deemed newsworthy
because can plan their coverage & resources
o Having already set the news agenda, media agencies will rarely
do an about turn and reframe an issue according to a different
set of principles.
Simplification (eliminating shades of grey).
o Must be reducible to a min number of parts and themes.
Headlines have to be short sentences, simple grammatical
structure and often titillating (headline doesn‟t‟t give you details).
Individualism and personalisation (individual focus or causality).
o Both are aspects of the process of news simplification;
o Personalisation – that stories about people are favoured over
those concerning abstract concepts or institutions.
o Result is that events are frequently simplistically viewed as the
actions and reactions of individuals.
o Individualism - definitions of crime which highlight individual
responses to crime are preferred over complex processes,
cultural and political explanations.
o Most criminals are described as being „impulsive, a longer,
maladjusted, irrational, animal-like, aggressive and violent‟.
o Emphasises their lack of normative social ties.
Risk (lasting danger).
o Predisposition in newspaper to report crimes if the victim and
offender are strangers.
o Vast majority of serious offences, including murder, rape and
sexual assault, are committed by people known to the victim;
o Yet, media persist in presenting a picture of crime as random,
meaningless, unpredictable and ready to strike anyone at any
one time. o Children and young people are vulnerable to risk from
„paedophiles‟ and the Internet.
o Consequence – presents picture of crime that is meaningless,
random and unpredictable which contributes to a heightened
fear of crime because we think it‟s the kind we‟re more likely to
o Connected to risk;
o Media over-report crimes involving sex & violence;
o Moreover, such stories are highly sexualised, even
pornographic, in their representations of women as victims;
o Such stories tend to draw on narratives about masculine
violence as a „normal‟ or a „natural force‟ and where all women
are vulnerable, potential victims in need of protection.
Celebrity or high status persons.
Proximity (spatial/cultural relevance).
o Spatial – geographical nearness of event.
o Cultural - Relevance of story to audience.
Spectacle or graphic imagery.
Children and young people.
Conservative ideology and political diversion (deterrence/distraction
from wider problems).
o Focus is on violence of protesters rather than why they are
o Distraction from wider problems.
o Perpetuates sense of divided hostile population under threat.
o Usually around certain events.
o Using recognisable frames of events e.g. crime rates on the rise,
Melbourne among top 4 countries.
o Usually no supportive stats.
o When media tend to report on protesters – focus tends to be on
violence of protesters not really what its actually about. Only
interested in violence.
o Discussion about what police are doing (focus), perpetuates a
o All about the image of the police, distracts from wider issues,
shows proactiveness of police.
Victimisation and news values
Victimisation of crime news – increasing prevalence and importance of
visual representations of crime news, crime victims and criminal
victimisation in the info age, generally to enhance the immediate
accessibility, human interest and overall communicative impact of the
news product on media consumers.
Unequal attention is characteristic of news reporting.
Priorities are judged according to news values and levels of harm. Impact – the selective representation of crime victims reinforces and
produces images of „real‟ victims.
Under-representation of crime victims
Victims from „other‟ communities.
Victims of corporate crime.
Young people as victims of street crime.
Victims of family violence.
Over-representation of crime victims
Police and corrections officers.
Children and the elderly.
Misrepresentation of crime victims
Victims of the CJS e.g. Jill Meagher.
o Ideology of media coverage.
Adult victims of sex crime.
o Masquerading rape as seduction.
Child victims of sex crime.
o A news „staple‟.
o Absent images of familial abuse.
Impact of representations of victims
Negative – secondary victimisation.
o Biased or inaccurate reporting.
o Reluctant coverage and overexposure.
o Harassment and invasion of privacy.
o Criminal intrusion and surveillance.
Refers to those particularly serious or high profile crimes which impact
not only the immediate participants (victims, offenders, witnesses), but
also on wider society, resulting in some reconfiguration of
People construct their understandings of crime and disorder around
Those that tap into strong collective emotions – fear, outrage.
Generate extensive and continuing media interest.
Often culminate in social campaigns with political implications.
Victim’s use of the media
Media enable platform to lobby for reform and influence
legal/organisational change and compensation.
o E.g. child abuse – raise public awareness of victimisation.
Victims rights lobby groups:
o Sentencing and legal change, „truth in sentencing‟.
Example of policy change – Cody‟s Law: o In 2007, 5 year old Cody Hutchings beaten to death over several
weeks by his mother‟s boyfriend Stuart McMaster
o Pled guilty to manslaughter. Sentenced to 13 years with a
minimum of 10 (Maximum sentence was 20 years)
o Victim‟s family and Victims‟ Rights groups utilised media – public
outcry over lenient sentence
o State government introduced new legislation aimed at getting
tougher sentences for child killers
o Populist politics? Victory for democracy? Unnecessary
interference in the judicial process? Justice?
Role of journalists:
o Sentries to watch and learn.
o Scribes who listen and record.
o Witnesses with courage to speak.
o Advocates for the weak.
o Keepers of collective memory.
Offenders in the media
Stereotyped as evil, pathologically violent and often from ethnic
minorities or stigmatised groups e.g. drug users.
Attack innocent victims at random.
Experiences of crime victimisation downplayed or ignored.
Targeted communities – victims of community backlash. Victimology & Criminalisation W4
Victim in criminal law
Historically, victim was responsible for the retribution – punishment is
for the victim‟s satisfaction.
o Satisfaction and punishment of offender.
o The state replaces the victim.
If you commit a crime, you not only injure the victim but
you have committed a crime against the state as well.
Upset the crowd as well as the actual victim.
The offender is held responsible by the state.
o Begins the neglect of the victim.
Concerned about harms to the state and social order.
State uses the body of the individual who has been
harmed to place punishment/prosecution onto the
Criminal law needs to be sufficiently clear and precise to
enable us to identify the harm/wrong with which we‟re
trying to criminalise (for prevention or restitution).
Expansion of the state may be attributed to the victims‟ rights
movement – but findings suggest little link.
o Victim criminal law doesn‟t actually cause the victims‟ rights
movement – most new crimes contain a victim and they were
the focus and trying to understand why this is the case.
o Frameworks about why they are the focus (Sebba):
Analytic – determine if offences possess some
characteristic that link them in a conceptual way to victim.
Rhetorical – focus on language employed in definitions or
debates preceding enactment.
o Moved from victim-driven to victim-oriented.
o E.g. smacking children – movement is pro-child, not anti-adult.
There are groups that think people should be able to riot
(pro-literary) and do whatever they want as long as they
don‟t harm anyone.
But children are copying their parents – not smacking to
deliberately create victimisation, they‟re just trying to
teach them to do the right thing.
Distinguish types of crimes
Mala in Se offences – by nature violate the natural, moral or public
principles of a civilised society.
Mala Prohibita offences – wrongs by virtue of being prohibited
(genuinely bad). o Trespassing.
o Tax avoidance.
Victims and criminal proceedings
How victims have been localised in criminal proceedings.
Focus on extending procedural rights.
o Having access to police officers, family liaison officers, sexual
offences officers, etc.
o Informing the victim of which state the case is at e.g. when it
goes to court, when the offender is likely to be released.
State benefit – creating a situation where a victim cannot
deny their engagement in the CJS in order to avoid
engaging in a prosecution (pawn of the state, seeking to
punish and go along with the state process).
o Satisfaction from punishment from the victim is not usually
achieved through the use of state processes.
o If we recognise that there are structural problems that created
the situation where the offender went on to offend and be
convicted, does that mean that society has now a greater
responsibility to that person and more generally to us all in
creating a situation where offenders are as they are today
(offending against us all because we are all victims).
o Not all receive compensation but it injures us all because we all
think we‟re going to be victims.
Victim-impact statements – achieve/legitimise judges in giving out
o If the victim says how it has affected them e.g. they will never
work again, the judge will give a harsher sentences.
Bill of rights:
o Mitigating impact of Constitutional protections for the offender.
o Right of innocence, defence, etc.
Who is the victim
Our conceptions of the victims and victimisation are optional,
discretionary, and by no means innately given.
o We don‟t have an innate disgust against offences but we have
been socialised that those are things we do not want in our
Social construction of law itself, all crimes have a victim,
o The conception of the victim precedes the definition of an act as
o Makes us think critically about how we construct our society and
understand what it wants, or find a victim and create
criminalisation based on that. Only those acts which cause harm to those who are able to make and
enforce the law become criminal.
o The powerful/elite people in society.
o Protecting their interests through the criminal law.
Rhetoric of victimisation.
Concerned with questioning the proper scope of the criminal law.
o First came about as crimes without victims – impossible to
identify a victim in some crimes.
Major problem: lack of a traditional definition.
o Therefore need to interrogate what all these victimless crimes
o Socially opprobrious or truly and seriously harmful (Skolnick &
o Consensual crime – prohibited but has consensual elements
(Vetter & Silverman).
o Mundane crime – crimes that are of regulatory nature e.g. not
submitting taxes on time (Gibbons).
o Crimes without complainants – could be a construct (if we look
hard enough we could find one).
E.g. if you‟re driving on your own without a seatbelt the
victim could be an ambulance officer, kangaroo or family
member if there is an accident.
We find and construct a complainant in a situation.
Benefit of victim identification
Useful for prosecution:
o CJS – meeting emotional needs of victims to secure
Legislative process – producing legislation:
o Rhetorical value – political capital.
o E.g. California Child Protection At 1984.
Confiscate property from profits and lights and cameras
for pornography production.
Eliminated need to prove intent in convictions.
o Most criminal laws require intent – must intend to do an act to be
If not, reckless or negligent act.
Need to understand the reason for the engagement with
the criminal law.
o Capitalist enterprise.
Decriminalisation in absence of victim
Victimless crime – an illegal act in which on one is harmed, or if harm
occurs it is negated due to the informed consent of the participant(s).
o Focused too much on the individual. o We exist as a society and should therefore refocus on what a
victimless crime is and understand that there are
social/environmental crimes e.g. throwing poison into a river and
causing fish to die, and construct a victim for this.
Understanding victims from different perspectives.
Identification of victim – harm
Indirect harms are obviated.
o Avoidance costs – members of society incur expenditure to
reduce probability of victimisation.
o Insurance costs – reduce impact should they be victimised.
o Attitudinal costs – fear, apprehension and insecurity.
People won‟t spend money to take action or prevent themselves from
being a victim if there is no harm.
o E.g. if you‟re allowed to be nude you won‟t spend money for the
possibility of being arrested for it.
If they were obviated:
o Violation of rights due to law enforcement.
o Police harassment.
o Corruption in CJS.
o Generation of secondary crimes.
o Dollars wasted on fruitless law enforcement.
Victimology co-opted itself to political and public interest.
Role of victim:
o Ideas of middle class symbolism.
The middle class individual would not see the criminal
enterprise as an enterprise – they just see it as
individualistic. E.g. the offender was not disciplined.
Offender cannot be viewed as a victim and victim cannot be viewed as
o Crimes viewed as individual problems – discipline,
irresponsibility and lack of concern for others.
o Response is therefore an individual response not a societal
o Radical Victimology could say that these responses are not
working and we need to tackle the inherit societal problems, not
just focus on the individual.
Victimisation and resilience
Understanding victimisation, by linking to vulnerability and resilience.
o Resilience is socially constructed.
There are some who are vulnerable but are denied victim status.
o Young offenders incarcerated. o Whether label is embraced may be connected to capacity for
Social conditions that promote resilience.
o Building resilience.
o What kind of suffering is recognised, emphasised with and
responded to by „us‟ as spectators is socially constructed.
Victimology and criminalisation
To expect laws to be devoid of morality is to miss the point that
someone‟s morality is embedded in every law.
Tolerance should be the guiding principle to determine what is or is not
o Have to think how and why something is prohibited. Blurring the Distinction between the Offender and the Victim: Incest W5
Loosely understood as sexual activity which may be consensual or not
Definitions come from a multiplicity of sources.
Components of definition:
o Sexual activity.
Incest taboos - theories
Natural aversion – there is a natural aversion to sexual intercourse
among those who have grown up together.
Family disruption – mating between family members would create
Expanding social alliances – marrying outside the family creates a
wider network of interfamily alliances.
Preventing psychological gratification – Oedipus, need to look for an
Inbreeding – mating between close kin produces a higher incidence of
Missouri – criminal code
A person commits the crime of incest if he marries or purports to marry
or engage in sexual intercourse or deviate sexual intercourse with a
person he knows to be, without regard to legitimacy:
o His ancestor or descendant by blood or adoption; or
o His stepchild, while the marriage creating that relationship
o His brother or sister of the whole or half-blood; or
o His uncle, aunt, nephew or niece of the whole blood.
Sexual intercourse means any penetration, however slight, of the
female sex organ by the male sex organ.
Deviate sexual intercourse – any act of sexual gratification between
persons not lawfully married to one another, involving the genitals of
one person and the mouth, tongue or anus of another.
Incest is a class D felony. The disappearance of the incest taboo
Rules far more relaxed in those societies that do not depend upon
intermarriage among different extended kinship groups as a means of
As population increased within human societies and as businesses,
governments and other non-kin-based institutions became increasingly
responsible for the social, economic and political functions previously
performed by kinship relations in lineage-based societies, the social
importance intermarriage between lineage groups declined.
This led to the gradual disappearance of the incest taboo and along
with it a reduction in the very definition of what constitutes incest.
Identification of the victim.
Discrimination – who is a victim.
o Sexual orientation.
o Sexual autonomy.
Movement to greater criminalisation to protect victim,
Does labelling an incest victim help or hinder.
Overt assertion of what the public wants.
o Not evidence based policy making.
Argument- problem with status quo.
Political capital at leaving morally detestable offence unchanged.
How do they argue the continued criminalisation?
Legal (civil) and Social-Educative functions.
The functions of the law to uphold certain basic moral standards. o One of our guiding principles was to uphold the rights of adults
to consensual sexual relationships in private, reflecting the
ECHR respect for private life.
o Siblings or half-siblings may meet as adults, not even knowing
that they are related.
o They are attracted and a sexual relationship develops.
o It is important to recognise that that relationship would only be
criminal if they knew they were related.
o This has even formed plots in soap operas.
o Such cases very rarely come to the attention of the law or are
o This may be an innocuous scenario, but evidence to us, and the
CLRC, pointed to the fact that many adult incestuous
relationships are based on long term grooming and pressure
from childhood, and are not genuinely consensual.
o It is quite proper to argue that, in such situations, an adult‟s right
to exercise sexual autonomy in their private life is not absolute,
and that society may properly apply standards through the
criminal law that are intended to protect the family as an
institution as well as individuals from abuse.
o In addition to this, the ECHR ensures that the state must uphold
its responsibility to provide a remedy in law so that a
complainant can seek justice.
England and Wales – sexual offences Act 2003
Creation of a „Synthetic Necessary Truth‟.
Under-description of the actions being criminalised.
o Conflation of consensual acts with non-consensual (combine).
o Polarity of concepts (opposing).
Use of Moral axioms/self evident truths.
Continued use of stigmatic term.
Use of words suggesting the absence of consent.
Movement of the argument.
o Consensual – generic – non-consensual.
Sexual offender registration
Reasons for registries/notification:
o Reparation and closure to community.
o Modern public penance?
o Reduces fear and anxiety and enhances feelings of control.
o Removing pressure from law enforcement.
o Violation of the Victim's privacy.
o Vigilante attacks/protests.
o Ostracisation. Blurring the Distinction between Offender and Victim: A&TS People W6
Race, ethnicity, risk and victimisation
Vulnerability to and risk and fear of crime are exacerbated by social,
economic and political exclusion, and the risk of personal victimisation
is closely correlated with variables such as:
o Race – social relationship in which structural positions and
social actions are ordered, justified and explained by reference
to systems and symbols of beliefs which emphasise the social
and cultural relevance of biologically rooted characteristics.
o Ethnicity – attachment to a cultural group by birth.
Defining and recording violent racism
Black and minority ethnic:
o Refers to a person or group whose self-defined ethnicity is not
o Higher risk of victimisation than white people.
o Likely to experience repeat and multiple victimisation, perceive
themselves as more at risk of victimisation, and are most likely
to report being fearful of racially motivated crime.
o High rates of secondary victimisation e.g. discrimination.
o Violent racism – form of racism.
o Often unlikely to report their experiences to the police.
Since 1988, 43 police forces in England and Wales have recorded
racist incidents separately from non-racist incidents.
o Racist incident – any incident in which it appears to the
reporting/investigating officer that involves an element of racial
motivation; or any incident which includes an allegation of racial
motivation made by any person.
Number of incidents reported increased from 1997/98 – 2004/05.
1998 – racially aggravated offences introduced.
o Cover racially aggravated assault, criminal damage, harassment
and public order.
o An offence is racially aggravated if:
At the time of committing the offence or immediately
before or after, the offender demonstrates towards the
victim hostility based on the victim‟s membership of a
The offence is motivated by hostility towards members of
a racial group based on their membership of that group.
Membership in relation to a racial group includes
association with members of that group.
Racially motivated incidents:
o Incidents involving a racist element.
o Risk is higher from BME groups than white people.
Institutional racism – the collective failure of an organisation to provide
an appropriate and professional service to people because of their
colour, culture, or ethnic origin. Political and policy responses to violent racism
Officially acknowledged by central government and the statutory
agencies as a problem in need of a strategic and operational response
o Home Office Report published – survey and analysis of inter-
Signalled a formal change in official attitudes.
The police response:
o Changes were introduced following the Home Office Report.
o Metropolitan Police Service introduced recording and monitoring
procedures, and identified racist incidents as force priorities and
the subject of several orders.
o 1997 – survey of all police forces for the Home Office.
Identified a large degree of variation in what was
recorded and counted as racially motivated crime.
Evidence of the failure of the police response was
confirmed when the Stephen Lawrence Inquiry report
concluded that the investigation was marred by a
combination of professional incompetence, institutional
racism and a failure of leadership by senior officers.
Other statutory responses, multi-agency working and victim support:
o Policies introduced to tackle racially motivated offending.
o Crime prevention measures were promoted as having the
potential to tackle racist victimisation.
The Stephen Lawrence Inquiry:
o Report of his murder and the police investigation.
22 April 1993 (18 years old) in London while walking
home with a friend.
Approached by 6 white youths at a bus stop and he was
Him and the friend were investigated for alleged gang
1997 – inquest jury said that he was unlawfully killed in a
completely unprovoked racist attack and the police
investigation was deemed to be fundamentally flawed.
o Significance of the report. It:
Confirmed the insidious and horrendous impact violent
racism has on BME communities in England and Wales.
Defined racist incidents and recommended the use of this
definition across all police, local government and
voluntary and community groups and organisations.
Acknowledged the systematic nature of institutional
racism within police organisation, and by association, CJ
and other statutory organisations.
Highlighted the inadequate and incompetent nature of the
police response to violent racism and the need for more
direct and effective measures to be implemented.
Pointed towards the need for a more informed and
strategic government response to violent racism. o Highlighted the need for greater cooperation between agencies
especially in the gathering and sharing of information:
All racist incidents should be reported, recorded and
Police services should cooperate closely with local
agencies and local communities to encourage reporting.
Local education authorities, schools, housing authorities
and other agencies should record racist incidents.
The post-Macpherson landscape:
o About Stephen Lawrence from a judge‟s perspective.
o 1976 Race Relations Act amended in 2000 to meet one of the
key recommendations from the Lawrence Inquiry report that
placed a duty on public authorities to actively promote race
equality and to avoid race discrimination before it occurs.
o 2003 – further amended to include discrimination and
harassment on the grounds of race or ethnic origins.
Violent racism as a social process
Home Office Racial Attacks report and MacPherson report do not
adequately explain why violent racism occurs and thus do not identify
the most appropriate and effective mechanisms for tackling it.
The situated nature of violent racism:
o Research suggests that violent racism is related to wider and
deeply embedded racist ideologies.
o Perpetrators of violent racism are acting out a particular form of
o Causal links between the racist actions of individual perpetrators
and institutionalised racist practices of the state.
o Violent racism should be seen as a crime against communities
rather than individuals.
The cumulative nature of violent racism:
o Social process – presents violent racism not as static, fixed and
discrete, but as an ongoing, dynamic and fluid set of
o Home Office and MacPherson fail to acknowledge the role it
plays in the everyday lives of many BME groups.
Violent racism cannot be reduced to incidents as they do
not occur in a moment, but are an ongoing dynamic
embedded in time, space and place.
Involve a number of social events, each of which is bound
up with the others.
Violent racism is a cumulative social process which the
police and other CJ agencies respond to by dealing with
„it‟ as discrete incidents.
Researching violent racism
Survey research has difficulty in capturing repeat victimisation.
o Descriptive rather than dynamic.
o Only focuses on the victim in the crime process. o Indicate little about alternative responses to victimisation e.g.
self defence and retaliation – focus on the process after the
reports have been made to an agency.
o Most aren‟t presented in their social, geographical and historical
Racist offenders and perpetrators:
o Typology of perpetrators:
Pensioners – racist to those they do not know.
People next door – racist against those who they deem to
have an unfair advantage.
Problem family – racist towards ethnic minority
15-18 year olds – racist because it‟s fun and accepted by
11-14 year olds – bully other children with ethnic minority
origin include racist abuse.
4-10 year olds – perceive it as normal to hold racist views
and voice them without fear of contradiction.
o Three levels of violent racists:
Normal racists – least involved – not directed at ethnic
minority individuals, but differentiated normal and routine
Aggressive racists – young men 14-15 years who were
involved during school and continued to be hostile after
Violent racists – aged 12-13 – majority from socially
disadvantaged and feared housing estate – racism shown
when they were in proximity to Asians or Asian areas.
o Themes that can help explain different individual and group
expressions of racism and violent racism:
The continuum of criminality, violence and violent racism.
The continuum of normal, aggressive and violent racists.
The influence of locality.
Processes of inclusion and exclusion.
Work and the economy.
Fear of crime and violent racism.
A&TSI both victims and offenders.
Jonathan Brown case, 2002.
o Police intervened at the request of bystander.
o Asked to move on because he was just standing there.
o Ran from police and jumped of escalator and died in Westfield
o Hadn‟t done anything wrong but was doing abnormal things that
causes police to be called.
o Ran away even though he did nothing wrong.
CJS can be seen to have racist elements.
Over 14% of Australia‟s prison population are of Indigenous origin. Nationally, A&TSI are in prison at 13x the rate of non-Aboriginal people
How this has happened
Lack of enfranchisement – the treatment of white superiority has left a
situation that has been compounded by government neglect.
Governmental neglect – lack of care/interest or not wanting to say
they‟re doing the wrong thing. Leads to a misrepresentation.
Collective trauma – need to think of past situations through history to
where A&TSI people will be treated somehow as worthy of being
singled out by state officials whenever they interact with the state.
Over-representation in the CJS
o 31% of Indigenous males and 9.4% of Indigenous females aged
over 13 have been arrested between 1989-1994.
o The majority of offences related to intoxication.
o Low level criminal offences – e.g. swearing.
o Need to ask whether they are offenders and whether they
deserve to be arrested and when.
o Indigenous persons 13x more likely to be in prison than non.
o WA – 21x.
o Indigenous 3x more likely than the NSW average to be the
victim of murder, sexual assault, sexual assault specifically
against children and assault.
o Seen as a higher proportion of offenders and victims of
traditional understandings of crime.
Race: theoretical scholarship – positions of race
o Need to recognise race as a constant negotiation, not fixed but
always being created and recreated.
E.g. before 1948 the British in India saw Indians as being
of lower class and positioned them as servants, etc.
Now we don‟t position them in this context of superiority –