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Crime,
Criminality
and
Criminal Justice
Third Edition

Rob White
Santina Perrone
Loene Howes
vi Contents

CHAPTER 5: CRIME AND SOCIAL INEQUALITY.................................. 107

Thinking about inequality................................................................................ 108
Community resources, crime and criminality.................................................. 111
Intersections: migration, ethnicity and crime.................................................. 121
Intersections: Indigenous people, colonialism and criminality........................ 126

CHAPTER 6: CRIME AND SOCIAL DIFFERENCE................................. 133

Transforming difference into deviance: ethnic minority groups in
western Sydney.............................................................................................. 134
Social difference and subordinate status: gender-​patterned crime................ 138
Social difference and feared status: discourses surrounding disability.......... 143
Status offences and social difference: juvenile crime..................................... 147
Sexuality and social difference....................................................................... 151

CHAPTER 7: CRIMES AGAINST PROPERTY........................................ 157

Property as a relationship............................................................................... 158
Social dynamics of property crime................................................................. 161
Vandalism and crimes against property.......................................................... 173

CHAPTER 8: CRIMES AGAINST THE PERSON.................................... 181

Street violence and violent crime.................................................................... 182
Heterosexism and homicide........................................................................... 193

CHAPTER 9: CRIMES AGAINST CONVENTION................................... 205

Deviancy and conformity................................................................................ 206
Drugs and alcohol........................................................................................... 210
Public order offences...................................................................................... 218
Animal abuse.................................................................................................. 224

CHAPTER 10: CRIMES OF THE POWERFUL........................................ 231

White-​collar and corporate crime................................................................... 232
Class and crimes of the powerful................................................................... 236
Measuring crimes of the powerful................................................................... 238
State crime..................................................................................................... 249

CHAPTER 11: TRANSNATIONAL CRIMES AND GLOBAL

CRIMINOLOGY........................................................................................ 259
Studying transnational crime.......................................................................... 260
State-​sponsored violence............................................................................... 265
States in denial............................................................................................... 269
Terrorism........................................................................................................ 271
Human trafficking........................................................................................... 273
Transnational environmental harm and eco-​global criminology...................... 275

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 Contents vii

CHAPTER 12: ECO-​CRIME AND GREEN CRIMINOLOGY................... 281

What is green criminology?............................................................................ 282
Eco-​crime....................................................................................................... 284
Categorising environmental harm................................................................... 288
Environmental victims..................................................................................... 290
Responding to eco-​crime............................................................................... 293

CHAPTER 13: CYBERCRIME AND DIGITAL AND

COMMUNICATIONS TECHNOLOGIES................................................... 298
Cybercrime and cyber-​safety......................................................................... 299
Electronic theft................................................................................................ 304
Cyber-​bullying................................................................................................ 307
Sexting............................................................................................................ 310
Human rights and cyber-​security.................................................................... 313

PART 2: INSTITUTIONS OF CRIMINAL JUSTICE................................. 319

CHAPTER 14: POLICE ROLES AND TECHNIQUES.............................. 327

Roles and task orientations............................................................................ 328
Private policing............................................................................................... 332
Police organisational structures and operational strategies........................... 334

CHAPTER 15: DIFFERENT POLICING FOR DIFFERENT PEOPLE...... 350

Differential policing......................................................................................... 351
Over-​policing.................................................................................................. 351
Under-​policing................................................................................................ 358
Police culture.................................................................................................. 362
Police accountability....................................................................................... 366

CHAPTER 16: FORENSIC STUDIES...................................................... 373

Scoping the field............................................................................................. 375
Application of forensic science to law............................................................ 379
New directions in forensic applications.......................................................... 386

CHAPTER 17: LAW AND THE LEGAL PROFESSION............................ 394

Liberal democracy and the law....................................................................... 395
The concept of law......................................................................................... 396
Legal systems................................................................................................. 397
Making the law................................................................................................ 403
Key players in the legal system....................................................................... 405

CHAPTER 18: COURTS AND COURT PROCESSES............................. 413

The protections of due process...................................................................... 413
The courts....................................................................................................... 416

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viii Contents

Interpreting the law......................................................................................... 421

A question of impartiality................................................................................ 422

CHAPTER 19: JUVENILE JUSTICE........................................................ 427

The social context of youth offending............................................................. 428
The context of juvenile justice........................................................................ 430
Juvenile justice systems and responses......................................................... 436
Social justice, criminal justice and justice reinvestment................................. 439

CHAPTER 20: ACCESS AND ALTERNATIVES TO JUSTICE................ 445

Access to justice: critiques............................................................................. 446
Alternative dispute resolution......................................................................... 456
Community legal centres and paralegals........................................................ 460

CHAPTER 21: JUDICIAL DECISIONS AND SENTENCING................... 466

The nature of judicial decision-​making........................................................... 467
Methods of determining sentences................................................................ 481
Sentencing penalties...................................................................................... 486
Sentencing debates and reforms.................................................................... 490

CHAPTER 22: PUNISHMENT AND PENALTY....................................... 500

A historical account of punishment................................................................ 501
An interpretive framework............................................................................... 511

CHAPTER 23: INCARCERATION AND PRISONISATION..................... 524

Prisons, prisoners and imprisonment............................................................. 525
Prison objectives and policy contexts............................................................ 532
Dangerousness and violence.......................................................................... 535
Alternatives to use of prisons......................................................................... 546

CHAPTER 24: COMMUNITY CORRECTIONS....................................... 553

Community corrections: the historical context............................................... 554
Community-​based sanctions.......................................................................... 555
The rationale for community corrections........................................................ 563
The impact of community corrections............................................................ 567
Prisoner release and post-​prison transitions.................................................. 572
Questioning community-​based social control................................................. 581

CHAPTER 25: REHABILITATION AND RESTORATIVE JUSTICE......... 586

Recidivism and desistance............................................................................. 586
Rehabilitation and reintegration...................................................................... 589
Working with offenders................................................................................... 590
Restorative justice and generativity................................................................ 594

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 Contents ix

CHAPTER 26: CRIME PREVENTION..................................................... 602

Conceptualising community crime prevention................................................ 603
The notion of ‘community’.............................................................................. 605
Strategies of community crime prevention..................................................... 608

Glossary.......................................................................................................... 629
References...................................................................................................... 639
Index............................................................................................................... 695

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x

LIST OF FIGURES

5.1 Prison entrants’ employment/​education status in last 30 days, 2015

(numbers).............................................................................................116
5.2 Imprisonment rate, selected country of birth, 2017...............................122
6.1 Dynamics of deviancy...........................................................................136
7.1 Volume and costs of crime, excluding arson, fraud and drugs, 2011
(percentage).........................................................................................163
7.2 Burglary, 2015 (rates per 100,000 people)............................................165
7.3 Short-​term and profit-​motivated MVT by type of vehicle, 2016–​17
(percentage).........................................................................................167
7.4 Property crimes, 2003–13 (rate per 100,000 persons)..........................168
7.5 Other thefts by location, 2013 (percentage)..........................................169
8.1 Violent crimes, 2010–​17 (rate per 100,000 persons).............................183
10.1 Typology of corporate criminal conduct................................................235
11.1 Becoming a terrorist.............................................................................273
12.1 Key considerations of environmental harm............................................288
15.1 Police culture........................................................................................363
18.1 The hierarchy of courts in Australia.......................................................417
21.1 Criminal cases finalised in Magistrates Magistrates’ Courts,
2016–​17, by method of finalisation.......................................................468
21.2 Criminal cases finalised in higher courts, 2016–​17, by method
of finalisation........................................................................................468
21.3 Principal sentence of adult male defendants found guilty
in any court, 2016–​17..........................................................................487
21.4 Principal sentence of adult female defendants found guilty
in any court, 2016–​17..........................................................................487
21.5 Principal sentence of adult defendants found guilty in Magistrates
Magistrates’ Courts by most serious offence, 2016–​17........................489
21.6 Principal sentence of adult defendants found guilty in
higher courts by most serious offence, 2016–​17..................................490
23.1 International imprisonment rates, 2008 and 2018.................................527
23.2 Imprisonment rates in Australian states and
territories (per 100,000 adult population), 2017....................................528

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 xi

23.3 Age-​standardised imprisonment rates (per 100,000 adult population)

by Indigenous status, 2007–​17............................................................530
23.4 Corrective services expenditure per offender per day, 2016–​17,
by jurisdiction.......................................................................................534
24.1 Persons in community-​based corrections, 2017 and 2018,
by type of order (number).....................................................................563
24.2 Proportions of custodial and community-​based correctional
orders, 2018........................................................................................568
24.3 Persons in community-​based corrections, 2015–​18,
by type of order (number).....................................................................568
24.4 Persons in prison and community corrections 2006, 2012
and 2018 (number)...............................................................................570
24.5 Community corrections rates by state and territory, 2015–​18...............570
24.6 Real net operating expenditure per offender per day
(2016–17 dollars)..................................................................................571
26.1 Routine activities theory........................................................................610
26.2 Crime prevention and car theft.............................................................623

LIST OF TABLES

1.1 Methods of research..............................................................................20

5.1 Crimes of the less powerful..................................................................117
5.2 Crimes of chronic disadvantage...........................................................120
9.1 Offender rate for public order offences 2016–​17 by Indigenous
status (selected states and territories)...................................................221
10.1 Crimes of the powerful.........................................................................244
10.2 A complicity continuum of state crime..................................................250
10.3 Crimes by the state..............................................................................251
10.4 Crimes within the state.........................................................................253
11.1 ‘International crimes’............................................................................261
11.2 Studying transnational crime................................................................263
11.3 State-​sponsored violence.....................................................................265
11.4 Geographical scale and environmental harm........................................277
12.1 Eco-​justice and victims.........................................................................292

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xii List of Tables

14.1 Composition of Victoria Police as at 24 June 2017—​sworn

and unsworn personnel by rank and gender (full-​time equivalent).........335
14.2 Models of policing................................................................................340
14.3 Innovations in policing and their role in crime prevention.......................346
20.1 Formal and informal justice: strengths and weaknesses........................460
21.1 Forms of plea negotiations in Victoria’s courts......................................472
21.2 Jury exemptions and exclusions...........................................................477
21.3 Factors relevant to sentencing..............................................................484
22.1 Objectives and principles of criminal punishment..................................506
23.1 Imprisonment rates in Australia—prisoners per 100,000 adults
by jurisdiction, 2007–17.......................................................................529
23.2 Most serious offence of prisoners sentenced in 2017, by sex...............537
24.1 Community correctional dispositions in Australia..................................556
25.1 Prisoners released who return to prison under sentence within
two years (percentage), 2012–​13 to 2016–​17......................................587
25.2 Previous imprisonment by current offence and Indigenous status,
30 June 2017.......................................................................................587
25.3 Prisoners released during 2016–​17 who returned to corrective
services with a new correctional sanction within two years
(percentage).........................................................................................588
26.1 Approaches and techniques of situational crime prevention..................609

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 xiii

ACKNOWLEDGMENTS

The author and the publisher wish to thank the following copyright holders for
reproduction of their material.
Cover: Stocksy/Rialto Images
Australian Institute of Criminology as © Commonwealth of Australia, p. 479; Copy-
right © State of Victoria, Australia Copyright in all legislation of the Parliament of the
State of Victoria, Australia, is owned by the Crown in right of the State of Victoria,
Australia. Disclaimer: This product or service contains an unofficial version of the
legislation of the Parliament of State of Victoria. The State of Victoria accepts no
responsibility for the accuracy and completeness of any legislation contained in this
product or provided through this service, pp. 312–313.
Every effort has been made to trace the original source of copyright material
contained in this book. The publisher will be pleased to hear from copyright holders
to rectify any errors or omissions.

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 PART 1
CRIME AND CRIMINALITY
Introduction: understanding criminal justice
Crime and victimisation are important issues of concern to the public and Crime
policy-​makers alike. Part 1 of this book is about crime and victimisation in Acts that are legally
Australian society. It describes and analyses various kinds of crime-​related prohibited by the
harm, most of which are deemed to be ‘criminal’ in the eyes of the law. state and deemed
to be deserving of
In doing so, it traces the general profile, patterns and trends of various punishment and
crimes—​from traditional street crimes, such as property crime and crimes control.
against the person, to crimes of the powerful, from white-​collar crime and
state crime to transnational crime, including war crimes, environmental crime Harm
and cybercrime—​and explores their social dynamics and consequences. An Physical or other
kinds of injury,
important theme of Part 1 is the critical role of social difference in determining distress or damage
who commits which kinds of crime against whom, and how this influences the to humans,
responses of the state and members of society to both the perpetrator and environments and
non-​human animals
those impacted by their crimes. resulting from acts
The following chapters commence by considering how categories of state-​ or omissions that
sanctioned crime and recognition of their corollary, victims, change with the are either legal or
illegal.
passage of time, through the criminalisation and decriminalisation process.
This section recognises and explores the influence of social opinion on the conceptualisation of,
and state response to, crime and deviance. Instrumental to understanding the social construction
of crime is an examination of the media, and their influence on social perceptions of and response
to crime.
A brief overview of criminological theories or explanations of crime, and an examination of the
main categories of crime, follows. The emphasis in this part of the book is on tracing the social
construction of crime, the prevalence of various types of criminal or antisocial behaviour, the profile
of those who engage in this behaviour and the contours of social harm associated with these acts.
The historical evolution of theorising about and responding to victims of crime is also explored, with
an emphasis on underscoring the process of social construction of victimhood.
The question of how we define crime, and how we define the perpetrators and victims of crime,
is inextricably bound up with social processes. Crime and victimisation are not socially neutral
concepts, nor is society’s conceptualisation and response to these phenomena static. For example,
men are more likely than women to engage in violent crimes; working-​class people are more

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likely than middle-class people to be prosecuted for offending behaviour, especially in regard to
street offences, with the notable exception of sexual assault; and sexual assault is overwhelmingly
perpetrated by men against women, who are disproportionately the victims of such crime. In other
words, social divisions—based upon aspects of identity such as class, gender, ethnicity, Indigenous
status, age, disability and religion—have major influences on who does what to whom and why,
as well as how the criminal justice system responds. Inequalities and social differences, and the
intersection between these aspects of identity, must be taken into account if we are to understand
fully the social nature of crime and its control in Australian society (Bartels 2012a).

Defining crime
‘Crime’ is not a straightforward concept. There are in fact many diverse conceptions of crime,
each reflecting a different scientific and ideological viewpoint. Hagan (1987), for example, identifies
seven different approaches to the definition of crime, ranging from a ‘legal-consensus’ definition to
a ‘human rights’ definition. For present purposes, we can summarise broad differences in definition
as follows:
• Formal legal definition: crime is a prohibited activity defined as such by the state; that is, if an
act is proscribed by the criminal law, and is subject to state sanction in the form of a specific
penalty, then it is a crime.
• Social harm conception: crime encompasses both criminal offences (e.g. assault) and civil
offences (e.g. negligence), given that each type of action or inaction brings with it some type of
harm. According to this perspective, all acts resulting in harm should attract some sort of penalty.
• Cross-cultural universal norms perspective: crime is universally understood; in essence, it
does not vary across cultures. Thus, murder is murder regardless of the society in which it
is committed, and we can therefore postulate conduct norms that cut across diverse cultural
backgrounds.
• Labelling approach: crime only exists when there has been a social response to a particular
activity that labels that activity as criminal. If there is no label, there is, in effect, no crime.
• Human rights approach: crime occurs whenever a human right has been violated, regardless
of the legality or otherwise of the action. Such a conception expands the definition of crime to
include oppressive practices such as racism, sexism and class-based exploitation.
• Human diversity approach: deviance represents a normal response to oppressive or unequal
circumstances. A major focus here is on power relations, and the attempts by dominant groups
to restrict human diversity of experience, language and culture (e.g. the interventions of the
British Empire in reordering Indigenous peoples’ ways of life).
From a strictly legal perspective, the answer to ‘what is crime?’ is an unproblematic given; it is
simply what the law says it is (see White, Haines & Asquith 2017). In this view, the state has a central
place in marking out the boundaries of right and wrong by defining what is criminal and what is not. For
an act to be criminal, it must be legally prohibited by the state and sanctions must apply. A failure to act,
where the law imposes a duty to do so (referred to as an omission), is also illegal and punishable by law.
According to this perspective, the state thus has the ultimate power to shape the reality of crime and
how society responds to that reality. When it comes to how most criminal justice institutions operate,

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 the formal legal definition of crime is the primary consideration, even though the above-mentioned
perspectives on crime might also shape official reactions to behaviour that could be seen as harmful
but not legally criminal. One of the key limitations of a formal legal definition of crime, however, is that
it provides a narrow conception of harm. Furthermore, it often disregards the issue of state-sponsored
actions that may themselves be sources of considerable harm, but which are not criminalised by that
self-same state (Maier-Katkin et al. 2009; see also Chapters 10, 11 and 12).
Most sociologists and criminologists adopt a much wider definition of crime that encompasses
notions of ‘harm’ and ‘deviance’, which are not necessarily acknowledged as criminal by the state.
For some theorists, the key emphasis is on a human rights approach to harm, which introduces the
concept of universal rights—inalienable rights that all governments should guarantee to all persons,
given that a failure to do so negatively impacts human prospects and wellbeing—and the equitable
distribution of such rights. Universal rights may include security rights (the prevention of basic physical
and psychological harms from genocide, torture, murder, rape etc.), as well as economic rights (the
right to private property), political rights (the right to vote public officials into office) and autonomy rights
(freedom of speech, assembly and press) (see e.g. Loader & Sparks 2010; Murphy & Whitty 2013;
Schwendinger & Schwendinger 1975; Talbott 2010, 2005). In many cases, harmful actions, such as
price fixing, tax evasion or preventable workplace ‘accidents’, are ignored or downplayed by agencies
of criminal justice, even though they cause great social harm, including death (see Chapters 10 and 20).
For others, the emphasis is less on defining certain acts as bad or good than on examining the social
processes by which an act comes to be seen as a crime. According to this perspective, the law is not
an external, objective truth that is applied consistently; the concern is therefore to explore the group
interactions and institutional procedures that make certain people and certain actions more liable to be
labelled criminal than others (see e.g. Muncie 1996; Rubington & Weinberg 1978).
From a historical and cross-cultural perspective, we find that legal definitions of crime are
transitory and relative. ‘Crime’ varies greatly depending upon the historical period, and the social
and cultural context within which it operates. In medieval Europe, for example, when the Christian
Church was the arbiter of what was deemed to be right and wrong, key crimes included heresy (i.e.
going against Church doctrine and beliefs) and usury (charging interest on money lent to another
person). With the advent of secular systems of law, crime began to be defined less in religious
terms and more in respect to property rights (e.g. theft) and acts against the state (e.g. treason)
(see Chapter 22). Comparative analysis shows us that what is considered a crime in some countries
is not regarded criminal in others and that, within any given country, an act may be defined into
(criminalised) or out of existence (decriminalised) over time. This national and temporal variability in
legislated crime includes the following examples (Asal et al. 2012; Bibby & Harrison 2014; Duncan
2017; Edwards 2017; Grenfell & Hewitt 2012; Nossiter 2014; O’Malley 2013a; Powell 2010; Rankin
2011; SBS World News 2017; Singh et al. 2018; The Age 2013a; The Guardian 2018; Titterington
et al. 2013; Winsor 2017; World Health Organization 2018):
• Bigamy is considered illegal in Australia, whereas in many Muslim-majority countries,
polygamous relations, whereby men are permitted to have up to four wives at the same time,
are legalised.
• While permissible in Australia, approximately 11 countries, including France, the Netherlands,
Belgium and Chad, have banned or partially banned the wearing of traditional Islamic dress in
public, specifically the burqa and the niqab, which cover all or most of the face.

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• Euthanasia—the right to die, either by physician-assisted suicide, active euthanasia (a
doctor administering a lethal injection) or peaceful deliverance (suicide via self-administered
intervention)—is permitted in some form in Belgium, Luxembourg and the Netherlands, and
Canada among other countries. While the subject of longstanding debate and proposed law
reform across Australia, Victoria is the only jurisdiction to have legalised physician-assisted
dying for the terminally ill (effective from mid-2019).
• The physical punishment of children (including but not restricted to smacking, slapping or
spanking with a hand or implement) is prohibited in 53 countries, including Sweden, Germany,
New Zealand, South Sudan and Venezuela, but is generally considered legal in Australia, the
United States, Canada and the United Kingdom, with some restrictions.
• The use of drugs, such as alcohol or cannabis, is subject to widely varying rules and sanctions
across countries. For example, after years of prohibition across the United States, nine states
and Washington DC have recently legislated to legalise marijuana for adult use, and over 30
other states have approved the use of marijuana for medical purposes. New Zealand has
legalised all psychoactive substances (e.g. synthetic cannabis) containing ingredients that
meet safety standards.
• Female genital mutilation (the surgical cutting of the genitalia to ensure virtue by controlling
sexual desire), which is illegal in Australia, is considered a traditional rite of passage into
womanhood in regions of western, eastern and north-eastern Africa, some parts of the Middle
East and Asia, and among some groups of migrants from these regions.
• Same-sex marriage has been legalised in only 25 countries around the world, including the
Netherlands, Belgium, Sweden, Norway, the United States, the United Kingdom, New Zealand,
Canada, Iceland and, since December 2017, Australia.
• Homosexuality, decriminalised in Australia and other Western countries some years ago,
remains illegal in approximately 72 countries, primarily located in Africa and the Middle East,
attracting severe penalties such as life imprisonment (e.g. Uganda) and corporal and capital
punishment (e.g. Iran and Saudi Arabia).
• Transgender status has recently been recognised by the High Court of Australia, paving the
way for representations of ‘sex’ to move beyond the normative gender binary of male and
female currently reflected in the law and legal documents. However, many states and territories
impose requirements for gender recognition that have been criticised by the Australian Human
Rights Commission, including undergoing psychiatric diagnosis or certification by a medical
professional, and sexual reassignment surgery.
• Abortion laws have been liberalised to varying degrees in Australia from 1998 and in many other
countries. However, abortion remains totally illegal in 26 countries (e.g. Malta, Egypt, Iraq and
Tonga) and available but restricted in many more (e.g. Italy, Brazil, Mexico, New Zealand and
Indonesia).
• Laws have been introduced in Australia to criminalise violations of privacy in public by use of
emerging information and communication technologies (e.g. ‘upskirting’ and ‘downblousing’)
and the unauthorised distribution of sexual imagery (e.g. sexting and image-based abuse,
including the non-consensual sharing of intimate images or the threat of doing so).

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 • Internationally, disputes and negotiations continue over how to define war crimes, terrorism
and environmental crimes, and the acceptability of practices such as state-sanctioned torture
(see Chapters 11 and 12).
• Conflicts between states may stem, in part, from disagreements over what is considered a
crime (e.g. bulldozing residential buildings in an occupied territory, such as Gaza) or simply
national security (e.g. the military occupation of Iraq as a forward defence against terrorist
attacks on Coalition allies).
We could also consider the question ‘what is crime?’ from the perspective of media portrayals
(see Chapter 2). The popular image of crime is unquestionably that of street crime, involving
assaults, murder, theft and sexual assault, largely committed by strangers. These images are
bolstered by advertising that explicitly uses the fear of crime as a means to sell security devices
and promote private policing as the answer to the presumed problem. Media emphasis tends to be
on certain types of predatory crime, and such crime tends to be sensationalised. Moreover, much
emphasis is given to the distinctiveness of criminals (e.g. features such as skin or hair colour), and
the appropriateness of victim behaviour (e.g. how they were dressed or how much alcohol they had
consumed); hence, criminality and victimhood are frequently based on stereotype and caricature
(see Chapter 4). In the main, complex crimes and crimes of the powerful tend not to be dealt with
in either mainstream or fictional accounts of crime (see Chapter 10).
Finally, if we ask the question ‘what is crime?’ from a commonsense and everyday perspective,
we might find that it operates as a loose notion based upon morality. Most people break the law
at some stage in their lives, but common crimes (e.g. the use of ‘soft’ illegal drugs) do not always
translate into the offenders being perceived or responded to as criminals by members of society
at large. Crime is frowned upon, but certain types of crime are nevertheless more likely to be
regarded as socially acceptable, despite such behaviours being legally proscribed (e.g. perceived
or victimless crimes such as speeding, fare evasion, vagrancy and prostitution). Of course, there are
no universal moral truths; perceptions of moral appropriateness reflect the sociological composition
and values of any given society at any point in time. Furthermore, morality and the law are not
always congruent. Some actions considered lawful (e.g. the sale and distribution of non-violent
and non-child-related pornography, prostitution, abortion, voluntary assisted dying and same-sex
marriage) may be wholly or partially legal, but still be considered immoral, especially by those
with strong religious beliefs (see e.g. Medew 2016a on the issue of conscientious objection to
performing surgical abortions by some medical practitioners). It is for this reason that law and, by
extension, the definition of crime, is seen by some as less of an expression of morality and more of
an expression of power (Cotterrell 1992). It is ultimately the state that assigns a criminal status to
individuals, regardless of general public opinion or sentiment. The second part of this book explores
how, over time, public opinion and shifting conceptions on morality can influence changes in the
criminal law and thus a shift in what is considered a criminal, health or moral problem.

Crime and criminal law

The criminal law identifies those behaviours deemed by lawmakers to be deserving of punishment
and control. Which acts are considered wrongful reflects a historical process; over time, various
acts are prohibited (or, conversely, legalised) into the future because of the legal precedents set by

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the past. This can make law reform slow and difficult, as demonstrated by the prolonged processes
of recasting the concept of spousal conjugal rights to intercourse as a criminal offence in the case
of spousal rape (Larcombe & Heath 2012). Under the law of coverture, women were seen to be
fused into the legal identity of men upon marriage. In such a (fictional) legal unity, there could be no
concept of rape and, furthermore, it was assumed that women granted consent to sexual relations
upon entering the marriage contract. It took a concerted struggle before harm within the marriage
contract was socially and legally acknowledged. It was not until 1993 that the United Nations High
Commissioner for Human Rights published the Declaration on the Elimination of Violence against
Women (1993), which established marital rape as a human rights violation. To this day, some United
Nations member states only criminalise rape in marriage where the individuals are legally separated,
and non-member states vary widely in their conceptualisation of non-consensual marital intercourse
(Equality Now 2017).
Which acts are considered harmful is also a political process, in which the contemporary tenor
of law-and-order politics sets the parameters and tone of legislation relating to crime and crime
control (see further Chapters 21 and 22). To put it differently, criminal laws are a human product,
but cannot be reduced to human behaviour. They are social constructions forged in historical
and social circumstances that put their unique stamp upon what and who is considered to be
harmful enough to be criminalised at any point in time (Matthews 2009). Clearly, not all harmful acts
(interpersonal or social) are criminalised. This alone makes it clear that decisions about the criminal
law are contested rather than immutable. The overall aim of criminal law is to prevent certain kinds
of behaviour regarded as harmful or potentially harmful, and to do so through a rational system of
adjudication and punishment. The challenge for lawmakers is to choose which harms to criminalise
and which to deal with through other types of social regulation (e.g. civil proceedings).
The key purposes of criminal law are encapsulated in three broad objectives (Findlay et al. 2005):
1 Moral wrongness: the criminal law is a vital instrument in deterring immoral behaviour.
2 Individual autonomy: the criminal law should only be used against behaviour that injures the
rights and interests of other people (the ‘harms to others’ approach).
3 Community welfare: the principal purpose of criminal law is to protect the physical wellbeing of
members of a community.
Importantly, the different reasons or purposes of criminal law are frequently in conflict with
each other, and these contradictory rationales, in turn, reflect specific ideological or philosophical
differences. For instance, conservative versions of New Right thinking about law and order see the
upholding of certain moral standards as a crucial aspect of criminal law. Libertarian perspectives
within the broad New Right framework, however, see such legislation as an encroachment upon
individual rights and liberties. While the first perspective favours criminalisation of activity deemed
to be immoral, the second seeks to keep out of the criminal court those activities freely chosen by
individuals, which appear to do no real harm to others around them (White, Haines & Asquith 2017).

The act and the intent

In most cases, according to criminal law, two elements must be present to constitute a crime—the
act and the intent:
All crimes comprise some form of prohibited conduct which may be an act or (in
rare cases) an omission. This conduct element denotes the external or physical

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 component of a crime. Another element found in many (but not all) crimes is the
mental state of the person at the time when the prohibited conduct was performed.
This may take several forms such as intention, recklessness or knowledge in relation
to the prohibited conduct … However, there are many crimes, known as offences of
strict liability and of absolute liability, which do not require any such awareness at all.
(Findlay et al. 2005: 20)
The conduct element of a crime refers to the accused’s action (actus Actus reus
reus); that is, ‘guilty act’. This refers to the physical aspect of committing a A Latin term
meaning ‘guilty
crime. The prohibited conduct must have been performed voluntarily (e.g. not
act’. An element
while under duress, or while sleepwalking). The mental element of a crime of criminal
refers to a determination that the accused’s conduct was accompanied by responsibility
a prescribed state of mind (mens rea); that is, ‘guilty mind’. This reflects the comprising
the physical
idea that people ought to be judged by their free and conscious choice of components of a
action. crime. These may
In some instances, the law will ignore the subjective approach (which be wrongful acts,
omissions or a
focuses on the mental element) in favour of arguments based on community
state of affairs that
welfare or public interest (particularly if future crime is to be prevented constitute a violation
or reduced). This is particularly the case, for example, in regard to of the law.
environmental law.
The issue of legal personhood is wrapped around the notion that all adults Mens rea
have the necessary mental capacity to make judgments and take responsibility A Latin term
meaning ‘guilty
for their actions. Exceptions to this mental responsibility element of crime
mind’. An element
have to be proven in court, as in the case of those who can show that they of criminal
were insane (within certain defined legal prescriptions) at the time when the responsibility
comprising the
prohibited behaviour took place—this is known as the M’Naghten Rules (see
mental components
Finnane 2012 for a review of its historical application in Australia). The age of of a crime. The
criminal responsibility in Australia across all states and territories is 10—an focus is on criminal
age below which a child is deemed by law to be incapable of committing a intent; that is, a
person’s awareness
criminal offence. Furthermore, between the ages of 10 and 14, children are that their actions
presumed incapable of wrongdoing under legislation or common law (this is were wilful and
known as the legal doctrine of doli incapax), and this presumption must be wrongful.
rebutted before criminal proceedings can be brought against them (i.e. the
prosecution must prove beyond a reasonable doubt that the child knew that
the act was wrong ‘as distinct from an act of mere naughtiness or childish mischief’ (Lord Lowry in
C (A minor) in v DPP [1955] 2WLR 383; see also Richards 2011; Schetzer 2000; Urbas 2000).
The issue of criminal responsibility can, however, be problematic. This is especially true in
relation to corporations, where the concept of mens rea is difficult to apply. Notwithstanding these
difficulties, the concept of corporate criminal responsibility has been successfully established, to
varying degrees, in many jurisdictions, including Australia, the United Kingdom, the United States
and Canada (see e.g. Alvesalo-Kuusi et al. 2018; Perrone 2000; Taylor & Mackenzie 2013; Woodley
2013), albeit to limited practical effect in the specific area of criminal law.

OXFORD UNIVERSITY PRESS

The criminalisation process
Assessment of the conduct and mental elements of crime provides some inkling of the social
dynamics that underpin criminality. What is deemed to be criminal and who is defined as an offender
involve a social process in which officials of the state formally intervene and designate certain acts
and certain actors as warranting a criminal label. Until an act, or actor, has been processed in
particular ways by the state, there is no ‘crime’ as such. This is regardless of the actual behaviour
that takes place. In other words, crime does not ‘exist’ until there has been an official reaction to
the event.
To become a criminal is to be labelled so by the criminal justice system. To understand this, we
have to shift the focus away from the discussion of varying definitions of crime (including arguments
regarding different types of social harm and whether to criminalise these), to an analysis of the
ways in which something or someone becomes institutionally recognised as being criminal. In this
account, the emphasis is on the factors that determine the social status of an event or person.
What is important, for present purposes, is that how criminal justice officials (especially the
police) intervene in any given situation has a direct impact on whether any particular event, or any
particular individual, will be officially criminalised. The criminalisation process is contingent upon
how discretion is used throughout the criminal justice system. Our attention is thus drawn to the
role of criminal justice institutions in constructing crime, rather than to the actual act or conduct
itself.
To illustrate this point, it is useful to consider how the process of becoming a young offender
involves a number of steps and pathways into, or diversions from, the criminal justice system, such
as (ABS 2014a):
• A young person enters into the criminal justice system as a result of someone reporting an
event to the authorities, or the police observing a young person in the act of doing something
illegal or antisocial.
• The police officer intervenes and an investigation is undertaken, involving questioning of the
young person. A crime may be deemed to have been committed but, in the case of a minor
offence, the investigating officer may exercise their discretion, simply deciding to move the
young offender along with or without issuing an unofficial caution.
• Depending on the nature of the behaviour observed or reported, and the attitude and cooperation
demonstrated by the young person, the police officer may decide to proceed further against the
alleged offender. The young person is taken to the police station, and the crime and victim(s)
(if applicable and identifiable) are recorded by police. At this stage, the officer may decide to
pursue non-court action against the young person. Where this involves a formal caution, the
young person’s parent(s)/legal guardian(s) or, where unavailable, an independent third person,
are called into the station for a tripartite discussion about the incident (police, young person
and their parent(s)/guardian(s) or independent representative).
• Alternatively, the young person may be diverted from court by police via the option of participation
in a family conference (or equivalent) or formal pre-court diversion program. Based on restorative
justice principles, these programs are designed to ensure that offenders accept responsibility for
the harms caused by their actions by requiring them to meet with any victims, as well as others
affected by the offence, and agree some form of reparation for the harm caused.

OXFORD UNIVERSITY PRESS

 • If the incident is more serious, the police officer may decide to formally proceed against the
young person via court action. Once formally charged with an offence, the young person will
generally be issued with a summons, which outlines the date they are required to attend court
and the reasons why.
• If the incident or alleged offence is very serious, then the young person may be required to
apply for bail. This enables the defendant to remain out of custody awaiting trial, on the basis
of a monetary guarantee and/or pledge to present before the court at the required time.
• In some instances, the option of bail will not be offered or an application for bail may be
declined, and the young person will be placed in detention on remand (i.e. in secure custody
awaiting trial).
• If the young person’s case proceeds to court (usually a children’s court, which has special rules
and procedures to take into account the special needs and circumstances of children), their
guilt or innocence is legally determined.
• If the young person is found guilty of an offence, the judge or magistrate can impose a variety
of sanctions (alternative penalties or dispositions), which range from simply issuing a warning
to imposing a fine or placing the young person on some kind of community-based behavioural
order (which restricts their activity, or demands that they attend special training or drug and
alcohol sessions), through to incarcerating a young person in a youth detention centre.
This story of a young person’s progress through the criminal justice system varies greatly in
practice, depending upon a wide range of factors, including:
• whether the incident was deemed a crime
• the visibility of the crime
• the presence of victims and the nature and extent of the harm occasioned
• whether the incident was detected by the police themselves or someone reported it to the police
• if the incident was reported to police, who reported it, and whether they were taken seriously
by the police
• the police resources available to deal the particular kind of crime
• the nature and strength of the evidence available to police
• the characteristics, attitude and behaviour of the young person
• whether and how well the young person, and/or their family and friends are known to police
• the statutory options available for processing the young person in the particular jurisdiction,
such as police cautioning schemes or juvenile conferencing options
• the influence of official reports by social workers and other professionals on how best to deal
with the young person
• how well the young person presents in the police station
• the attitude of the magistrate or judge in relation to the offence at issue and the appearance and
demeanour of the young person in court
• the quality of legal representation
• whether the young person has a previous criminal record.

OXFORD UNIVERSITY PRESS

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