There has been a great deal of media attention of late surrounding organised crime in Australia, after the 2009 death of Hells Angels bikie Anthony Zervas at Sydney Airport (Brown et al 2011) and the highly popular Underbelly series. This is only set to continue upon the announcement that the Herald will be releasing a special series in its new iPad edition about the history of organised crime. (Duffy 2011) Shortly following Zervas' death NSW parliament passed new legislation: Crimes (Criminal Organisations Control) Act 2009, in response to the "escalation in violent crime involving outlaw motorcycle gangs that has spilled into public places" (Rees, in Brown et al 2011, p.1068). This law has been openly criticised as being a threat to our civil liberties. It represents an overzealous response to an unlikely threat which is already dealt with under the Crimes Act 1990. The most controversy lies in Section 26 which criminalises association regardless of the action or intention of the accused, it is essentially a status offence. A status offence is one where criminal liability lies in the fact that someone is found in a particular position. (Brown 2011) I argue that this type of law is a threat to our liberty. One should be free to associate with whomever they choose so long as they act within the law. It is perfectly reasonable in my opinion for one to associate with a member of an outlawed gang without having any involvement in their criminal activities. Furthermore there have been movements to ban bikie colours and trademark insignias. I understand that we do not have a bill of rights in this country, but once we begin encroaching on basic rights: freedom of association, freedom of movement, freedom of expression, (Universal Declaration of Human Rights, in Cowdery, 2001) where does it end?
Mill's harm principle may be widely accepted as the foundations of criminal law. he states "the only purpose for which a power can be rightfully exercised over another member of a civilized community, against his will, is to prevent harm to others." Basically a persons liberty should only ever be restricted at the expense of a greater liberty. In my view banning someone from associating with who they choose or from expressing themselves through their attire is a restriction of liberty. It is not in keeping certain company or wearing certain clothes that you are harming another individual. The public concern surrounding bikie gangs is their association with the illicit drug industry and the level of violence that comes with such organised crime. By all means crack down on these offences to the full extent of the law, but let us not lose sight of the fact that we live in a free and equal society. As such we should not criminalise anyone prematurely.
References
Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney
Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia
Duffy M 2011, 'Banning popular pleasures led to the rise of the Mr Bigs', National Times, 31 May
http://www.smh.com.au/opinion/society-and-culture/banning-popular-pleasures-led-to-rise-of-the-mr-bigs-20110530-1fctv.html
Fife-Yeomans J 2009, 'Pubs, clubs ban bikies' colours', The Daily Telegraph, 7 November http://www.dailytelegraph.com.au/news/pubs-clubs-ban-bikies-colours/story-e6freuy9-1225795176272
Schonsheck J 1994, On criminalisation, Kluwer Academic Publishers, The Netherlands
Thursday, 2 June 2011
Just a Bunch of Plankers
This post in inspired by 'Planking an offence?' http://hayleycrim2027.blogspot.com/
When I first saw the reports indicating planking would be targeted as a criminal offence by police, I was shocked. This was before any serious planking related accidents had occurred. After the death of Acton Beale I paused for a moment to consider that perhaps the police were right to charge plankers, then I reconsidered. If criminalising a 'sport' is necessary under the guise of public protection where do we stop? Smoking and drinking are both still legal, and far more dangerous, in fact I am relatively sure alcohol has been involved in all planking related deaths. You know what else is dangerous, crossing the road without looking. But is this act of stupidity a criminal offence? No, people have always, and will continue, to do stupid things, we can not criminalise all of them.
The magnification of this craze has quickly escalated to near moral panic proportions. Cohen defined a moral panic as "a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media". (Cohen 2002) We can clearly see the media as the driving factor behind the call for action over planking, ironically, it is new media, that is, social media such as facebook, that allowed this fad to become mainstream in the first place. What many do not know is that this cult 'sport' has been around for a considerable time, with no notable deaths, in the form of 'extreme lying down'. (extremelyingdown.net, 2010) It is only due to the actions of an irresponsible few that this activity caught mass media attention and has been deemed dangerous, if not deadly, leaving politicians and law enforcement officials in a position where they feel compelled to act. In any case this is just an example of self victimisation, those who engage in the activity do so at their own risk. Using the full force of the law to protect us from our own actions is an example of paternalism. Joel Feinberg states "hard paternalism will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their own will, from harmful consequences of their fully voluntary choices and undertakings... since it imposes its own values and judgements on people 'for their own good'" (Schonsheck 1994, p.179). The real dangers of this activity are limited, without the previously mentioned contributing factors such as alcohol, and are restricted to those engaging in the behaviour. Let us end the madness before we become a complete nanny state. I say let the plankers plank, this is just a fad, being driven by those who most oppose it, as they grant it the added thrill of notoriety. Like all fads it too will die out soon enough, remember goldfish swallowing? No, me neither. As Hayley said lets not criminalise people for their idiocy, I agree, after all natural selection will surely take care of them for us...
References
Baskin B & Arnold R 2011, 'Planking: not illegal but police warn internet pranksters could face charges of trespass', Courier Mail, 13 May
http://www.couriermail.com.au/lifestyle/planking-not-illegal-but-police-warn-internet-pranksters-could-face-charges-of-trespass/story-e6frer4f-1226055142247
Cohen S 2002, Folk Devils and Moral Panics: The Creation of the Mods and Rockers, Routledge, London
Godfrey A 2011, 'How Brisbane planking death of Acton Beale is fueling a dangerous web craze', The Daily Telegraph, 17 May
http://www.dailytelegraph.com.au/news/national/how-brisbane-planking-death-of-acton-beale-is-fueling-a-dangerous-web-craze/story-e6freuzr-1226056501630
Schonsheck J 1994, On criminalisation, Kluwer Academic Publishers, The Netherlands
2010 'Extreme lying down' http://extremelyingdown.net/
When I first saw the reports indicating planking would be targeted as a criminal offence by police, I was shocked. This was before any serious planking related accidents had occurred. After the death of Acton Beale I paused for a moment to consider that perhaps the police were right to charge plankers, then I reconsidered. If criminalising a 'sport' is necessary under the guise of public protection where do we stop? Smoking and drinking are both still legal, and far more dangerous, in fact I am relatively sure alcohol has been involved in all planking related deaths. You know what else is dangerous, crossing the road without looking. But is this act of stupidity a criminal offence? No, people have always, and will continue, to do stupid things, we can not criminalise all of them.
The magnification of this craze has quickly escalated to near moral panic proportions. Cohen defined a moral panic as "a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests; its nature is presented in a stylized and stereotypical fashion by the mass media". (Cohen 2002) We can clearly see the media as the driving factor behind the call for action over planking, ironically, it is new media, that is, social media such as facebook, that allowed this fad to become mainstream in the first place. What many do not know is that this cult 'sport' has been around for a considerable time, with no notable deaths, in the form of 'extreme lying down'. (extremelyingdown.net, 2010) It is only due to the actions of an irresponsible few that this activity caught mass media attention and has been deemed dangerous, if not deadly, leaving politicians and law enforcement officials in a position where they feel compelled to act. In any case this is just an example of self victimisation, those who engage in the activity do so at their own risk. Using the full force of the law to protect us from our own actions is an example of paternalism. Joel Feinberg states "hard paternalism will accept as a reason for criminal legislation that it is necessary to protect competent adults, against their own will, from harmful consequences of their fully voluntary choices and undertakings... since it imposes its own values and judgements on people 'for their own good'" (Schonsheck 1994, p.179). The real dangers of this activity are limited, without the previously mentioned contributing factors such as alcohol, and are restricted to those engaging in the behaviour. Let us end the madness before we become a complete nanny state. I say let the plankers plank, this is just a fad, being driven by those who most oppose it, as they grant it the added thrill of notoriety. Like all fads it too will die out soon enough, remember goldfish swallowing? No, me neither. As Hayley said lets not criminalise people for their idiocy, I agree, after all natural selection will surely take care of them for us...
References
Baskin B & Arnold R 2011, 'Planking: not illegal but police warn internet pranksters could face charges of trespass', Courier Mail, 13 May
http://www.couriermail.com.au/lifestyle/planking-not-illegal-but-police-warn-internet-pranksters-could-face-charges-of-trespass/story-e6frer4f-1226055142247
Cohen S 2002, Folk Devils and Moral Panics: The Creation of the Mods and Rockers, Routledge, London
Godfrey A 2011, 'How Brisbane planking death of Acton Beale is fueling a dangerous web craze', The Daily Telegraph, 17 May
http://www.dailytelegraph.com.au/news/national/how-brisbane-planking-death-of-acton-beale-is-fueling-a-dangerous-web-craze/story-e6freuzr-1226056501630
Schonsheck J 1994, On criminalisation, Kluwer Academic Publishers, The Netherlands
2010 'Extreme lying down' http://extremelyingdown.net/
What the bleep is the point?
On Tuesday morning my twitter feed was sent into a spin on the news that the Victorian government was imposing on the spot fines for those caught using indecent language. I feel this is indicative of the type of event that can make news in the social media age. Issues that are relevant to the individual, evidently I must follow a lot of Victorians who engage in offensive language. News can be streamlined to your own interests and desires, not that I feel it's a good idea to only get your news from one perspective, contrarily I like to 'hate follow' some high profile conservatists, just to maintain perspective, as a bonus the anger makes me feel alive! But back to my point, if you follow people who share your own concerns, you can stay informed on the issues relevant to you, without the bias and agenda that comes with the filtered down version of events available in the commercial media. News can be sourced from people whose main purpose is not necessarily to appease the views of an institution. Meaning readers can escape the effects of the hypodermic syringe model, whereby they accept the media's depiction of events unquestioningly. (Marsh and Melville 2009)
Many are quick to criticise the effect of social media. Consider the recent case of CTB v Twitter Inc over the naming of Ryan Griggs despite his super-injunction (The trial Warrior 2011); or moral panics surrounding cyber bullying and sexting. There are just as many examples of the social media enterprise being used for the greater good. The recent 'slut walk' went viral over twitter and facebook rallying support for a worthy cause, making the arguably outdated and irrelevant concept of feminism resonate with an entirely new generation. So why the outrage over swearing legislation? These laws have actually existed for a great deal of time, in fact since 1966 you could face up to two years imprisonment for serious indecent language. (Madigan 2011) The difference was the matter had to go through the courts. This was expensive and there were large amounts of paper work involved for police. So surely dealing with this matter via a simple on the spot fine is a superior approach? Well no, not necessarily, a law has to actually be used to take effect so while this law has existed, it has remained largely symbolic. This is a classic example of technocratic justice, the drive for efficiency over the pursuit of justice.(Brown et al 2011) This reform may be imposed under the guise of saving police time and court costs, however this is simply untrue, as previously, pursuing such matters was probably not worth effort so did not occur. The greater ease this amendment has afforded police means we now run the risk of fines for profanities being handed out like speeding infringements. Ironically the fine for each of these offenses is roughly the same (Madigan, 2011). Which makes perfect sense considering one is potentially deadly, the other potentially offensive, wait a minute...?
Laurence H. Tribe said "An excess of law inescapably weakens the rule of law". Now that issues of wasting police time on paperwork needn't be considered we will just see more of these charges doled out thoughtlessly in response to an apparent deterioration in public behaviour. But will this achieve any substantial change? In his writing on overcriminalization Douglas Husak states "penal liability is unjustified unless it is imposed for an offense designed to proscribe a nontrivial harm or evil, and may not be inflicted unless the defendant's conduct is wrongful". He calls for a "stringent test of justification" for all legislation to avoid "cluttering our criminal codes" with mala prohibita offences, such as public profanities. Criminal legislation must have a legitimate and substantial state interest. One might claim, given the aforementioned uproar amongst the public, that this is simply untrue of this legislation. Given this law is aimed at remedying the "deterioration in public behaviour" we might apply the "three assumptions which must be satisfied before the particular rule can be expected to change behaviour" to this new approach.
1) Offenders must be aware of the rule.
Check.
2) Knowledge must be able to influence behaviour at the time of the offence.
Unlikely.
3) They must believe the perceived costs outweigh the perceived benefits of offending.
Given the profanity laden ridicule this announcement has attracted?
Evidently not!
(Brown et al. 2011, pp.107-8)
This is just another example of a government instigating a zero tolerance policy designed to illustrate action more so than to endorse any real change. "Every minor infraction is punished to the full extent of the law" (Cowdery 2001, p.26 ). It acts under the assumption that the "theory of selective incapacitation: that is, if you 'take out' minor offenders they will not progress to committing major offences" is an effective rule of law enforcement. The real consequence of this approach, not specific to this offensive language example but in a broader legal context, is that minor offenders are sent to institutions where they learn from major offenders. The logic of this tactic is, to me, unfathomable.
"We want them to be responsible, so we take away all responsibilities... we want them to be non-violent, so we put them where violence is all around. We want them to be kind and loving people, so we subject them to hatred and cruelty... We want them to quit hanging around with losers, so we put all the losers under one roof."
(Challeen 1994, in Matthews 2006, p.1)
References
Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney
Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia
Madigan, D 2011 'I say fiddle sticks to your swearing fines Mr Baillieu', The Drum, 1 June
http://www.abc.net.au/unleashed/2740602.html
Matthews B 2006, Intractable, Macmillian, Sydney
The trial warrior 2011 'CTB v. twitter, Inc. and unknown persons: trying to flog a dead horse', The Trial Warrior Blog, 23 May
http://thetrialwarrior.com/2011/05/22/ctb-v-twitter-inc-and-unknown-persons-trying-to-flog-a-dead-horse/
Many are quick to criticise the effect of social media. Consider the recent case of CTB v Twitter Inc over the naming of Ryan Griggs despite his super-injunction (The trial Warrior 2011); or moral panics surrounding cyber bullying and sexting. There are just as many examples of the social media enterprise being used for the greater good. The recent 'slut walk' went viral over twitter and facebook rallying support for a worthy cause, making the arguably outdated and irrelevant concept of feminism resonate with an entirely new generation. So why the outrage over swearing legislation? These laws have actually existed for a great deal of time, in fact since 1966 you could face up to two years imprisonment for serious indecent language. (Madigan 2011) The difference was the matter had to go through the courts. This was expensive and there were large amounts of paper work involved for police. So surely dealing with this matter via a simple on the spot fine is a superior approach? Well no, not necessarily, a law has to actually be used to take effect so while this law has existed, it has remained largely symbolic. This is a classic example of technocratic justice, the drive for efficiency over the pursuit of justice.(Brown et al 2011) This reform may be imposed under the guise of saving police time and court costs, however this is simply untrue, as previously, pursuing such matters was probably not worth effort so did not occur. The greater ease this amendment has afforded police means we now run the risk of fines for profanities being handed out like speeding infringements. Ironically the fine for each of these offenses is roughly the same (Madigan, 2011). Which makes perfect sense considering one is potentially deadly, the other potentially offensive, wait a minute...?
Laurence H. Tribe said "An excess of law inescapably weakens the rule of law". Now that issues of wasting police time on paperwork needn't be considered we will just see more of these charges doled out thoughtlessly in response to an apparent deterioration in public behaviour. But will this achieve any substantial change? In his writing on overcriminalization Douglas Husak states "penal liability is unjustified unless it is imposed for an offense designed to proscribe a nontrivial harm or evil, and may not be inflicted unless the defendant's conduct is wrongful". He calls for a "stringent test of justification" for all legislation to avoid "cluttering our criminal codes" with mala prohibita offences, such as public profanities. Criminal legislation must have a legitimate and substantial state interest. One might claim, given the aforementioned uproar amongst the public, that this is simply untrue of this legislation. Given this law is aimed at remedying the "deterioration in public behaviour" we might apply the "three assumptions which must be satisfied before the particular rule can be expected to change behaviour" to this new approach.
1) Offenders must be aware of the rule.
Check.
2) Knowledge must be able to influence behaviour at the time of the offence.
Unlikely.
3) They must believe the perceived costs outweigh the perceived benefits of offending.
Given the profanity laden ridicule this announcement has attracted?
Evidently not!
(Brown et al. 2011, pp.107-8)
This is just another example of a government instigating a zero tolerance policy designed to illustrate action more so than to endorse any real change. "Every minor infraction is punished to the full extent of the law" (Cowdery 2001, p.26 ). It acts under the assumption that the "theory of selective incapacitation: that is, if you 'take out' minor offenders they will not progress to committing major offences" is an effective rule of law enforcement. The real consequence of this approach, not specific to this offensive language example but in a broader legal context, is that minor offenders are sent to institutions where they learn from major offenders. The logic of this tactic is, to me, unfathomable.
"We want them to be responsible, so we take away all responsibilities... we want them to be non-violent, so we put them where violence is all around. We want them to be kind and loving people, so we subject them to hatred and cruelty... We want them to quit hanging around with losers, so we put all the losers under one roof."
(Challeen 1994, in Matthews 2006, p.1)
References
Brown, D et al. 2011, Criminal Laws, The Federation Press, Sydney
Cowdery, N 2001, Getting justice wrong: Myths, media and crime, Allen & Unwin, Crows Nest, Australia
Madigan, D 2011 'I say fiddle sticks to your swearing fines Mr Baillieu', The Drum, 1 June
http://www.abc.net.au/unleashed/2740602.html
Matthews B 2006, Intractable, Macmillian, Sydney
The trial warrior 2011 'CTB v. twitter, Inc. and unknown persons: trying to flog a dead horse', The Trial Warrior Blog, 23 May
http://thetrialwarrior.com/2011/05/22/ctb-v-twitter-inc-and-unknown-persons-trying-to-flog-a-dead-horse/
Abort Calls for Reform to Baby Killer Laws
On march 31 2011, Justine Hampton was sentenced to nine months imprisonment for dangerous driving causing grievous bodily harm. There is nothing extraordinary about this statement. Those who drive dangerously, take the risk of causing harm and going to jail. End of story. Well, not in this case. Brodie Donegan, the victim, was eight months pregnant at the time of the incident. She lost her baby as a result of her injuries. In the eyes of the law Brodie's baby did not constitue a life, only once a baby has taken its first breath outside of the womb can it be seen as a victim. Cue media interest and subsequent public outrage. Brodie and her unborn baby were framed by the media as the ideal victims, in "obvious need of protection... children are the archetypal innocent victims" (Surette 2007, p. 207) Justine on the other hand, who, at the time of the incident, was affected by a "cocktail of drugs" (ABC News, 2011) fitted perfectly into the role of the villain.
And so the stage was set for the standard media framing of these events in simplistic, dichotomous terms. The defenceless victim versus the drug riddled villain. Meyers has said "the innocent victim is cast in the vulnerable role" (Marsh and Melville 2009, p.107) This can be seen in the Daily Telegraph article which depicts Brodie as a woman nearing the uncomfortable end of her pregnancy, taking a walk to "stretch her restless legs", merely in the wrong place, at the wrong time.Further sympathy is evoked via an image of a forlorn woman with visible scarring taken, of course, in Zoe's would be room, complete with an inset image of Zoe's ultrasound.
Juxtapose this with the image of Justine, a mentally ill woman on a "cocktail of drugs" including methadone, commonly associated with ex-heroin users. The identification of methadone as one of the drugs is a blatant attempt to push a between the lines message. A message that drug addicts are criminals, the ideal offender "can never be rehabilitated or resocialized" (Surette 2007 p. 207) and so they should be treated punitively, as they are a menace to society. Now that the public is suitably outraged, their faith in the legal system shattered, it is time to highlight the apparent discrepancies in the law.
Why is this woman allowed to get off on just a grievous bodily harm charge, should she not have to pay for the murder of that baby?
Well according to NSW juristiction no, and here's why...
Currently the law says a defendant may be charged with grievous bodily harm if a woman loses her unborn baby, even if there is no injury to herself (Crimes Amendment (grievous bodily harm) Bill 2005). Essentially the law recognises the fetus as an extension of the mother, not as a separate life. So as long as the mother survives one can only be charged with grievous bodily harm, not murder or manslaughter. In the aftermath of events such as Brodie's case, the media features headlines such as, "Heartbroken family calls for change to laws on unborn babies" fueling the public outcry for law reform. However the full implications are rarely assessed. One might question the extent of these journalists thought processes prior to these calls for justice, as the complexities of this issue are far deeper than they may initially appear.
The first issue I see in declaring a fetus a life is where exactly to draw the line on who to convict?
This case, as framed by the media seems quite black and white, we sympathize with the ideal victim and her tragic circumstances while berating the ideal offender. It's easy to direct blame and anger at a stranger, but what if Brodie's husband had been driving? Would the calls for law reform be so loud? What if the mother crashed her car while speeding? When her fetus is considered a physical extention of herself she cannot be charged with grievous bodily harm, if the life however is separate, can she be convicted of manslaughter? If their dangerous driving were to kill a living, breathing passenger they could be, so what would be the difference? In such a circumstance the public would surely be more sympathetic, but the law cannot afford this bias.
If someone intentionally hurts the mother, killing her baby, not knowing she was preganant, is this murder or manslaughter? The intent is against the mother not the unborn child, so would the mens rea transfer from mother to child? If the lives are to be considered two seperate ones shouldn't they remain so? So in such case would the charge not be dismissed all together, afterall an act cannot be considered a guilty one unless the mind is guilty also.
Finally, without getting into a debate on the morality of abortion, one might wonder what would be the implications for abortion laws? Currently the laws remain an legal grey area in this country: not technically legal; not strictly outlawed. Considering that an offence is committed when actus reus and mens rea coincide, then a planned abortion would be murder, if the law were to consider a fetus to be a life, that is.
Clearly the legal complexities of this issue are far more intricate than any attention grabbing headline might indicate. This one tragic circumstance should not detract from the overall scope of the law and calls for reform are premature while all surrounding questions remain unanswered.
References
Marsh I & Melville G 2009, Crime, justice and the media, Routledge, New York
Surette R, 2007, The media and criminal justice policy, Thomson/Wadsworth, Belmont
Hatzistergos J 2005, Crimes Amendments Grievous Bodily Harm Bill, 3 March, Parliment of New South Wales, http://www.parliament.nsw.gov.au/Prod/parlment/hansart.nsf/V3Key/LC20050503016
Mccumstie A 2010, 'Heartbroken family callsfor change to laws on unborn babies', Express Advocate, 25 May http://express-advocate-gosford.whereilive.com.au/news/story/heart-broken-family-calls-for-change-to-unborn-baby-laws/
Noone, R et al. 2010, 'Attorney-General calls for full report on Zoe's law', The Daily Telegraph, 25 May http://www.dailytelegraph.com.au/news/sydney-nsw/attorney-general-calls-for-full-report-on-zoes-law/story-e6freuzi-1225870776852
And so the stage was set for the standard media framing of these events in simplistic, dichotomous terms. The defenceless victim versus the drug riddled villain. Meyers has said "the innocent victim is cast in the vulnerable role" (Marsh and Melville 2009, p.107) This can be seen in the Daily Telegraph article which depicts Brodie as a woman nearing the uncomfortable end of her pregnancy, taking a walk to "stretch her restless legs", merely in the wrong place, at the wrong time.Further sympathy is evoked via an image of a forlorn woman with visible scarring taken, of course, in Zoe's would be room, complete with an inset image of Zoe's ultrasound.
Juxtapose this with the image of Justine, a mentally ill woman on a "cocktail of drugs" including methadone, commonly associated with ex-heroin users. The identification of methadone as one of the drugs is a blatant attempt to push a between the lines message. A message that drug addicts are criminals, the ideal offender "can never be rehabilitated or resocialized" (Surette 2007 p. 207) and so they should be treated punitively, as they are a menace to society. Now that the public is suitably outraged, their faith in the legal system shattered, it is time to highlight the apparent discrepancies in the law.
Why is this woman allowed to get off on just a grievous bodily harm charge, should she not have to pay for the murder of that baby?
Well according to NSW juristiction no, and here's why...
Currently the law says a defendant may be charged with grievous bodily harm if a woman loses her unborn baby, even if there is no injury to herself (Crimes Amendment (grievous bodily harm) Bill 2005). Essentially the law recognises the fetus as an extension of the mother, not as a separate life. So as long as the mother survives one can only be charged with grievous bodily harm, not murder or manslaughter. In the aftermath of events such as Brodie's case, the media features headlines such as, "Heartbroken family calls for change to laws on unborn babies" fueling the public outcry for law reform. However the full implications are rarely assessed. One might question the extent of these journalists thought processes prior to these calls for justice, as the complexities of this issue are far deeper than they may initially appear.
The first issue I see in declaring a fetus a life is where exactly to draw the line on who to convict?
This case, as framed by the media seems quite black and white, we sympathize with the ideal victim and her tragic circumstances while berating the ideal offender. It's easy to direct blame and anger at a stranger, but what if Brodie's husband had been driving? Would the calls for law reform be so loud? What if the mother crashed her car while speeding? When her fetus is considered a physical extention of herself she cannot be charged with grievous bodily harm, if the life however is separate, can she be convicted of manslaughter? If their dangerous driving were to kill a living, breathing passenger they could be, so what would be the difference? In such a circumstance the public would surely be more sympathetic, but the law cannot afford this bias.
If someone intentionally hurts the mother, killing her baby, not knowing she was preganant, is this murder or manslaughter? The intent is against the mother not the unborn child, so would the mens rea transfer from mother to child? If the lives are to be considered two seperate ones shouldn't they remain so? So in such case would the charge not be dismissed all together, afterall an act cannot be considered a guilty one unless the mind is guilty also.
Finally, without getting into a debate on the morality of abortion, one might wonder what would be the implications for abortion laws? Currently the laws remain an legal grey area in this country: not technically legal; not strictly outlawed. Considering that an offence is committed when actus reus and mens rea coincide, then a planned abortion would be murder, if the law were to consider a fetus to be a life, that is.
Clearly the legal complexities of this issue are far more intricate than any attention grabbing headline might indicate. This one tragic circumstance should not detract from the overall scope of the law and calls for reform are premature while all surrounding questions remain unanswered.
References
Marsh I & Melville G 2009, Crime, justice and the media, Routledge, New York
Surette R, 2007, The media and criminal justice policy, Thomson/Wadsworth, Belmont
Hatzistergos J 2005, Crimes Amendments Grievous Bodily Harm Bill, 3 March, Parliment of New South Wales, http://www.parliament.nsw.gov.au/Prod/parlment/hansart.nsf/V3Key/LC20050503016
Mccumstie A 2010, 'Heartbroken family callsfor change to laws on unborn babies', Express Advocate, 25 May http://express-advocate-gosford.whereilive.com.au/news/story/heart-broken-family-calls-for-change-to-unborn-baby-laws/
Noone, R et al. 2010, 'Attorney-General calls for full report on Zoe's law', The Daily Telegraph, 25 May http://www.dailytelegraph.com.au/news/sydney-nsw/attorney-general-calls-for-full-report-on-zoes-law/story-e6freuzi-1225870776852
Wednesday, 25 May 2011
NSW State Election: Ineffectual action for actions sake.
It has been about 2 months since the liberal party won control of our state in a landslide victory, a victory largely due to the inaction of the previous labour government. As a result the liberal party managed to win the election without making a great deal of promises, they just sat back while the labour party unravelled. So there is not an awful lot of proposed law and order reform on which to comment. However the standard vote winning lines of getting tough on crime while increasing police numbers and powers were predictably bandied about. One particular issue that has been something of a moral panic in the media of late, is alcohol related violence, this has presented the perfect opportunity for the government to "show their virility by adopting harsh law and order measures". (Hogg & Brown 1998 p.1)
http://www.nsw.liberal.org.au/news/police/ofarrell-government-to-strengthen-police-move-on-powers.html
This press release given by the NSW Liberal party speaks of the additional 'move on powers' police have been granted in dealing with anti social behaviours as well as the new summary offence they intend to pass regarding being 'intoxicated and disorderly'. This brings me to question whether action is always preferential to inaction? This is not a new law, public drunkenness was decriminalised in NSW as per the Intoxicated Persons Act 1979, as a means of reducing deaths in custody, particularly in the indigenous population. It seems to me that this is a tactic of attempting to appease the public; a means of proving adequacy, appearing tough, which has the vast potential to cause more problems than it can possibly cure. The government is perpetuating pre-existing insecurities and prejudices instead of promoting the opinions of experts; the true facts: the abolition of this law saved lives, so how can its reinstatement claim to do the same? I mean, that is its claimed purpose right: public protection? I would suggest, as past experience indicates, differently.This short sighted, vote winning action is a typical characteristic of what Hogg and Brown have labelled the "uncivil politics of law and order" (Hogg & Brown 1998). This is just another way in which political leaders manipulate their people, fuelling public anxiety about a perceived crime problem, (which is commonly assumed to be a greater risk than unemployment, health care and environmental damage) to create the illusion they are acting in a meaningful way towards the greater good. (Cohen 1996)
This legislation perpetuates a cycle of what is known as the Indigenous trifecta where someone is arrested for a public order offence (commonly offensive language or public drunkenness), leading to additional charges for resisting arrest and assaulting an officer. (Australian Human Rights Commission). This proposed legislation is a typical example of how all too often those in power see fit to expand the definition of crime to encompass social harms and self victimisation. (Cohen 1996) I ask what is the advantage of criminalising what can only be described as a health issue? Perhaps the criminal justice system in theory seeks to rehabilitate, but statistics of recidivism rates which indicate contrary cannot be overlooked. Our prison system is overflowing as a result of this overcriminalisation undermining its apparent rehabilitative effect, there simply is not enough resources to reform. This style of action is no more than a means of providing for the ever popular, increasingly punitive response to the 'war on crime'.(Cohen 1996)Whether that crime is actual or perceived matters little. Given this law was initially abolished for a good reason, the over representation of indigenous population in custody and subsequent rate of death in custody, I would argue that this legislation is a poorly considered attempt at appeasing a moral panic that unjustly targets an already over represented minority in the criminal justice system and will have dire consequences.
References
Australian Human Rights Commission 1996, Indigenous Deaths in Custody 1989-1996, http://www.hreoc.gov.au/social_justice/publications/deaths_custody/ch_4.html
Cohen S 1996 'Crime and politics: spot the difference', The British Journal of Sociology, vol. 47, no. 1, March, pp.1-21
Hogg R & Brown D 1998, 'The uncivil politics of law and order' in Rethinking Law and Order, Pluto Press Australia Limited, Annandale
Hogg R & Brown D 1998, 'Law and order commonsense', in Rethinking Law and Order, Pluto Press Australia Limited, Annandale
http://www.nsw.liberal.org.au/news/police/ofarrell-government-to-strengthen-police-move-on-powers.html
This press release given by the NSW Liberal party speaks of the additional 'move on powers' police have been granted in dealing with anti social behaviours as well as the new summary offence they intend to pass regarding being 'intoxicated and disorderly'. This brings me to question whether action is always preferential to inaction? This is not a new law, public drunkenness was decriminalised in NSW as per the Intoxicated Persons Act 1979, as a means of reducing deaths in custody, particularly in the indigenous population. It seems to me that this is a tactic of attempting to appease the public; a means of proving adequacy, appearing tough, which has the vast potential to cause more problems than it can possibly cure. The government is perpetuating pre-existing insecurities and prejudices instead of promoting the opinions of experts; the true facts: the abolition of this law saved lives, so how can its reinstatement claim to do the same? I mean, that is its claimed purpose right: public protection? I would suggest, as past experience indicates, differently.This short sighted, vote winning action is a typical characteristic of what Hogg and Brown have labelled the "uncivil politics of law and order" (Hogg & Brown 1998). This is just another way in which political leaders manipulate their people, fuelling public anxiety about a perceived crime problem, (which is commonly assumed to be a greater risk than unemployment, health care and environmental damage) to create the illusion they are acting in a meaningful way towards the greater good. (Cohen 1996)
This legislation perpetuates a cycle of what is known as the Indigenous trifecta where someone is arrested for a public order offence (commonly offensive language or public drunkenness), leading to additional charges for resisting arrest and assaulting an officer. (Australian Human Rights Commission). This proposed legislation is a typical example of how all too often those in power see fit to expand the definition of crime to encompass social harms and self victimisation. (Cohen 1996) I ask what is the advantage of criminalising what can only be described as a health issue? Perhaps the criminal justice system in theory seeks to rehabilitate, but statistics of recidivism rates which indicate contrary cannot be overlooked. Our prison system is overflowing as a result of this overcriminalisation undermining its apparent rehabilitative effect, there simply is not enough resources to reform. This style of action is no more than a means of providing for the ever popular, increasingly punitive response to the 'war on crime'.(Cohen 1996)Whether that crime is actual or perceived matters little. Given this law was initially abolished for a good reason, the over representation of indigenous population in custody and subsequent rate of death in custody, I would argue that this legislation is a poorly considered attempt at appeasing a moral panic that unjustly targets an already over represented minority in the criminal justice system and will have dire consequences.
References
Australian Human Rights Commission 1996, Indigenous Deaths in Custody 1989-1996, http://www.hreoc.gov.au/social_justice/publications/deaths_custody/ch_4.html
Cohen S 1996 'Crime and politics: spot the difference', The British Journal of Sociology, vol. 47, no. 1, March, pp.1-21
Hogg R & Brown D 1998, 'The uncivil politics of law and order' in Rethinking Law and Order, Pluto Press Australia Limited, Annandale
Hogg R & Brown D 1998, 'Law and order commonsense', in Rethinking Law and Order, Pluto Press Australia Limited, Annandale
Thursday, 3 March 2011
Cautious Consumption
I engage with a range of crime media always proceeding with and eye of caution as very few do I perceive as credible. I tend to have the morning and evening news on as background noise, one ear open waiting for something to catch my eye. I also tend to flick through the weekend newspapers browsing for any attention grabbing headlines. Occasionally a headline will catch me eye on my ninemsn homepage or something posted on a friend's Facebook status. Just the other morning in fact I was watching channel 7's Sunrise where the following story was discussed regarding what our prisoners are being fed (in a Victorian prison):
http://au.tv.yahoo.com/sunrise/video/-/watch/24339344/feast-behind-bars/
This video is a response to a front page article which appeared in the Herald Sun entitled "Crims' Rich Feast" displaying what I would assume to be misleading pictures of the kinds of meals one might expect to find in a first class restaurant. I doubt very much that these were the actual meals consumed by the prisoners. Officials claim prisoners are fed on an average budget of $8/day so, is it not possible on Christmas, for example, they were fed roast turkey? One day a year hardly equates to luxurious living. One of the social commentators who appeared in the segment went on to slam the idea of prison Masterchef or similar programming ideas. I disagree, in my opinion while offenders are in jail as punishment such initiatives may make them aware that they have other talents - employable talents - and a life of crime is not a necessary means of survival.
The reason I am cautious in my consumption of crime media is that I find much of the reporting to be biased focusing on "short term, visceral, emotional news coverage of discrete events" (Surette 2007, p. 10) especially in popular media which sells by attempting evoking an emotional response. Often the offender is given a bad rap, which they may or may not deserve, but I feel everyone deserves an equal voice and furthermore a chance to redeem themselves which is all the more harder if no one is willing to give them a second chance as their objectivity has been muddied by misrepresented statistics and emotional 'evidence'. So if I do come across a crime, case or person I find intriguing I will look further into it myself. I'll read blogs, true crime novels or biographies all of which are prejudiced one way or another but this way I'm not regarding the first opinion I hear as fact.
Surette, R 2007, Media, Crime and Criminal Justice: Images, Realities and Policies, Thomson Wadsworth, Canada
http://au.tv.yahoo.com/sunrise/video/-/watch/24339344/feast-behind-bars/
This video is a response to a front page article which appeared in the Herald Sun entitled "Crims' Rich Feast" displaying what I would assume to be misleading pictures of the kinds of meals one might expect to find in a first class restaurant. I doubt very much that these were the actual meals consumed by the prisoners. Officials claim prisoners are fed on an average budget of $8/day so, is it not possible on Christmas, for example, they were fed roast turkey? One day a year hardly equates to luxurious living. One of the social commentators who appeared in the segment went on to slam the idea of prison Masterchef or similar programming ideas. I disagree, in my opinion while offenders are in jail as punishment such initiatives may make them aware that they have other talents - employable talents - and a life of crime is not a necessary means of survival.
The reason I am cautious in my consumption of crime media is that I find much of the reporting to be biased focusing on "short term, visceral, emotional news coverage of discrete events" (Surette 2007, p. 10) especially in popular media which sells by attempting evoking an emotional response. Often the offender is given a bad rap, which they may or may not deserve, but I feel everyone deserves an equal voice and furthermore a chance to redeem themselves which is all the more harder if no one is willing to give them a second chance as their objectivity has been muddied by misrepresented statistics and emotional 'evidence'. So if I do come across a crime, case or person I find intriguing I will look further into it myself. I'll read blogs, true crime novels or biographies all of which are prejudiced one way or another but this way I'm not regarding the first opinion I hear as fact.
Surette, R 2007, Media, Crime and Criminal Justice: Images, Realities and Policies, Thomson Wadsworth, Canada
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