labrys, études féministes/ estudos feministas
julho/ 2017- junho 2018 /juillet 2017-juin 2018

The Invisible Man of Criminology and Criminal Law: 1987 -2017

Ngaire Naffine
(Bonython Professor of Law, University of Adelaide)

Abstract:

This article offers a brief survey the state of crime theory, criminology and criminal law from 1987 to 2017, from a feminist point of view. It observes a persistent failure to attend to the main characteristic of crime: that it is profoundly male dominated. It finds a tendency to offer gender-neutral theories of crime, which are derived from the study of men, not women. And it observes a failure of criminal law analysts to take a critical stance towards criminal laws which favour men and license sexual violence against women: notably the immunity of husbands from rape prosecution which was sustained until very late in the twentieth century.

Key-words: feminist criminology, criminal law, rape law, marital rape immunity, masculinity

In 1987, I introduced a feminist account of criminology and criminologists with this statement:

‘Perhaps the least contentious proposition one can advance within the discipline of criminology is that women are more law-abiding than men. Official crime statistics and the unofficial data…both reveal this to be the case. In the United States…the United Kingdom…and in Australia…the researches of criminologists consistently reveal the majority of the criminal population in almost every category of offending to be male.’ (Naffine, 1987, 1)

             In this early inquiry into the major theories of crime, from a feminist perspective, I found a discipline which was largely uninterested in the dramatic difference between the offending of men and women, and which was also unable to apply objective social scientific methods to explain it, whenever they tried to, which was rare. This was the oddest feature of criminology. Criminologists were remarkably incurious about the great disparity between the nature and scale of male and female offending, even though it was the most salient fact about crime, which cried out for investigation. The maleness of offending was a major blind spot.

There was another odd feature of the criminology of the nineteen seventies and eighties, and the nature of the questions posed by the leading criminologists. Rather than ask what might have been the first question of criminology: ‘what was it about men that made them so much more criminal than women?, indeed ‘what was the problem of men?, the discipline of criminology tended to develop theories or explanations of crime which simply took men to be the human norm (as if studying men could tell you about human behaviour in general). In other words, men were treated as the standard case of the human being, which meant that the discipline could focus its attention on men but also, paradoxically, ignore the male-dominated nature of crime.

Men were the primary objects of inquiry of the discipline, but as human beings, not as men. Women were therefore treated implicitly as a special case of human being, who could be set aside, and ignored, when it came to the general study of crime. Men were studied in considerable detail by criminologists; male lives were used to explain crime, male theories of offending were developed, such as social strains caused by economic deprivation or criminal associations (learning theory). And then these explanations were presented as general theories of crime, as if they applied just as well to women, but with almost no evidence to support that assumption.

This was bad science because the evidence was mainly derived from the study of only one sex. And indeed these theories tended to work poorly for women on the unusual occasions when they were applied. For example the theory that economic strains generated crime, first developed by Robert Merton (1949) and Albert Cohen (1955) was a poor predicator of offending for girls and women. Women too underwent economic strain, often more than men, but it did not turn them to crime. Economically disadvantaged women did not offend in the same way or to the same degree as economically disadvantaged men. It took more than this to make a woman offend. So the theory did not work in the same way for the two sexes.

Moreover criminologists were remarkably uninterested in the greater law abiding nature of girls and women and what made them better citizens, even though this was a potentially interesting and important question to pose. If anything, and perversely, female non-offending was seen as not only uninteresting but implicitly as a sign of female inferiority: almost as a sign of underachievement. And conversely there was a tendency to romanticise young male offenders as daring and risk-taking. For example, Albert Cohen (1949, 139) described male delinquents in terms of their ‘daring’ and ‘mastery’ and even in terms of their ‘achievement’. Howard Becker (1963) characterised the ‘deviant’ as social critic. This sympathetic attitude to, and concentration on, the young male offender was sustained by critical criminologists (Taylor, Walton and Young, 1973).

The focus of criminology was therefore on men, indicating a highly gendered view of the world, but the discipline was not presented as a body of principles delimited by sex: it was not seen as a discipline created by men and about men. The activities of men set the standard from which all human behaviour was judged without awareness, by the expert criminologists, of this fundamental bias. Criminologists seemed to be missing the most important point about crime.
I saw my work as part of ‘the feminist endeavour’ to change this intellectual outlook: ‘to cast doubt on a good deal of orthodox theory about human nature and human behaviour which has been developed with such a slight or distorted knowledge of the female’. (Naffine, 1987, 6) Carol Smart had already expressed similar intentions and concerns in her path-breaking work (Smart,1976).

Ten years later in Feminism and Criminology (Naffine, 1997) I surveyed the field again and noted that leading figures in American and British criminology had generally not taken account of these comments about the gender bias within their discipline. (Cohn and Farrington, 1991.) Nor had they responded to the new and growing feminist criminology. I observed also that the costs to criminology of its neglect of feminist scholarship was perhaps more severe than it would be for any other discipline studying and explaining human behaviour .

Again, the reason was that ‘the most consistent and prominent fact about crime is the sex of the offender. As a rule, crime is something that men do, not women, so the denial of the gender question – and the dismissal of feminists who wish to tease it out – seems particularly perverse.’ (Naffine, 1997, 6) This was true for crime at large, from major corporate fraud to petty property offending; from major to minor crimes against the person. My conclusion was that the relationship between crime and masculinity was so strong, that perversely it was all but invisible. It was simply treated as a natural feature of the world, as a given, but as intellectually and morally uninteresting. There was a manifest failure on the part of mainstream criminology to engage in reflective, self-critical scholarship about the sex of its subjects.

For the past two decades I have been a criminal law scholar and teacher and what I can now report with confidence is that despite decades of social change, men still dominate the criminal statistics and yet men are still missing as central figures in the analysis of criminal law and crime. In this respect, sadly little has changed.

Men have been, and remain, the central (but unexamined) characters of criminal law: the criminal legal scholars, the judges and lawmakers, the regulators and the regulated. They are still the majority of the police force and the large majority of violent criminals and prisoners. Their social and financial cost to the community, as both the enforcers of criminal law and the enforced, is enormous. However men, as men, as a distinctive sex, still receive remarkably little attention from criminal law scholars who continue to theorise their central character, the criminal defendant, in a manner which omits his gender. Typically the main characters of criminal law are conceived in a highly abstracted manner, as ‘persons’, as in the offences against the persons, rather than as men and women.
This is a thesis I am developing in a new book entitled Criminal Law and the Man Problem (forthcoming).

This is a study of the discipline of criminal law and the generations of legal men who have organised their field of inquiry and set its priorities. I claim that the leading scholars of criminal law and the lawmakers have understood their discipline in a manner which has been highly coloured by their interests, their position, their power – but that this has generally not been seen or recognised by them – and still it is not. That, indeed, their cast of criminal law has been from a particular and powerful point of view which has tended to preclude an awareness of other dissenting points of view, especially those of women. That it has been presented as the one and true and reasonable and universal viewpoint (because competing viewpoints have not only been silenced but rendered meaningless) but in truth it has been highly particular; highly coloured.

The further argument of this book is that criminal law and justice have been male dominated and male interested but that the law makers and legal analysts have remained largely unaware of their masculine focus, their masculine bias and values. Men are invisible subjects of criminal law, even to the experts of the discipline.Though men’s interests, concerns and lives have shaped this criminal legal world (Naffine, 2016), and continue to do so, this is not evident from a reading of most criminal legal texts and scholarly works. Men have been abstracted out of the literature by the continuing use of gender-neutral concepts in criminal law to refer to their subjects - such as the ‘person’, the ‘individual’ and ‘citizen’. This terminology continues the practice of keeping men under cover and therefore not the specific subjects of open consideration. Criminal legal theory still largely occurs without reference to men and women, despite the maleness of crime. And yet the male dominance of crime has persisted over the last three decades.

An important and unfortunate consequence of this invisibility of men is that male interests in certain types of laws, laws which positively favour their sex, have been hard to identify and poorly considered. For example, men of legal influence have consistently stated their commitment to the personal security and bodily integrity of all, but they have also consistently displayed a strong ambivalence to sexual violence directed at women and so protected the interests of men. This ambivalence about violence is most clearly displayed in the criminal law of rape and its major exemption: the husband’s immunity from rape prosecution.

Criminal lawyers have therefore held directly incompatible ideas. On the one hand our right not to be touched, without our consent, has been regarded as the foundation stone of criminal law as a principled institution and discipline, committed to ensuring civility in our public and private lives (Feinberg, 1984; Duff, 2007;Tadros, 2005). The most basic function of criminal law and justice, it has been repeatedly said, is to protect our bodily integrity, a principle most clearly stated by John Stuart Mill in On Liberty (1991). On the other hand, husbands have been given full license to rape their wives, (via the marital immunity from rape prosecution) with little dissent from criminal law scholars and sometimes with their positive approval.

The husband’s immunity from rape prosecution was first enunciated by Lord Hale, in 1736. In his History of the Pleas of the Crown, Hale provided a brief statement of the sexual rights of the husband to the wife, thereby ousting the law of rape. Hale said that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.’ (Hale, 1971, 629) This is an immunity which has been sustained and defended by men of legal influence right up to the last decade of the twentieth century, notably by the distinguished English criminal law scholar, Glanville Williams (1947, 1992).

A central moral tension within criminal law is therefore that men of legal influence have declared one set of values and yet subscribed to another. In the last few decades of the twentieth century, the men of law abolished the criminal law that had given them such magnified rights to the bodies of women, but with little in the way of critical analysis of their discipline.

In 1989, the Scottish High Court of Judiciary relied on the idea of female (not male) modernisation when it recognised the right of the married woman to complain of rape (S v HM Advocate 1989 SLT 469 at 473). It was said that the law was bound to change because married women had emerged out of status. ‘By the second half of the 20th century … the status of women, and the status of a married woman, in our law have changed quite dramatically.’ The House of Lords employed similar reasoning when it abolished the immunity in England. They said that ‘the status of women, and particularly of married women, has changed out of all recognition in various ways which are very familiar and upon which it is unnecessary to go into detail.’ (RvR [1992] 1 AC 599 at 616). Again, men were largely missing from the analysis.

The Australian High Court said much the same and even entertained doubt about the very existence of the immunity:

"‘It is unnecessary for the Court to do more than to say that, if it was ever the common law that by marriage a wife gave irrevocable consent to sexual intercourse by her husband, it is no longer the common law." (RvL [1991] HCA 48; 174 CLR 379 (par 177))

Then in 2012 the Australian High Court, in PGA most remarkably, simply denied that the immunity had been part of the common law. This time the sex rights of husbands to wives was virtually written out of history. (Sletvold, 2012; Naffine and Neoh, 2013)

This suite of cases abolishing the husband’s immunity did not lead to any major soul searching by criminal law scholars. The immunity was dispensed with few words and with little explanation; it was dismissed as an anachronism, as antique law. It was said that the immunity failed to recognise the modernisation of the roles of women. There was no major reconsideration of the principles underlying their discipline and little was said about men: why they once could rape their wife with impunity; and the significance for men of their new duties not to rape. Certainly there was no suggestion of an education programme for men to apprise them of their new legal responsibilities.

None of these courts acknowledged the substantial renunciation of male power and the implications for their own sex, for their very masculinity, of such a change to the law of rape: from enhanced and then diminished rights. Most of the talk was of the modernisation of women and their changing status not about their own sex. There was very little on the implications for the discipline of criminal law of such a dramatic change of male right. What did it mean for men? What did it mean for the discipline?

Criminal law, like criminology, therefore is still in a state of near blindness to the general problem of men as a criminal class. In a new book on the history of criminal responsibility Nicola Lacey (2016) has urged a study of the gender of the subject of criminal law and in Criminal Law and the Man Problem I endeavour to supply one.

References

Becker, Howard, 1963. Outsiders: Studies in the Sociology of Deviance ,London: Free Press

Cohen, Albert 1955. Delinquent Boys ,NY: Free Press

Cohn, Ellen and Farrington, David. 1991. ‘Who are the most influential Criminologist in the English Speaking World 19 In J Of the Sociology of Law 427.

Duff, RA, 2007. Answering for Crime: Responsibility and Liability in the Criminal Law , Oxford: Hart

Feinberg, Joel 1984, The Moral Limits of Criminal Law: Volume 1 Harm to Others (OUP)

Hale, Sir Matthew 1971. Historia Placitorum Coronae vol 1, London : Professional Books, first published 1736).

Lacey, Nicola. 2016. In Search of Criminal Responsibility: Ideas, Interests and Institutions (OUP).

Merton, Robert 1949. Social Theory and Social Structure ,New York ; Free press

Mill, John Stuart 1991. On Liberty and Other Essays, John Gray ed, OUP, first published 1859).

Naffine, Ngaire 1987. Female Crime: The Feminist Construction of Women in Criminology ,Sydney: Allen and Unwin

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Naffine, Ngaire, 2016. ‘Farmer, Lacey and the New Social Scholarship’ 38, 4 Sydney Law Review 505.

Naffine, Ngaire, forthcoming Criminal Law and the Man Problem ,Oxford: Hart/Bloomsbury

Naffine, Ngaire and Neoh, Joshua, 2013. ‘Fictions and Myths in PGA v The Queen’ 9 Australian Journal of Legal Philosophy 38.

Sletvold, Richard, 2012. ‘Do Laws Just Disappear?’ 33 Adelaide Law Review 573

Smart, Carol 1976. Women, Crime and Criminology: A Feminist Critique, London: Routledge and Kegan Paul

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Taylor, Ian, Walton, P and Young, J, 1973. The New Criminology: For a Social Theory of Deviance , London: Routledge and Kegan Paul

Williams, Glanville, 1947. ‘The Legal Unity of Husband and Wife’ Jan MLR 16

Williams, Glanville, 1991. ‘Rape is Rape’ 142 New Law Journal 11.

labrys, études féministes/ estudos feministas
julho/ 2017- junho 2018 /juillet 2017-juin 2018