Social Construction of Crime - Essay Example

?Social Construction of Crime Crime is deemed as an act that breaks the provisions of the set law and its social construction varies from society to society as well as the time and the law (Sanders & Young 2010, p. 1). The crime is therefore defined by the society’s own rules, beliefs and norms that are in play at any given time in the history of the society. A proper analysis of crime reveals that it is an integral part of any society that can be constructed politically, economically or culturally in the way it affects the society. Therefore, behaviors become crimes through a process of social construction in that the same behavior may be considered criminal in one society while it may be an acceptable act at a different society at the same or different time (Morgan, Reiner & Maguire 2012, p.160). This means that the legal status of a behavior whether defined as a crime or not is in not in the content of the behavior itself, but lies in the social response to the behavior in question and the changes in the legal status of the behavior can be brought about by the transitions in the society. It should also be noted that the social response to crime including numerous explanations for crime are based not only on the nature of the act itself but also on the moral and social standing of the offender as related to that of the victim. Further, it is noted that in the absence of any ontological reality of crime, there are tests that are used in the construction of crime, one of which is the test of intention to commit the crime known as Mens rea (Hillyard 2005a, p.9). There is an area of criminal activity that occurs in the current society that involve crimes and unfair practices that are committed in the society and are usually committed by people who see themselves as law abiding and who would readily reject the label of being criminals (Karstedt & Farrall 2007, p.7). They are known as the ‘law-abiding majority’ but they fail to understand that most people do not choose to abide by the law but are forced to abide by its provisions or are selective in their compliance with the law. It is important to note from the onset that though the behavior under discussion may be unscrupulous or unfair, it appears normal in the eyes of most offenders who try to justify it. The offences by the ‘law abiding majority’ are that the middle class commit the offences or ill practices but are also eager to blame the perpetrators when they find out that they are the victims of such behavior. Research has shown that the ‘law-abiding majority’ may bend more rules than what is in the public domain (Karstedt and Farrall 2006, p.1039). The crimes by the law abiding citizens though may be crimes of everyday life, they may not be regarded as antisocial per se but could be termed as anti-civil as they show the absence of civility among the citizens who should show the opposite character (Green, Grove and Martin 2005, p. 233). Not all behaviors are usually considered as illegal in general but some are deemed morally dubious by both victims and the offenders and are not unusual or outstanding in nature but are mundane. Whether s.5 Public Order Act 1986 offences is more likely to be prosecuted than Health and Safety offences committed in the workplace Section 5 of the United Kingdom the Public Order Act 1986 was expounded in the recent case of Harvey v DPP [2011] All ER (D) 143 which gave the threshold of the offences under this provision. The case gave what should be used in the determination of the fact whether words used are abusive as interpreted against section 5 of the act and when evidence of their impact on an individual can be required by the court (Brown & Ellis 1994, pp.1-4). Under section 5 of the Public Order Act 1986, an offence can only be deemed so if it possesses two elements and include the fact that a person must have made use of intimidating, insulting or offensive words or behavior. Further, the behavior must have been disorderly or have displayed any writing, sign or a visible representation that will be deemed to be hostile, rude or abusive. It also provides that the words or behavior, writing or sign or any other visible representation that must have been made within the sight or hearing distance of a person that is likely to cause alarm, harassment or distress. This section is unique in the sense that it requires no proof of intention but that the act took place within a hearing or sight distance from the person the intended act occurred or that it caused him alarm, distress or harassment. In the case of Harvey v DP, the appellant was arrested for swearing at a police officer who had arrested him for being suspected that he was in possession of cannabis and charged with a section 5 offence. At the trial no evidence was adduced that the officers had been alarmed, harassed or distressed by the appellant or his words, but the defendant at the lower court was nonetheless convicted on the basis that he had used words in a public area where there were people who heard him use the undesired words or behavior. The court while relying on a previous decision in Southard v DPP [2006] EWHC3449 (Admin) to interpret whether the word “fuck” used by Harvey was threatening, abusive or insulting, the court held that the context and the circumstances showed that they were abusive. However, in quashing the conviction, the court held that there must be proof that the words were spoken within the hearing of a person likely to feel harasses, alarmed or distressed by the said words. The provisions of Section 5 of the Public Order Act 1986 show that it is difficult to prosecute such cases due to the considerations of the proof and the requirement of the presence of public or persons in the vicinity of the offences. The context the words are used makes it difficult to prosecute the offence in that there must be a determination on the manner the alleged abusive words are used or even the culture of the person using them. The requirement that evidence must be adduced that those who heard the words are likely to be distressed, alarmed, distressed must be proved makes it difficult in prosecuting the offences under this section. The question as to whether a word is threatening, abusive or insulting depends on the circumstances in which they are used and how they have been used and the courts have stressed that they are given their ordinary meaning as held in Brutus v Cozens [1973]AC854, HL. Therefore, the context plays an important role in concluding whether some words are abusive, threatening, insulting or harassing. The United Kingdom Health and Safety laws provide that organizations must assess risks that may occur to employees or any other person that derives benefits from their activities and they must therefore put in place measures that protect them in the place of work. The organizations must have written health and safety policy if they employ five or more people and ensure that they have competent health and safety advice as well as continuously consult employees of the risks that are abound. Failure to comply with the requirements of the law on health and safety can have serious consequences that may include fines, imprisonments or disqualifications. Under the Health and Safety at Work etc Act 1974, if a health and safety offence is committed with the connivance or consent that can be attributed to negligence on the part of the officials of an organization, prosecution may be preferred under the provisions of Section 37 (Tombs 2005, p.4). This means that the directors of a n organization cannot avoid being prosecuted for an offence of neglect under the provisions of section 37 if they are ignorant of the circumstances that require that they address health and safety breaches in their organizations. The prosecution often results in fines or the alternative of imprisonment if the offences are proven by the courts of law. Under the common law, the directors of an organization will be prosecuted for gross negligence man slaughter which is also a health and safety offence. From the foregoing, it can be said that an offence will have been committed where failings by an organization at the work place are a substantial element that leads to a gross breach of the duty of care owed to the employees or members of the public that comprises their health or safety. It is therefore easier to prosecute offences under the health and safety laws as what is required is only to prove the negligence of those at the work place. There is now the new Health and Safety (Offences) Act 2008 (new Act) which has repealed the previous Act of 1974 with new provisions that empowers the courts to impose sentences of up to two years for health and safety offences contrary to previously when custodial sentences was only available for the most serious offences. It also makes it possible to try certain offences both at the magistrate’s courts of law and the Crown Court which have the capability of imposing higher fines or custodial sentences. It also raises the maximum fines that can be imposed by the courts for offences that breach the safety and health laws and it can therefore be authoritatively said that it is easier to prosecute offences that go contrary to the safety and health laws in the United Kingdom. Due Process and Crime Control Due Process Due process concerns itself with the formal, adjudicative adversary fact-finding process in which the case that has been brought against the accused is tested or tried before a public and impartial court of law (Lippman 2011, p.38). The assumptions in due process are that it may at times depend on the political mood or the level of tolerance and that every person is presumed innocent until proven guilty and it thus guarantees that no person can be deprived of his life, liberty or property without a fair and due process that adequately addresses the tenets of justice. In criminal proceedings, due process requires that a person is guaranteed the fundamental aspects of a fair trial that may include the right to adequate notice of the trial, right to counsel, right to refuse testimony that may be self-incriminating and the right to prove the crime beyond reasonable doubt amongst other guarantees. Criminal Control However, crime control is based on the concept that repression of criminal conduct is the key function of the criminal justice agencies in order to maintain order and citizens live in relative comfort and do not live in fear (Acker and Brody 1999, p.19). This requires an acceptance that some mistakes can be made and those who are innocent are likely to be punished just for the greater good and well-being of the society. In the United Kingdom where the law enforcement agencies find it difficult to enforce the law and witnesses are intimidated and the legal system seems impervious to crime, crime control seems the more likely mode of criminal justice system as opposed to the due process mode. The presumptions of the crime control in a criminal justice system is that it is practiced on behalf of the majority who are the law abiding citizens and that only a few cases where the innocent are convicted, but it is justified for the greater good of the majority. There is a presumption of guilt that is proven through evidential means and the recognition that the victims should have more rights than the accused and the fact that sentences must be long to protect the public. The key difference between the due process and the crime control model is that while due process guarantees the rights and respects of every person, crime control focuses on the conviction of the guilty. Due process has a series of obstacles and hurdles in securing justice while crime control prioritizes confession of the crime while police powers are controlled and not controlled respectively. Due process has got a complicate criminal process that tolerates the acquittal of the guilty while the crime control crime justice system focuses on a speedy conviction that tolerates the conviction of the innocent. It is important to note that the United Kingdom criminal justice system has been characterized by a migration to the due process from the crime control process due to the changes in the powers of the police. Reference List Acker, J. R., & Brody, D. C. (1999). Criminal procedure: a contemporary perspective. Gaithersburg, Md: Aspen Publishers. Brown, D., & Ellis, T. (1994). Policing Low-Level Disorder: Police Use of Section 5 of the Public Order Act 1986. Hillyard, P. (2005). Criminal obsessions why harm matters more than crime. London, Crime and Society Foundation. Viewed Nov. 6th, 2013 from http://catalog.hathitrust.org/api/volumes/oclc/62382513.html. Tombs S, (2005)‘Workplace Harm and the Illusions of Law’ in Criminal Obsessions: Why harm matters more than crime Vol. 1 Karstedt, S. and Farrall, S. (2006), ‘The moral economy of everyday crime: markets, consumers and citizens’ British Journal of Criminology, 46(6), pp.1011-1036. Karstedt, S., & Farrall, S. (2007). Law-abiding majority?: the everyday crimes of the middle classes. London, Centre for Crime and Justice Studies, King's College London. Green, D. G., Grove, E., & Martin, N. A. (2005). Crime and civil society: can we become a more law-abiding people? London, Civitas. Lippman, M. R. (2011). Criminal procedure. Los Angeles: Sage. Sanders, A., & Young, R. (1994). Criminal justice. London: Butterworths. Morgan, R., Reiner, R., & Maguire, M. (2012). The Oxford handbook of criminology. Oxford: Oxford University Press. Read More