Criminal Law and the Complexities of Violence - Essay Example

Critical Discussion of Why Criminal Law Will Never Be an Adequate Response for Dealing with the Complexities of Gendered, Sexualized and Racialised Violence Criminal Law Criminal law is a branch of the law that describes crimes and offers for their punishment. Within a criminal case, the plaintiff is the state or the sovereign, and the aim of the prosecution is to restore an injury to the public, or to maintain public peace. The main objective of criminal law in a free society is to describe wrongs or crimes that are crucial to the protection of individuals. The other objective of criminal law is to make it possible for individuals to coexist in the society1. Other objectives include to define the procedures of recognizing innocence or guilt and to choose the form of treatment or punishment after the individual is convicted for violating society’s laws2. The main aim of the criminal law is to protect the society so that its members can be reasonably secure as they carry out their constructive activities. Behaviours that are considered to be detrimental to the society’s welfare are made criminal. At all times, a balanced has to be attained between protecting the society and the individual rights. There are three types of harm or dangers that the criminal protects the individual against, and they include protection of the societal morals, protection from harm caused by others, and protection from harm emanating from ourselves. The most common protection that criminal law offers include protection from harm caused by others. The obvious protection offered is found in laws against arson, rape, theft, and homicide. Individuals feel reasonably secure when majority of the people, “most of the time, will not harm us in these or other ways, and that if we are harmed, the offender will be caught and punished.”3 Criminal Law Will Never Be an Adequate Response for Dealing with the Complexities of Gendered, Sexualized and Racialised Violence Criminal Law Will Never Be an Adequate Response for Dealing with the Complexities of Gendered Violence In the majority of the countries in the world, criminal law is the conventional legal strategy utilized in addressing issues of violence against women. The laws are usually contained in general statutes like the penal codes that create the national criminal justice system. The penal codes apply to all individuals and in all areas within the nation. At times, the special statutes tackle certain types of violence such as torture and dowry violence. This form of legislation supplements penal codes, basic law, thus offering for a more focussed regulatory control. However, in most cases, there gaps in special laws and penal codes, and this results in the inadequacies, and inefficiencies in the criminal justice system. It is important to note that the laws are not in place and thus, they are supposed to be reformed, expanded, and revised4. Due to ineffective enforcement, inefficiency in investigation, undue influence, and corruption, the criminal justice systems are said to be against women who are victims of violence. Thus, the procedural and substantive criminal laws and the law enforcement culture, lack gender sensitivity and they reflect an entrenched prejudice against women5. The criminal law alone cannot effectively deal with the problem of domestic violence. Majority of the aspects in domestic violence cannot be described as crime\, and they do not into any classes of assault under the criminal law. For instance, a woman who is under infrequent sexual or physical assaults from her partner or husband may find that her day-to-day life is controlled by measures such as seeking permission on a daily basis to see her friends or family, take up education or employment, or even to go out. These women may generally feel incapable of doing so for fear of reaction. Thus, most of the women will not have the option of using criminal law. It is worth noting that criminal law will not effectively recognize the possible danger or escalation of the abuse when it attempts to challenge this controlling behaviour6. Criminal law does not adequately cover domestic violence, which was once legalized. The existing laws that cover domestic violence no matter how hard they are enforced, they cannot offer a solution to domestic violence. The failure of the law to “redress ongoing, patterned, and non-physical manifestation of the abuser’s effort to dominate his victim means that domestic violence has been criminalized in a manner that negates the essence of battering.”7 As a result, battering does not lie within the confines of criminal law. Under the present definitions of domestic violence by the statutes, pervasive and deep suffering by victims of victims of domestic violence is not redressed\, and there is no condemnation when such suffering is inflicted. Thus, criminal law failure to determine and offer a solution to the harm inflicted is not new and cannot be avoided8. Criminal Law Will Never Be an Adequate Response for Dealing with the Complexities of Sexualised Violence Criminal law cannot offer adequate response to deal with the complexities of sexualised violence. In order to recognize the harm of sexual violence, criminal law cannot only rely on elements such as (hetero) sexual desires, unwanted penetrations, and penises. The law must start focusing on issues such as sexual awareness, the preservation of sexual self-esteem, a sense of sexual self, and the capability to attain sexual benefit or pleasure. It must create concepts and a language that accommodates conditions such as freedom from violation and sexual integrity. A good start is the recognition of sexual integrity that goes beyond integrity of the body. In the context of criminal law, sexual integrity and law usually intersect, and the meddling of sexual integrity will usually entail a bodily element9. Rape and sexual violence are a common thing in war zones. Indictment of rape and sexual violence is inadequate, and the convictions are very rare. Such horrific offences or crimes will go on until they are treated like other types of torture. Since the inception of the Lieber Code, Geneva Conventions, and the Hague Conventions, rape has been illegal in war scenarios. However, there have been few indictments, convictions despite the fact the crime (rape and sexual violence) are widespread, and there have been organized attacks on civilians. The problem lies within the definitions and attitudes of crime. Sexual assault is not defined as its own form of crime during wars. Sexual assault comes under usual headings such inhumane treatment and outrages on the individual’s dignity. This has left many questions such as if rape can be considered as a crime against humanity or a war crime10. Rape and other forms of sexual violence are not out rightly prohibited; women are just protected. Little is being said about the consequences the perpetrators will face. The definition of these crimes is another big problem that makes criminal laws inadequate in responding to complexities of sexualised violence. Rape is defined as an attack on the woman’s honour. However, the women do not view rape as an attack on their honour. They see it as a form of torture and violence11. Criminal Law Will Never Be an Adequate Response for Dealing with the Complexities of Racialised Violence Racial violence can take many forms such as graffiti, harassment, arson, verbal use, physical assault, murder, and vandalism. The problem of racial violence remains to be persistent in the majority of the member states in the European Union. Racial violence is distinct from other forms of violence because of what motivates the behaviour. The impact of racial violence is significant to the families, victims, and inter-community relations12. Particular wording of terminology and questions must be noted in the context of the European Union Member States. For instance, racist crime has varied connotations in various members’ states and definitions are based on the different legal frameworks put in place. In some nations, racial discrimination is regarded as an offence under the criminal law and in other nations, it is a civil issue13. Just like the other types of criminal offences mentioned above, there is no clear definition of what racial violence is, and the meanings differ from one place to another. Thus, the criminal laws will never adequately respond to complexities of racial violence. Racial vilification is an all-encompassing term that more than simply entails judging other people as inferior due to their perceived ethnicity or race, or discrimination against them on that basis. Racial vilification is usually used to refer to abusive and offensive acts or comments that demonstrate, incite, or express contempt or hatred for persons on the basis of the ethnicity or race. Hate speech, hate propaganda and racial hatred are other term s used to define such behaviour14. Currently, for instance, in Tasmania, there is no provision for criminal racial vilification. This indicates that racial vilification acts are not regarded as specific criminal offences. Any act of violence towards property or an individual fall within the present criminal laws. However, racist motivation does not fall into any specific criminal offence in Tasmania15. In this case, it is difficult for the criminal law to adequately respond to complexities of racialised violence. References Craig, Elaine. Troubling Sex: Towards A Legal Theory Of Sexual Integrity. Vancouver, BC: UBC Press, 2011. European Monitoring Centre on Racism and Xenophobia. “Racist Violence in 15 EU Member States: A Comparative Overview of Findings from the RAXEN National Focal Points Reports 2001-2004.” Vienna, 2005. Goonesekere, Savitri. Violence, Law and Women’s Rights in South Asia. London, UK: Sage Publications, 2004. Hanmer, Jalna, and Catherine Itzin. Home Truths about Domestic Violence: Feminist Influences On Policy and Practice: A Reader. London, UK: Routledge, 2000. Jackson, Olivia. “The rape of a nation: inadequacies in redress for sexual violence in war zones.” Politics on Toast, July 31, 2011. http://politicsontoast.com/2011/07/31/the-rape-of-a-nation-inadequacies-in-redress-for-sexual-violence-in-war-zones582/. Oakley, Robin. “Policing Racist Crime and Violence.” Vienna, 2005. Pollock, Joycelyn M. Criminal Law. London, UK: Elsevier, 2009. Stark, Eva, and Eva Schlesinger Buzawa. Violence against Women in Families and Relationships: Victimization and the Community Response. Santa Barbara, CA: ABC-CLIO, 2009. Tasmania Law Reform Institute. “Racial Vilification and Racially Motivated Offences.” 2011). Read More