The Legal Enforcement of Morality - Essay Example

“Utilising relevant case authorities and appropriate primary and secondary sources, construct the most powerful argument you can, either in favour of or against the legal enforcement of morality.” When considering whether there should be enforcement on morality it is necessary to determine the kinds of acts or conduct that might defined as immoral. For some, homosexuality would be regarded as immoral, whilst others might regard certain sexual practices as being immoral, even though there is no legal restraint preventing such practices from being carried out. For others any act that goes against the teaching of the church might be considered to be immoral, such as the taking of ones own life, or the commission of adultery. Many of the moral issues contained within religious teachings have been converted into offences which can be viewed as criminal, such as taking the life of another, and taking something that does not belong to you, with the intention of depriving the true owner of the rights of ownership. Years ago, adultery and suicide were regarded as criminal activities, with those being found guilty of adultery facing the prospect of execution. This was evident during the reign of Henry VIII in which he used the law in relation to adultery to dispose of a wife he no longer desired to be with. Hart (1963) welcomed the introduction of the Suicide Act 1962 stating that this was a legislative ‘landmark’ as it was ‘the first Act of Parliament for at least a century to remove altogether the penalties of the criminal law from a practice both clearly condemned by Christian morality and punishable by law.’ Other reforms welcomed by Hart included the Sexual Offences Act 1967, the Abortion Act 1967 and the Divorce Reform Act 1969. These Acts effectively prevented any legal sanction being taken against an individual for what was merely an offence against Christian morality. One key case where sexual morality was challenged was R v Brown [1993]1. The case centred on charges brought against 16 gay men who were arrested and given prison sentences or fines for being involved with consensual sado masochism practices. Since SM is not illegal in the UK the prosecution were forced to charge the participants with assault even though all of the participants had consented to the things being done to them. When the premise where the activity was being conducted was raided, the police could find no evidence of anyone having sustained a significant injury that required medical attention. Despite this, the police charged them with assault. Their defence was that all of the persons present had consented to the activities. However, Judge Rant determined that a person is unable to consent to being assaulted in law, and therefore the persons inflicting the harm should be charged with assault. Despite several appeals, the convictions have mot been quashed, though the sentences imposed have been reduced, on the grounds that the persons inflicting the harm might not have been aware of the illegality of their actions. Essentially, this case challenged the morality of the participants, and when the prosecution were unable to bring charges for the participation in SM activities, an alternative charge of assault was used. Part of the reason for people wanting to place legal restraints on those engaged in homosexual relationships can be explained by homophobia. Blumenfeld (1992) identified 4 distinct types of homophobia which included personal homophobia, institutional homophobia, interpersonal homophobia and cultural homophobia. Blumenfeld describes personal homophobia as "a personal belief system (a prejudice) that sexual minorities either deserve to be pitied as unfortunate beings who are powerless to control their desires or should be hated; He also concluded that those who have personal homophobia generally regard homosexuals as psychologically disturbed, genetically defective, unfortunate misfits, that their existence contradicts the laws of nature, that they are spiritually immoral, infected pariahs, disgusting - to put it quite simply, that they are generally inferior to heterosexuals. It could be argued that the case of Brown mentioned above was fuelled by personal homophobia and cultural homophobia. According to Blumenfeld cultural homophobia is present when "the social norms or codes of behaviour that, although not expressly written into law or policy, nonetheless work within a society to legitimize oppression." The need to criminalise the acts of the gay men in the Brown case shows clear signs of cultural homophobia, as the only way in which the men could face charges was to treat the incident as an assault. Attempts have been made to criminalise homosexuality as was evidenced in the Woolfenden Report in 1957. This report recommended that the age of majority for homosexuals to engage in sexual intercourse should be increased. It was not until 1967 that the government acted upon this recommendation and introduced the Sexual Offences Act 1967 which stated that sex between homosexuals would be regarded as legal once both parties had attained the age of 21. Centuries ago it had been common practice to burn homosexuals at the stake for indulging in homosexual activities. This was a punishment that was still in force during the reign of Henry VIII. During the 19th century sailors working in the British Navy were hanged for their indulgence in homosexuality. The impetus for the severity of the punishment stemmed from the viewpoint that homosexuals posed a threat to society. Nowadays, society as a whole is more tolerant of such relationships, however, evidence of homophobic bullying is still rife. Members of society, fearful that homosexuality was being promoted in schools called for the government to take action to prevent such promotion. This led to the introduction of s28 into the Local Government Act 1988, the aim of which was to prevent local authorities from providing financial assistance that might promote homosexuality as being normal (The Local Government Act 1986 (amendment) Bill 1987). This did not receive unilateral support as it was felt that the Education (No 2 ) Act 1986 and the code of practice for local authority publicity which was contained within the Local Government Act 1986 (House of Commons Debate, 1987), contained sufficient restraints on the promotion of homosexuality. After the general election in 1987 the local authority code of practice on publicity became official and local authorities were ordered to refrain from any publicity that might undermine moral standards (Department of Education and Skills, Circular 20/88). Following the subsequent release of the Local Government Bill 1988 adverts promoting homosexuality and books such as Jenny lives with Eric and Martin were banned (Bosche, 1983). It had been intended to use this book to teach children about homosexuality but the 1988 Bill forced the authorities from allowing the book to be used in schools (Colvin and Hawksley, 1989). Grimley (2009) examined the issue of homosexuality from the viewpoint of the church. In his research he noted that the Church of England has been instrumental in campaigning for reforms in the way that homosexuality is viewed by society. The Church has also played a leading role in the abolition of the death penalty and campaigns for immigrants’ rights. Despite the doctrine’s expounded by the Church in relation to the issues of divorce and abortion, according to Grimley, the church has played a key role in the reforming of legislation in these areas2. Grimley believes that criminal law has undergone a secularisation process and has effectively severed the link between sin and crime that was evident in the criminal justice system prior to the reforms in the 1960’s. Hart (1958) felt that there was a "point of intersection between law and morals," Hart comments on the utilitarian perspectives voiced by Austin and Bentham that there should be a separation of law as it is and law as it ought to be. Despite this both Bentham and Austin recognised that within the law there would be elements of morality and that the law could not exist without taking into account this issues of morality. Although there still remains a cross over between morality and the law, the removal of criminalisation of certain moral offences should be welcomed. Some of the punishments meted out for moral offences were far too extreme. For example, the execution of someone for adultery only applied to the female population. Males were allowed to have mistresses as well as wives, and therefore were not ostracised by society, nor punished for having intercourse with someone other than their wife. Similarly in relation to abortions, prior to the introduction of the Abortion Act 1967, those terminating a pregnancy could face criminal charges for their actions. The Act had the effect of legitimising abortion so long as the procedure was carried out according to the Act. For those seeking an abortion, this meant a better chance of surviving the procedure, as prior to the Act they might have to avail themselves of the services of someone who was ill equipped to perform the treatment and in many cases was not medically qualified. Another contentious area were morality is brought into question is the abrogation of pornography. Although legislation is in force prohibiting the open display of images that are likely to be regarded as pornographic, there are no restraints on the accessing of such material within the privacy of one’s home. Dworkin (1981) was of the opinion that accessing such materials in private posed no harm to others, and therefore should rightly not attract criminal sanctions. Dworkin pointed out that the public display of such materials ought to attract punishment as it would be able to be viewed by non-consenting adults to whom it might cause offence. Feinberg (1999) was in agreement with Dworkin with regard to the private viewing of pornography. Feinberg voiced the opinion that there could be no justification for criminal prohibitions on the publication of all pornographic material. Feinberg felt that it was possible to restrict the exhibition of pornography to places where involuntary exposure could not occur, such as inside adult only stores and cinemas were entrance to the cinema is controlled by age restrictions on the films (Feinberg, 1983). Feinberg accepted that such prohibitions might cause a minimal amount of inconvenience to those wishing to access such materials, but felt that the involuntary exposure of such materials would cause a greater harm to those exposed to it. These opinions were endorsed by the Williams Committee Report into Obscenity and Film Censorship in England, in which recommendations were made that public decency, should be paramount. Comparison was made between restraints on public conduct, such as sanctions that might be taken against an individual who was seen naked in a public place or who was engaging in sexual intercourse in a public place. Through this analogy it was decided that open displays of material deemed to be pornographic should be subject to criminal sanctions, in the same way that public conduct of the kind described would be criminalised. Wendell (1983) also agreed that sanctions should be in place to stop the involuntary exposure of such material, although her objection is based on the notion of the harm that might be caused to women as a result of the exposure of such material. Wendell was concerned that pornography might cause harm to the self esteem of women if they were involuntarily exposed to this kind of material. With regard to the private consumption of such material, Dworkin made the point that no action should be taken to stop such consumption unless it could be proven that private consumption could cause harm to others. Some campaigners against pornography have argued that there is a causal link between the incidents of rape and the accessing of pornographic material. Unfortunately, despite these assertions, there is very little evidence to substantiate these claims, as the vast majority of persons who access such material very rarely find the need to rape a woman in order to gratify their sexual needs. For many the simple viewing of such material provides the necessary sexual gratification they seek. In essence, it could be argued that those who access such material are actually less likely to rape another, since they are able to suppress their sexual desire through the use of such material. West (2003) was concerned that violent pornography or pornography which involved the degradation of women, might be harmful to women even if such material was only viewed in private. One of the concern’s voiced by Wells was that the women taking part in videos depicting such pornographic material were being subjected to harm and degradation in order to satisfy a specific desire of the male species. Wells was also concerned with the kind of person that might want to view such material, and was worried that such a person might pose a personal danger to others once they were no longer able to satisfy their need to see women degrading in this way in video format. Lederer (1980) objected to pornography from a feminist prospective, arguing that the central role of pornography was the exploitation and oppression of women. This opinion was echoed by other feminist campaigners such as MacKinnon (1995). MacKinnon (1987) makes reference to a book written by Linda Marchiano entitled Ordeal in which the writer describes how she was abducted, drugged, beaten and tortured in order to perform her role in the film ‘Deep Throat’. This book was released following several hearings in Minneapolis into pornography3, in which several women gave evidence of the treatment they had suffered at the hands of those responsible for the production of the pornographic material. Such reports by those who have performed in pornographic films, has led feminists to demand that such material should be totally banned (MacKinnon 1987, Wendell 1983). Greenawalt (1995) argues that all judgments in relation to criminality involve morality as a primary issue. Greenawalt asserts the opinion that law is based on morality, and therefore all crimes committed are morally wrong. However, Greenawalt is concerned that for many people there is a desire to treat all immoral behaviour as criminal. This, he believes, is dangerous, as there is no limit to the amount of acts that might be regarded as immoral. He emphasises how, to some, it might be regarded as immoral for someone to fail to go to the assistance of someone in need. He comments how most people would regard it as a moral duty to try to save the life of a child that was drowning. Following this suggestion, it could be argued that the failure of someone to carry out that moral duty to rescue another could invoke criminal sanctions being brought against that person. This indeed is a dangerous argument, as it could lead to an individual exposing themselves to unnecessary danger in order to fulfill a moral obligation. At present, in the UK, there is no legal obligation on an individual to assist a person in need of treatment unless that person was the cause of the injuries. There is also no legal liability for an omission to act unless the person is directly responsible for the injuries caused to that person4. However, there are a number of relationships within the UK where a positive duty to protect another might exist. The law recognises parents5 or teachers as falling within the category of those that have a duty to protect as they are responsible for the children in their care. Similar liability is placed on members of the medical profession who are caring for patients within the hospital6. There is no legal requirement for doctors and nurses to offer such assistance to someone who is injured in the street unless they were directly responsible for that person’s injuries. Police officers also have a duty to assist but this only applies when they are acting in performance of their duties and does not place liability on them when they are off duty. Attempts have been made to place a liability on individuals to assist others in need as was evidenced in the work of PC John Hurst. PC Hurst attempted to interpret s27 of Halsbury’s Laws of England in such a manner that would impose liability on individuals. He felt that this section implied such a duty as it states “The individual is under certain common-law duties to serve the public. It was his considered opinion that such an interpretation would mean that failure to assist could be classed as a criminal offence. At present the criminal justice system does not agree with PC Hurst’s and no such duty is imposed. From all of the above, it can be concluded that although morality is policed to a certain degree, it would be wrong to treat all immoral acts as criminal. This would effectively result in a reversion back to the law of olden times, where crimes such as adultery, abortion and homosexuality were criminalised. As the death penalty has been revoked, it is unlikely that any penalties for these crimes would be as severe as they used to be, however, what good would it serve to sentence someone to prison for the commission of one of these offences. Morality will always play a part in the determination of criminal activity, however, not every act that can be regarded as immoral is necessarily criminal in nature. The separation of those offences that merely offend against the morality of the church from those that offend against the morality of society as a whole is necessary. If all immoral acts were criminalised the vast majority of the population would be guilty of an offence at some point in their lives. The above study suggests that moderation in the criminalising of immoral activity is necessary, and that the immoral act should be taken in the context of the impact that immoral behaviour might have on others. Unless there is a serious risk that others might be exposed to harm as a result of the immoral act, then there is no need for criminal sanctions to be implemented. Bibliography Allan, T R , A right to Pornography? Available at ojls.oxfordjournals.org/cgi/reprint/3/3/376.pdf Ashworth, A, Principles of Criminal Law, 2003 2nd Ed, Oxford University Press Bentham, A Fragment on Government, in 1 Works 221 Bentham, Principles of Morals and Legislation, in 1 Works 1, 84 (Bowring ed. 1859) (c. XIII). 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(ed.), 1981, Obscenity and Film Censorship: An Abridgement of the Williams Report, New York: Cambridge University Press, esp. ch. 5, 7 and 8. Yates (eds), Crown and mitre : religion and society in northern Europe since the Reformation, Woodbridge 1993, 223–41 Read More