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All crime can be said to fall into two categories; that which is mala in se and that which is mala prohibita (Downes and Rock, 2003).
Crimes which are mala in se are those which involve conduct which is wrong in itself in that the conduct would attract the moral condemnation of the majority within society irrespective of whether or not it was conduct that was prohibited by the state. Crimes which are mala in se are those which the majority of individuals in society avoid not merely for fear of the sanction that would be imposed by the state but also because they are in agreement that it is wrong to engage in such conduct.
Examples of crimes which are mala in se are those such as murder, rape and theft thus reflecting a strong moral content. The other category of crimes are those which are mala prohibita and this involves conduct which society accepts is wrong merely because it is outlawed by the state; there is nothing inherently wrong about, for example, parking on double yellow lines, failing to pay excise duty on goods bought into this country from abroad or exceeding the speed limit in a car. As such, the reason that the majority of people refrain from such conduct is out of fear of the penalty that will be imposed if the contravention of the law is detected.
This categorisation of crimes makes it apparent that the way in which society will respond to crime will be contingent from the outset on the extent to which the conduct in question contravenes accepted moral standards (Hopkins Burke, 2001). There will be a great divergence in the response to conduct which is mala prohibita such as driving without a seat belt and conduct which is mala per se such as incest, indecent exposure and rape (Moore, 1996).
Although these categories are mutually exclusive - conduct cannot simultaneously be wrong in itself and wrong only because it is prohibited - there is scope for conduct to traverse between the two categories and this is largely the product of the way in which society responds to the conduct in question (Downes and Rock, 2003). Drink driving is a good example of conduct that has shifted between the categories. This was generally perceived as a type of conduct that was mala prohibita and it was thus avoided largely for fear of the negative consequences of detection and prosecution.
However, a vigorous programme of education by the government through the 1980s and early 1990s led to a shift of social opinion on this matter and it is now something which has become mala in se. Accordingly, individuals will now refrain from driving whilst over the legal limit not only due to the consequences of being caught but because of the moral condemnation that such conduct attracts from others in society and from the general acceptance that such conduct is wrong and morally blameworthy. This demonstrates that the social response to conduct is not static but is flexible and will change as other social factors change (Moore, 1996).
A further example of this change in the social response to criminal conduct can be seen with reference to homosexuality. This behaviour, even when occurring between consenting adult males, was seen as abhorrent and deviant by the majority of members of society and this was represented within the criminal law by the existence of heavy penalties or imprisonment for those engaging in such activities. However, developments in the understanding of human psychology, especially in matters regarding sexuality, led to a change in stance as this behaviour, whilst still reviled, became regarded as something akin to a disease or mental disorder; hence those who were caught engaging in such conduct were given the option of receiving treatment rather than punishment.
This construction of homosexuality as a medical problem represented a dramatic alteration in the way in which it was viewed socially and something which is analogous to an illness cannot attract blame and condemnation in the same way as deviant conduct that is a matter of choice and free will (Croall, 1996). This slight liberalisation of the way in which homosexuality was viewed in society ultimately led to the recommendation by the Wolfenden Committee that homosexuality should be decriminalised and this, of course, paved the way, over a period of time, for greater social acceptance and tolerance (Downes and Rock, 2003).
This is a further example of the way in which social perceptions of conduct may alter over time and the way in which factors such as the state of current medical knowledge may impact upon the way in which conduct is viewed within society. Other factors, such as changes in the social structure in the early part of the twentieth century influenced in part by the two world wars, and the greater mobility within communities caused by advances in technology can also influence the way in which conduct is viewed within society (Warburton, 2004).
These and other factors led to a change in the way that homosexuality was viewed within society from a criminal matter necessitating harsh punishment to a medical problem that could respond to treatment to a matter of personal autonomy and choice in a sexually tolerant society (Walklate, 2003).
However, social response to crime to not always in favour of greater tolerance and decriminalisation as is suggested by consideration of homosexuality. The way in which society responds to unpopular or harmful conduct can lead to the criminalisation of conduct that was previously lawful. This can be seen in relation to the prohibition of fox-hunting, the laws concerning the use of the internet to groom children for paedophilic encounters and the criminalisation of stalking in the late 1990s.
Although it could be argued that the law is responding to the emergence of new social problems, it is clear on examination that these examples relate to conduct which pre-date their criminalisation. Even in relation to internet grooming, the conduct itself is not new; it is merely that the internet provides a different medium by which the conduct can take place. This demonstrates, then, changed social views of existing behaviour (Downes and Rock, 2003).
Conduct that has a long pedigree becomes problematised by society, usually with the contribution of the media, to the extent that the state responds to social views by outlawing the conduct in question. This demonstrates the power of social responses to particular forms of behaviour, even that which has been in existence for many years (Croall, 1996). It also demonstrates the organic nature of the criminal law as it reacts and responds to changes in social perceptions of conduct.
Of course, the extent to which the law should respond to public views is questionable, particularly in relation to media-induced moral panics that may involve conduct that is already adequately covered by the law or which could be controlled by legal regulation that does not involve criminalisation (Walklate, 2003).
A further way in which society responds to certain crimes concerns not whether or not particular conduct is criminalised but relates instead to the penalty that is imposed upon conviction. One example of this involves the perennial debate over the appropriate penalty for murder, currently life imprisonment. On the one side of the debate are those who favour the reintroduction of capital punishment, a view which tends to gain public support following high-profile cases involving horrific details such as Ian Huntley and Rosemary West.
The other side of the argument addresses the need for greater flexibility in sentencing for murder to reflect the perception that certain deliberate killings are less culpable than others, such as the so-called mercy killings of those suffering terminal illnesses and the killing of abusive partners by woman suffering from battered woman syndrome, and that this lower level of moral blameworthiness ought to be reflected in the sentencing (Walklate, 2003).
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Society has evolved in its reaction to the punishment of certain crimes by an increasing move away from punishment and incapacity by the use of imprisonment to restorative community penalties in which the offender is required to make reparation either to the victim, to the category of people to which the victim belonged or to the local community in general (Whyte, 2004).
The introduction of youth panels for the sentencing of juvenile offenders reflects this move towards community penalties. There is also a wave of public support within society for the use of preventative measures to intervene and protect the community from criminal activity such as the increased support for anti-social behaviour orders. This demonstrates the extent of society's influence on particular crimes, not only in terms of the boundaries of criminalisation but also the way in which particular crimes are punished.
Croall, H., (1998) Crime and Society in Britain, London: Longman Publishing
Downes, D. and Rock, P., (2003) Understanding Deviance: a Guide to the Sociology of Crime and Rule Breaking, Oxford: Oxford University Press
Hopkins Burke., (2001) An Introduction to Criminological Theory, Cullompton: Willan Publishing
Moore, S., (1996) Investigating Crime and Deviance, London: Collins Educational
Walklate, S., (2003) Understanding Criminology: Current Theoretical Debates, Buckingham: Open University Press
Warburton, D., 'A Critical Review of English Law in Respect of Criminalising Blameworthy Behaviour' Journal of Criminal Law (2004) vol. 68, p. 55
Whyte, D., 'Punishing Anti-Social Business' New Law Journal (2004) vol. 154 p.1063