Criminalisation

The question of what behaviour should be prohibited by the criminal law is really controversial, and there are a number of competing views. To criminalise behaviour is a big deal in a liberal society, because in doing so, what we are saying is that not only should people not engage in this behaviour, but also that if they do, they may be punished, by the State, for doing so. There are all kinds of behaviours that we might think are objectionable, but we don’t necessarily want to criminalise them. So, perhaps people could be persuaded to behave in the way that society wants them to behave, without using the criminal law.

Perhaps education can help people to make better choices about their behaviour – so that they themselves choose not to do the bad things which might otherwise end up being criminalised. Perhaps social pressure can encourage people to behave in appropriate ways - if an influential person or group sets a good example, then perhaps the person who might otherwise behave poorly can choose to fit in with the good behaviour, rather than risk being left out by the influential group.

Criminalisation should, in a liberal society, be a last resort. If there is another, less intrusive, less drastic way of encouraging people to ‘do the right thing’ then that should be tried before going down the criminalisation route. So why criminalise? If criminalisation remains on the table, we still need to have a basis for deciding that this behaviour should be criminal and that one should not. Some people think that the criminal law should only be used against behaviour that causes or risks harm to others.

This suggests a relatively minimal role for criminal law, and fits with the general idea that people should be free to get on with their lives as they see fit, provided that they are not interfering with other people’s lives. There are some questions about what kinds of ‘harm’ count – is it just physical harm? What about psychological harm? Emotional harm? Economic harm? And if this approach tolerates criminalising behaviour which risks as well as actually causes harm, how significant must the risk of harm be? And what about behaviour which might not harm anybody else, but might harm the actor themselves – should the criminal law be used to protect people against their own questionable decision-making?

Other approaches suggest that the criminal law can or should be used to criminalise a broader range of conduct than that which is harmful. So, some behaviour might be viewed as offensive or disturbing – albeit perhaps not harmful in the sense meant by the approach we’ve just looked at. To what extent should offensive behaviour be criminalised?

Again, this approach raises some interesting questions: what is the threshold of ‘offensiveness’ – and who decides? After all, some people are more sensitive than others to being offended. Also, what if the person who feels offended could easily avoid the thing which they found offensive – would that be an argument that the offensive conduct should not be criminalised? We’ll think about one further approach to criminalisation at this stage – some people think that the criminal law should prohibit things which are morally wrong – regardless of whether they cause harm in the sense we’ve looked at earlier.

Perhaps their view is that moral wrongs are sufficiently bad in themselves to justify criminalising them; or perhaps they think that some other bad consequences will flow if we don’t criminalise moral wrongs – for example, maybe they are worried that social cohesion will be badly affected. This approach suggests a broader criminal law than one based only on harms. And it raises a lot of questions – for example, just as with offensiveness, who gets to decide what counts as a moral wrong for these purposes? And is it true that social cohesion is threatened by immoral conduct and our failure to criminalise it?

So, there are a range of ways of thinking about the criminalisation issue – and when we are considering it in any context, we can perhaps have these key questions in mind – do we think that this behaviour should be criminalised, and if so, why?