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Crime is not a homogenous category of
conduct. It is a label used to describe a diverse range of
conduct that occurs within society that has one feature in
common; it is conduct that is prohibited by the state and
this prohibition is enforced with the threat of sanction.
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).
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