AIC_1990

ANNALES INTERNATIONALES DE CRIMINOLOGIE

INTERNATIONAL ANNALS OF CRIMINOLOGY

ANALES INTERNACIONALES DE CRIMINOLOGIA

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ANNALES INTERNATIONALES

DE CRIMINOLOGIE

organe officiel de la Société Internationale de Criminologie

Président : Albert J.R. REISS Jr. (U.S.A.)

Secrétaire général : Georges PICCA (France)

COMITÉ DE RÉDACTION DES ANNALES

Président : Hans-Jürgen KERNER (R.F.A.)

Président de la Commission Scientifique

Secrétaire : Pierre-Henri BOLLE (Suisse)

Secrétaire de la Commission Scientifique

Rédacteur en chef : Georges KELLENS (Belgique)

Rédacteurs associés

Lolita ANIYAR DE CASTRO (Amérique Latine),

Setsuo MIYAZAWA (Asie), Louise SHELLEY (Amérique du Nord).

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Table des matières

Table of contents

Indice

Avant-propos

#0 JD 0 d0 005005 uo 0 UV O D OI 00595050 10 00 O

Foreword

ù u/ 0005080 0800 00 Cu CLoa D 00000 S 10.050 0 Oro u D'Ux0

=

Presentacién

D u2009000065 C0 Oo0 00 00000 09000900 0150.0000 00 UL

In memoriam Marc Ancel,

P.H. Bolle

D°040 0104010040 D0 0 099000000005 1000 00 06000 à

Alphonse Boni,

J. Pinatel

00 01000 SS 00400900 00 090 OD U UE C OÉC IOS C00

11

1

Une perspective déontologique, pour la protection des droits de

l’homme, dans le domaine de la médecine légale, psychiatrique et

criminologique,

50 0Y0 740 à 0400000 000 D0 00000 SV 00 01070 7

15

G. Canepa

Perplexing questions in the understanding and control of

violent behavior,

23

ASTÉReISSEE e TT

Preventing violence : The work of the National Committee on

Violence,

D. Chappell et H. Strang

00100 1u40 dn 0000 O UU 0060004090

41

Juvenile delinquency and juvenile justice in Japan,

C0 9>100500 C4W090 080 011 07D 00 0U

55

K. Miyazawa, S. Euller Cook

Aidos and depravity : À comparative study of responses to pornography

in Greece and in England and Wales,

à 'ora-1 10 904040 105000 C0c osn 00 029 J2N DDU O

67

E. Trivizas, Chr. Davies

Intérêt de l’étude des potentiels lents cérébraux dans l’expertise

psychiatrique en matière criminelle,

d EU OJ d 0 00000 0000000

M. Timsit, M. Timsit-Berthier

95

Cartesian Penology,

J.-P. Brodeur

Tas* OOn OW0 TO OO On 0400 2040800000 00000000

107

Criminal careers in correction,

U.V. Bondeson

JT OÉ ON d VUn C 00D 00 OO S C URO 0

135

Human rights in the enforcement of sanctions involving deprivation

of liberty,

G. Kaiser

Sh CG SO A OO O. CC VÉOMOT 00 D0 EU VV

151

10. L’enseignement de la criminologie à l’Université: observations

générales et perspectives internationales,

G. Picca

600909000000 0 00000 99 009000450900 6000000

175

11. Conclusiones generales del XLI Curso Internacional de Criminologfa,

R. Ottenhof

000200000900 0900DC 900009000000 000000

183

RE 0

Avant-propos

Plusieurs articles de ce numéro reflètent la composition nouvelle que les mem-

bres de la Société internationale de criminologie ont donnée, en 1990, à leur conseil

de direction: le nouveau président de la Société, le professeur Al Reiss, deux de ses

nouveaux vice-présidents, les professeurs Ulla Bondeson et Koichi Miyazawa, et

deux nouveaux membres du conseil de direction, les professeurs Duncan Chappell

et Reynald Ottenhof, publient ici d’importantes contributions. L’un des deux centres

internationaux de la Société est également représenté par une étude du directeur du

Centre international de criminologie comparée de Montréal, le professeur Jean-Paul

Brodeur. La publication d’actes des cours internationaux de criminologie de San

Sebastian et de Miskolc répond, par ailleurs, à la volonté de consacrer, au moins

partiellement, les Annales internationales de criminologie aux réunions internatio-

nales organisées sous l’égide de la Société.

Georges KELLENS

Foreword

Several articles in this issue reflect the new composition (from 1990) of the

board of directors of the International Society of Criminology. We are glad to

publish important contributions from the Society’s new President (Professor Al

Reiss), two of its new Vice Presidents (Professors Ulla Bondeson and Koichi Miya-

zawa) and two new members of the board of directors (Professors Duncan Chappell

and Reynald Ottenhof). In addition, one of the Society’s two international Centres

(the International Centre of Comparative Criminology in Montreal) is represented

through a paper by its Director, Professor Jean-Paul Bodeur; and proceedings of the

International Courses in Criminology at San Sebastian and Miskolc are published

in accordance with the policy that the International Annals of Criminology should

include reports on international meetings held under the auspices of the Society.

Georges KELLENS

PE 48

Presentaciôn

Varios articulos de este nûmero reflejan la nueva composici6n que los miem-

bros de la Sociedad internacional de criminologfa han conferido, en 1990, a su

Consejo de direcciôn : el nuevo Presidente de la Sociedad, Profesor Al Reiss, dos

de sus nuevos Vice-Presidentes, los Profesores Ulla Bondeson y Koichi Miyazawa,

y dos nuevos miembros del Consejo de direcciôn, los Profesores Duncan Chappell

y Reynald Ottenhof, publican importantes contribuciones. Estä igualmente represen-

tado uno de los dos Centros internacionales de la Sociedad, a través de un estudio

del Director del Centro internacional de criminologfa comparada de Montréal, Pro-

fesor Jean-Paul Brodeur. La publicacién de Actas de los cursos internacionales de

criminologfa de San Sebastiän y Miskolc responde, entre otros, a la voluntad de

consagrar los Anales internacionales de criminologfa, al menos parcialmente, a las

reuniones internacionales organizadas bajo el auspicio de la Sociedad.

Georges KELLENS

é to u

IN memoriam Marc Ancel

Le 4 septembre 1990 s’est éteint Marc Ancel, le Président, comme chacun

l’appelait avec respect et affection, après une vie de droiture, tout entière vouée à

la justice, la justice étant prise ici dans les deux acceptions du terme. Grand magis-

trat, le Président Ancel mit au service de la justice française ses qualités d’homme

et de juriste, gravissant aisément les échelons de la carrière judiciaire ; en ce qui le

concernait le cursus honorum des magistrats français prenait alors tout son sens,

puisque les honneurs correspondaient infailliblement aux mérites personnels et aux

missions accomplies. Grand penseur pénaliste, foncièrement et obstinément attaché

à la sauvegarde des droits de l’Homme et des libertés fondamentales, homme de

réflexion et homme d’action, le Président Ancel chercha sans cesse et avec une

conviction sans faille, à faire triompher la justice immanente, à protéger les faibles

et les victimes, et à offrir aux administrés et aux justiciables, les garanties néces-

saires à éviter ou à compenser tout abus d’autorité et de pouvoir.

En sa personne, dans ses pensées comme dans ses actes, le Président Ancel a

réuni les politiques criminelle et de sauvegarde des droits de l’Homme, notamment

dans la conception qu’il avait de la défense sociale, qui fut sa bannière et sa raison

de vivre. La défense sociale, il en avait hérité du grand Grammatica, qui en avait

fait un instrument de combat : une doctrine, qui devait renvoyer aux oubliettes de

l’histoire tant le droit pénal classique du XVIII° siècle, que les doctrines positivistes

et l’anthropologie criminelle du xIx°. D’une doctrine conduisant souvent à des

exclusions, le Président Ancel avait fait un mouvement, comme il le rappelait inlas-

sablement, je dirais plutôt une mouvance, un lieu de rassemblement autour d’un

programme minimum, publié pour la dernière fois dans son admirable résumé que

constitua «La défense sociale», éditée par les Presses Universitaires de France dans

la collection «Que sais-je ?», n° 2204, en 1985. De même, le Président Ancel exerça

une influence déterminante sur le nouveau programme minimum récemment adopté

par la Société internationale de défense sociale, dont il fut le père spirituel autant

que le Président, pendant près d’un demi-siècle.

D’autres que moi se feront un devoir d’égrener les fonctions, les réalisations et

les honneurs du Président Ancel. Fidèle à la mémoire de celui qui se voulait mo-

deste et qui avait l’humilité des vrais grands hommes, je n’en ferai rien, et me

contenterai de souligner deux aspects des activités du défunt qui lui tenaient beau-

coup à cœur.

Tout d’abord, le Président Ancel fut un infatigable défenseur de la langue

française, qu’il maniait à la perfection. Maître francophone, il avait le don d’expri-

mer et d’expliquer simplement ce qui ne l’est pas, trouvant toujours le mot juste, le

2 sOE

qualificatif illustratif, la formule pertinente et le ton propre, sans emphase ni polé-

mique superflue. Il était de ces rares hommes dont la clarté de la langue égale celle

de la pensée. Il n’est donc pas étonnant qu’à la fin de sa vie, il ait salué avec

enthousiasme la naissance de l’Association internationale des criminologues de lan-

gue française, dont il fut le Président d’honneur.

Ensuite, le Président Ancel a joué un rôle essentiel au niveau international.

Outre son action et son investissement dans les associations et sociétés savantes

actives dans le domaine des problèmes criminels, et notamment dans l’Association

internationale de droit pénal, la Fondation internationale pénale et pénitentiaire, la

Société internationale de criminologie et la Société internationale de défense sociale,

que personne n’ignore, le Président Ancel fut un homme-clé dans la création et le

développement de la «Branche», comme on l’appelle dans le jargon onusien, c’est-

à-dire, du Service de la prévention du crime et de la justice pénale, institué par les

Nations Unies. C’est aussi lui qui, allant trouver le Secrétaire Général de l’Organi-

sation, le regretté Dag Hammerskjôld, obtint qu’il propose avec succès à l’Assem-

blée Générale des Nations Unies, la tenue quinquennale des Congrès sur la

prévention du crime et le traitement des délinquants, dont le premier date de 1955,

et que le défunt fréquenta jusqu’au 7°, celui de Milan en 1985. Et ce ne fut que

justice, quand le 8° Congrès, tenu à La Havane du 25 août au 7 septembre 1990,

consacra plus d’une heure de sa séance de clôture, à rendre hommage au grand

disparu. Ce fut un moment d’intense émotion, quand les porte-parole de chacune

des régions du monde, rappelèrent l’apport éminent de Marc Ancel à la politique

criminelle, et se reconnurent de concert ses fils spirituels, même si la politique

criminelle de leurs gouvernements respectifs ne suit pas toujours, et de loin, le

programme de la défense sociale nouvelle. La preuve était ainsi faite que l’émotion

peut gagner même les milieux officiels et diplomatiques, et que les grands principes

de justice ont une valeur universelle, du moins dans l’hommage qu’on leur rend.

Par-delà la mort, le Président Marc Ancel est arrivé à ce qui fut l’objectif de

toute sa vie : réunir les hommes, mêmes ceux qu’a priori, tout sépare.

Pour résumer le Président Marc Ancel, l’homme et son œuvre, qu’il me soit

permis de plagier une formule célèbre, en affirmant haut et fort : Rien de ce qui est

humaniste ne lui était étranger.

Pierre-Henri BOLLE

s10e

Alphonse BONI

(1909-1989)

Alphonse Boni, que nous venons de perdre, était un de ces hommes qui pro-

voquent l’admiration et suscitent l’affection. C’est pourquoi nous sommes tous pro-

fondément bouleversés par sa disparition. Puissent ces quelques lignes traduire

fidèlement ce que furent sa vie et son œuvre.

Il est né en Côte d’Ivoire le 22 décembre 1909. Son père, Tanoh Ehouman, qui

exerçait les fonctions de chef de canton, et sa mère Akissidah l’envoyèrent faire ses

études en France. Il accomplit son cycle secondaire à Angoulême au Collège Saint-

Paul. Puis ce fut la Faculté de droit de Toulouse. A cette époque la chaire de droit

criminel et de science pénitentiaire avait pour titulaire Joseph Magnol. C’était un

des rares pénalistes intéressé par la criminologie. Il est hors de doute que l’influence

de ce maître a joué un rôle dans l’orientation future d’Alphonse Boni.

Docteur en droit, attaché au parquet général de Toulouse, il épousa en 1937

Mademoiselle Rose-Marie Galou. Il l’avait connue à la Faculté et elle appartenait à

une famille fort distinguée de la région. Commence alors sa carrière de magistrat

d’outre-mer : il occupe divers postes de juge, substitut, procureur en Afrique, est

détaché au Ministère de la France d’outre-mer. En 1958, il est procureur de 1'°

classe à Brazzaville.

Lors de l’indépendance de la Côte d’Ivoire, le Président Houphouet-Boigny

l’appelle et le voici Ministre de la Justice en 1959. Quatre ans plus tard, il accède

au poste prestigieux de Président de la Cour suprême. Au total, une grande carrière,

marquée aussi par le titre français de procureur général honoraire et des décorations

brillantes.

Alphonse Boni aurait pu se contenter d’être arrivé au sommet des honneurs.

Son grand mérite est aussi d’avoir voulu réaliser une œuvre scientifique, sur laquelle

il convient maintenant de s’arrêter.

En 1962, Alphonse Boni devient membre de la Société internationale de Cri-

minologie. L’année suivante, il est nommé délégué national en Côte d’Ivoire et

publie dans nos Annales une excellente étude sur «La mise en pratique des lois dans

les pays en voie de développement» (pp. 88 à 100). En 1964, il organise et dirige

le XVI° Cours international d’Abidjan, dont les travaux sont publiés deux ans après,

par la Librairie générale de droit et de jurisprudence, sous le titre «La criminalité

et sa prévention en Afrique». Et, en juillet 1969 la Chronique sociale de France

publie sa remarquable étude «La criminalité dans une ville d'Afrique Noire : Abid-

jan» (pp. 53-63).

-— 4929

Son dévouement à la criminologie ne s’est jamais démenti par la suite : mem-

bre de notre Conseil de Direction, il nous a fait bénéficier de sa grande expérience.

Et l’on peut dire, qu’il a suscité un mouvement criminologique en Afrique. De fait,

en 1970, le Docteur Asuni pouvait réaliser à Lagos (Nigeria), le XX° Cours inter-

national, consacré au traitement non institutionnel et réunissant des participants des

pays africains anglophones.

Le mérite essentiel d’Alphonse Boni est d’avoir ouvert la voie à la connais-

sance des problèmes criminologiques de l’Afrique Noire, où l’on rencontre tous les

types de criminalité

depuis la criminalité traditionnelle dominée par la magie,

jusqu’à celle engendrée par la solidarité familiale, ou encore par les conflits de

culture, en passant par celle plus banale d’ordre utilitaire et celle liée au progrès

technique, allant de l’imprudence à l’organisation. Les enfants, par suite de la brus-

que transition entre deux cultures, de l’éclatement de la famille coutumière et de

l’excès de liberté dans les villes — notamment à Abidjan — sont exposés à la

délinquance. Et le problème de la délinquance juvénile retenait l’attention inquiète

d’Alphonse Boni.

Cet homme juste et bon devait être fort éprouvé par la mort de son épouse et

la fin de sa vie en a été cruellement attristée. Ceux qui, comme moi, les ont bien

connus, savent que c’est un admirable roman d’amour qu’ont vécu les deux époux.

IIs savent aussi combien la réussite de leur fils — un distingué ambassadeur — et

de leurs filles leur ont procuré des satisfactions et de légitime fierté. Mais, Alphonse

Boni — je l’ai vu dans son regard, lors de notre dernier Conseil — demeurait atteint

par la perte qu’il avait subie. Néanmoins il s’efforçait de participer aux activités

internationales. Ainsi le Congrès de l’Association internationale de droit pénal, tenu

à Vienne en octobre dernier, fut honoré de sa présence. Au retour de cette rencontre,

il est mort à Toulouse le 14 octobre 1989.

Tel a été le destin exemplaire d’Alphonse Boni, dont je suis fier d’avoir été

l’ami.

Jean PINATEL

2056 61 JR

Au cours de l’année 1990, la Société Internationale de Criminologie a eu le

grand plaisir de voir honorer les mérites scientifiques de son précédent et de son

actuel Président.

Le Prof. Giacomo CANEPA, Professeur Titulaire, Directeur de l’Institut de Mé-

decine Légale de l’Université de Gênes (Italie) et du Centre International de Crimi-

nologie Clinique, a été reçu Docteur Honoris Causa de l’Université de Lyon

(France). Le Prof. Albert REISS Jr., Professeur à l’Université de YALE, Département

de Sociologie (U.S.A.), a reçu la Médaille d’Or BECCARIA décernée par la Société

Allemande de Criminologie.

Tous les Membres de notre Société se réjouiront de ces hautes distinctions. Il

nous a paru intéressant de demander à la rédaction des Annales Internationales de

Criminologie de reproduire le texte des contributions préparées à cette occasion par

chaque auteur, chacune traite, en effet, de thèmes d’un intérêt actuel.

Le Secrétaire Général,

Georges PICCA

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Une perspective déontologique,

pour la protection des droits

de l’'homme, dans le domaine

de la médecine légale,

psychiatrique et criminologique”

Giacomo CANEPA**

La situation solennelle, où je suis inséré en ce moment, m’offre la possibilité

d’exprimer mes émotions et mes sentiments de gratitude par l’évocation de quelques

sujets que j’ai abordés au cours de ma vie universitaire de chercheur.

Avant tout je pense aux problèmes de la protection des droits de l’homme,

considérée du point de vue déontologique et dans le cadre de la médecine légale,

psychiatrique et criminologique.

1. LES DROITS DE L’HOMME ET LE CONSEIL

DE L’EUROPE

La protection des droits de l’homme, pour ce qui concerne les citoyens en

général et notamment les malades mentaux et les délinquants, avant tout se rapporte

à certains documents fondamentaux qui se placent dans l’histoire du développement

des organisations internationales, telles que l’O.N.U. et le Conseil de l’Europe:

1) Le 10 décembre 1948, une «Déclaration Universelle des droits de l’homme» est

adoptée par l’Assemblée générale des Nations Unies.

2) Le 4 novembre 1950, les ministres de quinze Pays européens se réunissent à

Rome et signent la «Convention européenne des droits de l’homme», qui est

entrée en vigueur le 3 septembre 1953 et à l’heure actuelle a été ratifiée par les

23 Etats membres du Conseil de l’Europe.

* Allocution présentée le 12 octobre 1990, à l’occasion de la nomination officielle au titre de

«Docteur Honoris Causa» de l’Université de Lyon. Dans le texte sont citées, entre parenthèses,

les années des publications de l’auteur, dont les références sont données à la fin du texte.

** Professeur titulaire, directeur de l’Institut de Médecine légale et du Centre International

de Criminologie clinique, Université de Gênes (Italie).

2 As e

Cette «Convention», à la différence de la «Déclaration Universelle» de

l’O.N.U. qui formule des principes d’ordre général, techniquement constitue un

traité international, une sorte de Contrat en vertu duquel les Etats assument certaines

obligations juridiques, en reconnaissant aux citoyens les droits qui sont cités et

protégés par la Convention.

Par conséquent, suivant la Convention, le citoyen qui estime d’avoir subi une

violation de ses droits peut engager une procédure contre le gouvernement qu’il juge

responsable. De même façon, les gouvernements sont tenus à veiller à ce que les

droits de tous ceux qui relèvent de leur juridiction soient protégés conformement à

la Convention. Cela a obligé certains Etats à modifier leur législation, avant de

pouvoir ratifier la Convention même. Enfin la Convention a établi que la protection

des droits de l’homme est assurée par deux organismes institués «ad hoc»: la

«Commission» et la «Cour des Droits de l’homme». Les droits principaux, protégés

par la Convention, concernent: le droit à la vie; à la liberté et à la sûreté de la

personne; à un jugement équitable en matière civile et pénale; au respect de la vie

privée et familiale, du domicile et de la correspondance ; à la liberté de pensée, de

conscience et de religion; à la liberté d’expression, de réunion et d’association; de

se marier et de fonder une famille, compte tenu de l’égalité des droits et devoirs

entre époux; à la liberté de circulation et au choix de la résidence; de quitter

n’importe quel Pays y compris le sien (voir «La protection des droits de l’homme

en Europe». Direction des Droits de l’Homme, Conseil de l’Europe, Strasbourg,

H.90.6F, janvier 1990).

La Convention reconnaît enfin aux Etats la possibilité de suspendre leurs obli-

gations en cas de guerre ou d’autres situations d’urgence.

Mais aucun Etat ne peut se soustraire à l’obligation de respecter le droit à la

vie, ni à l’interdiction de la torture, de la peine de mort, de l’esclavage et de la

rétroactivité des lois pénales.

A la Cour Européenne des Droits de l’homme, constituée par un nombre de

juges égal à celui des Etats membres du Conseil de l’Europe, peuvent s’adresser

soit les personnes physiques soit les Etats.

2. PERSPECTIVES NOUVELLES

POUR LA MEDECINE LEGALE DEONTOLOGIQUE

Pour compléter cet aperçu sur les droits de l’homme dans le cadre européen,

je pense qu’il est nécessaire de faire une référence personnelle à l’époque, très

récente (1981-1985), où j’ai fréquenté à Strasbourg le Palais du Conseil de l’Europe,

en ma qualité de membre (et ensuite président) du Conseil Scientifique Criminolo-

gique, dont récemment le Président Ancel a souligné l’importance dans le domaine

des Droits de l’homme (Revue Internationale de Criminologie, vol. XLIII, n. 2,

p. 141, 1990).

R O

Je me souviens d’avoir apprécié, à l’époque, la valeur et la signification, dans

les couloirs proches des salles des réunions, d’une série de bustes en bronze des

N

grands personnages historiques qui ont été à l’origine du mouvement finalisé à

construire une fédération des Etats de l’Europe.

Je me souviens de deux italiens :

Alcide De Gasperi, qui a été à l’origine de ce mouvement avec Robert Schu-

mann et Konrad Adenauer; Giuseppe Mazzini (1805-1872), pionnier et précurseur

du mouvement fédéraliste européen, ainsi que théoricien génial des «droits de

l’homme» fondamentaux, qu’il a élaboré en rapport aux «devoirs de l’homme»,

prémisse indispensable, et justification, suivant sa pensée, de ces droits mêmes.

Ce principe doit être surtout souligné à l’heure actuelle, où nous constatons très

souvent la tendance à «déresponsabiliser» (au lieu de «responsabiliser»), en souli-

gnant seulement l’exigence que les droits soient satisfaits, sans signaler l’exigence

primaire que les devoirs soient accomplis.

Sur ces points, il est intéressant de citer textuellement quelques phrases, déga-

gées de l’introduction au volume «Dei doveri dell’uomo» (Ed. Mursia, Milano,

1972, pp. 28-30), ouvrage que Giuseppe Mazzini, le grand penseur génois, a écrit

en 1860 (traduction du texte italien suivant la «Edizione Nazionale degli Scritti di

Giuseppe Mazzini», Ed. Galeati, Imola, 1906 et années suivantes, vol. 69) :

1) «La connaissance de leurs droits n’est pas suffisante aux hommes pour réaliser une

amélioration importante et durable. Mais il ne faut pas renoncer à ses propres droits;

je pense toutefois que les droits représentent la conséquence de devoirs accomplis».

2)

«Les améliorations matérielles sont essentielles et nous continuerons le combat

pour les conquérir, même si ces améliorations ne sont pas le but principal et

unique des hommes, par exemple d’être bien nourris et logés. Mais nous conti-

nuerons ce combat parce que la conscience de votre dignité et votre développe-

ment moral ne peuvent pas être réalisés si vous continuez à vivre, comme à

l’heure actuelle, dans une lutte continue contre la misère».

3

=

«Par conséquent vous devez chercher et enfin obtenir ces changements matériels,

mais il s’agit de la recherche d’un moyen non d’un but. Vous devez rechercher

ces changements pour accomplir un devoir, non seulement pour exercer un

droit : avec la finalité de devenir meilleurs et non d’obtenir uniquement le bon-

heur matériel».

A mon avis ces problématiques présentent une actualité considérable, surtout

au centre des civilisations dites «du bien-être» et «de consommation». Il s’agit de

conceptions qui élargissent la compétence de la déontologie (en tant que science

des devoirs) en direction aussi des droits de l’homme et de la protection de ces

droits. En effet, l’approfondissement des droits exige la connaissance des devoirs,

ou inversement, ainsi que des pouvoirs.

Je pense que cette conception élargie de la déontologie présente une actualité

particulière et une signification spéciale dans le domaine de la médecine légale psychia-

trique et crimonologique. Sur ce point je vais présenter quelques exemples (1984) :

—2 500es

1) Le citoyen auteur d’une infraction, soumis par conséquent à une limitation plus

ou moins grave de sa liberté personnelle, doit être protégé pour la tutelle de ses

droits.

L’exigence de cette protection sera plus évident d’une façon proportionnelle au

défaut de sa participation responsable à l’infraction (pour des raisons indivi-

duelles ou sociales, psychologiques ou psychiatriques).

2)

Mais si l’activité de traitement progresse vers la socialisation, on devra réaliser

en même temps un passage graduel et nuancé, à partir de la protection passive

des droits, en direction d’un accomplissement des devoirs, d’une façon active et

enfin autonome.

3)

Au contraire, l’exigence d’accomplir ses propres devoirs sera préalable, dès le

début, pour les opérateurs sociaux ou les psychothérapeutes, qui travaillent dans

le cadre du système de traitement. Leurs devoirs incluent avant tout l’exigence

de respecter les droits de la personne qui est soumise au traitement (y compris

le droit de refuser le traitement, c’est-à-dire de ne pas collaborer).

4

=

L’accomplissement des devoirs, finalisés à la prévention et au traitement, repré-

sente enfin une exigence qu’il faut étendre à tous les citoyens d’une communau-

té, de façon à constituer une véritable «responsabilité civique», ou «citoyenneté

responsable» (1981, 1989).

Tout cela comporte une préparation adéquate de tous les citoyens, dans le

domaine de la prévention et du traitement; cas contraire même, les mesures de

traitement en liberté, alternatives à la détention, n’auraient aucune efficacité (1990).

3. DROITS DE L’HOMME, MEDECINE LEGALE

ET PERSONNALITE

Une connexion profonde existe entre le domaine des droits de l’homme et celui

de la médecine légale, suivant la conception européenne. En effet, cette connexion

s’identifie dans l’exigence de considérer l’homme comme l’expression d’une singu-

larité particulière et individuelle, c’est-à-dire en tant que «personnalité».

La personnalité est à l’origine du comportement et concerne l’individu consi-

déré non seulement comme un organisme biologique, mais aussi comme un porteur

de valeurs culturelles transmises et comme membre d’un groupe ou système social

(1971).

La médecine légale est une science interdisciplinaire qui étudie la personnalité

dans ses rapports avec le droit (1953, 1976, 1983), notamment avec le système

juridico-social en vigueur, du point de vue déontologique et en matière pénale,

civile et de sécurité sociale.

Mais sur ce point il faut établir, d’un point de vue général, si la recherche

empirique (clinique, psychosociologique, etc.) sur l’homme et sa personnalité est

légitime et justifiée.

Pemot e

L’histoire de la philosophie nous apprend que le problème de l’homme et de

son individualité particulière, distinguée des autres, c’est-à-dire le problème de la

personnalité, a suivi pendant le cours des siècles une évolution singulière.

Il a été posé en tant que réalité qu’on doit anéantir et identifier dans le «néant»

(1966), suivant les savants des anciennes civilisations de la Chine et de l’Inde.

Ensuite le concept de personnalité n’a pas occupé une position de premier plan dans

la philosophie de la Grèce, inspirée par le principe d’Aristote, suivant lequel il ne

peut exister de science de l’individuel, étant donné que la science n’appartient qu’au

domaine de l’universel.

Par la suite, ce concept a connu une systématisation métaphysique dans la

conception chrétienne scolastique de saint Thomas et une orientation critique dans

la pensée d’Emmanuel Kant.

à

N

Enfin, il a abouti

une conception d’affirmation obsédante et particulariste

dans la philosophie contemporaine de l’existentialisme, suivant laquelle la person-

nalité trouve sa racine dans le «néant»

un concept qui semble donc constituer le

point de départ et le point d’arrivée dans l’histoire de l’évolution philosophique du

concept de personnalité (1953, 1974, 1987).

Sur ce point j'ai observé en son temps qu’une révision critique de ce concept

s’impose : une révision qui doit se fonder sur l’analyse de la conception de Kant et

particulièrement, dans le cadre de la «raison pure», sur le dualisme Kantien entre

«phénomène» et «noumène», qui représentent les deux aspects de tout acte de

connaissance («expérience») :

1) l’aspect «phénoménique» de l’expérience, c’est-à-dire l’apparence de l’objet

examiné;

2) l’aspect «nouménique» de l’expérience, c’est-à-dire la réalité inconnue de cet

objet, ou «chose pensée», ou «chose en soi-même».

Dans la situation clinique, on n’étudie pas l’homme; on étudie un homme, du

point de vue biologique, psychologique et social. Par conséquent l’examen de cet

homme :

1) en tant que «phénomène», constitue le problème de la personnalité et relève de

la compétence des sciences d’observation empirique, au niveau individuel (cli-

nique);

2) en tant que «noumène», l’examen de cet homme se rapporte au problème de la

personne et relève de la compétence de la philosophie.

Cette distinction offre à la philosophie un nouveau domaine d’exploration (la

personne) et en même temps va définir le domaine des sciences d’observation

empirique de l’homme, qui est limité à l’aspect «phénoménique» de cet homme (la

personnalité).

Compte tenu de cette distinction, on peut conclure que la personnalité, en tant

qu’objet d’étude des sciences d’observation empirique, est constituée par le

complexe des éléments ou données qui résultent de l’examen approfondi d’un

105

homme, dans son individualité particulière, réalisé par les méthodes les plus

complètes et valables, afin de la distinguer de toutes les autres.

Cette conclusion va coïncider avec une définition «méthodologique» et en

même temps «évolutive», étant donné le développement et le progrès scientifique

des méthodes d’exploration de la personnalité individuelle.

Ce progrès scientifique peut-il consentir un jour que la personnalité occupe le

domaine propre à la personne ?

Cette invasion, à mon avis, est impossible. En effet, si je formule l’hypothèse

que le progrès scientifique puisse permettre au chercheur empirique d’expliquer tout

ce qui existe dans l’univers (et par conséquent soi-même aussi), dans ce cas on se

retrouve face au problème suivant : si je pense avoir expliqué moi-même, comment

sera-t-il possible de connaître, en moi, cet autre moi qui a expliqué moi-même ?

Cet «autre moi» aurait la signification de la renaissance de la personne qui,

face au chercheur, va se présenter de nouveau en termes de personnalité.

En conclusion : personne et personnalité se placent, chacune d’elles, dans un

domaine différent. Le domaine de la personnalité va se développer suivant les

progrès de la recherche empirique ; il ne se développe pas au préjudice du domaine

de la personne, parce que l’élargissement du domaine de l’une va produire un

élargissement proportionnel du domaine de l’autre.

Personnalité et personne se poursuivent sans cesse, dans un devenir perpétuel,

qui représente la profonde dialectique de la vie, considérée en tant que recherche.

Je vais terminer ici mon exposé, après avoir encore formulé deux observations.

La première se rapporte au domaine déontologique, et précisément à l’exigence

de l’approfondissement des droits afin de mieux connaître les devoirs, et à l’appro-

fondissement des devoirs afin de mieux connaître les droits.

On peut dégager cette dialectique de la doctrine d’un grand personnage du

passé, Giuseppe Mazzini (1805-1872). À côté de lui je me souviens des autres deux

grands personnages gênois du passé

Nicolé Paganini (1782-1840) qui avec les

innovations techniques de son violon a provoqué une véritable révolution dans le

domaine de l’art musical; plus anciennement le navigateur Cristoforo Colombo

(1451-1506) célébré aujourd’hui, 12 octobre, à Gênes pour la découverte des Amé-

riques il y a presque cinq cents années (12 octobre 1492). A mon avis il représente

le symbole de la recherche, considérée comme l’exploration de l’inconnu.

Je m’adresse encore une fois, avec une émotion profonde, aux Autorités aca-

démiques de l’Université de Lyon pour exprimer mes sentiments de gratitude, dans

un jour de l’année qui, pour un génois comme moi, a la signification d’un grand

anniversaire, pour une raison double.

Et enfin, je vais conclure par la dernière observation, qui se propose de syn-

thétiser la signification de la culture française, que j’ai toujours aimée en tant qu’ex-

pression de la culture universelle.

Les réflexes évidents de cette culture ont été appréciés par moi depuis long-

temps au cours des discussions avec les Collègues de la Faculté de Médecine de

l’Université de Lyon, et notamment les Collègues de Médecine légale.

Il s’agit évidemment des éléments fondamentaux d’une culture universelle,

mais typiquement française, que je pense pouvoir identifier dans ces éléments : «les

idées claires et distinctes» suivant René Descartes, «l’esprit de finesse» suivant

Blaise Pascal, «l’élan vital et l’évolution créatrice» suivant Henri Bergson.

REFERENCES BIBLIOGRAPHIQUES

CANEPA, G., Il concetto di personalità nei suoi aspetti filosofici, biologici e medico-legali. Ed.

Ateneo, Roma, 1953.

CANEPA, G., La contribution des théories de personnalité à la recherche criminologique

aspects cliniques. Rapport présenté au V° Congrès International de criminologie, Mon-

tréal. Archivio di psicologia, neurologia e psichiatria, année 27, p. 336, 1966.

CANEPA, G., L’épistémologie et la recherche criminologique. Revue de Droit pénal et de

criminologie, vol. 51, p. 761, 1971.

CANEPA, G., Personalità e delinquenza. Ed. Giuffrè, Milano, 1974.

CANEPA, G., Les problèmes posés par l’expertise psychiatrique dans le cadre de l’activité

médico-légale et de ses perspectives criminologiques. Revue de Science criminelle et de

droit pénal comparé, n. 4, p. 887, 1976.

CANEPA, G., Vers une criminologie nouvelle, fondée sur le développement des valeurs et de

la responsabilité civique. Revue de Science criminelle et de droit pénal comparé, n. 3,

p. 587, 1981.

CANEPA, G., Les bases épistémologiques et pratiques de l’unité de la médecine légale. Journal

de Médecine légale. Droit Médical, vol. 26, p. 571, 1983.

CANEPA, G., Introduzione ad una prospettiva deontologica, per la difesa dei diritti umani, nel

campo della criminologia. Rassegna di Criminologia, vol. XV, n. 4 suppl., p. 1, 1984.

CANEPA, G., La personnalité criminelle. Orientation traditionnelle de la recherche, intérêt

actuel et perspectives d’avenir. Rapport présenté au «Colloque International» organisé à

l’occasion du 25° Anniversaire de l’Ecole de Criminologie (Université de Montréal, 30

septembre-4 octobre 1985). Revue internationale de criminologie et de police technique,

n. l, p. 28, 1987.

CANEPA, G., Perspectives nouvelles en criminologie. Développement des valeurs et motivation

du comportement. Rapport présenté à la II* Conférence Aquinas sur la responsabilité

civique (Rome, 21 mai 1987). In Modernité et Criminogènese par L. Lombardi Vallauri

(p. 9). Ed. Vrin, Paris, 1989.

CANEPA, G., Traitement en milieu libre entre surveillance electronique et approche clinique.

Rapport au 6° Colloque International de la F.I.P.P. (Poitiers, 3-7 octobre 1987). In L’é-

laboration des règles minima pour le traitement en milieu libre (par la F.1.P.P.), p. 183.

Ed. Cujas, Paris, 1990.

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Perplexing questions

in the understanding and control

of violent behavior

By Albert J. REiss, Jr., Yale University, U.S.A

INTRODUCTION

This paper has two objectives. The first is to frame and answer two perplexing

questions : How shall we compare the violent behavior of societies and their mem-

bers? This question arises in part from a subsidiary question often asked in the

United States. Is the United States a violent society? This question can be formulated

somewhat differently : By what measures shall we compare the violent behavior of

societies? A second perplexing question is

How can we understand or explain

differences in the kind and amount of violent behavior within and among societies ?

These questions are deliberately phrased in terms of understanding and controlling

violent behavior rather than the less inclusive understanding and controlling violent

crime. Only some violent behavior is socially constructed as criminal in societies.

My modest hope is that criminologists may reshape their understanding of violent

crime by thinking about explanations of violent behavior and its control.

My first objective is to address the question : What is violent behavior and how

shall we think about it?

THE SOCIAL CONSTRUCTION OF VIOLENT

BEHAVIOR

Violent behaviors and violent crimes then are social constructions. They are

formally constructed by State law and less formally by social movements and con-

sensus in everyday life. Common law countries recognize that the foundation of

their formal legal institutions are the informal social constructions of a common law.

Remarks Prepared for a Meeting of The Neue Kriminologische Gesellschaft (N.K.G.) Meeting

in Frankfurt, Republic of Germany. October 18, 1990 following the award of the Beccaria

Gold Medal.

M 140

What we see in the criminalization and decriminalization of behavior is a process

of social construction and reconstruction (1).

Violent behavior is socially constructed in many forms. It can be expressed

collectively as in wars and riots, interpersonally as in most violent behavior among

persons, or personally (individually) as in suicide and some other injuries and deaths

that we socially construct as accidents. The consequences of that behavior is also

socially constructed such as the harms or injuries from violence and the idea of a

victim and an offender in criminal violence. The intended or actual victims of

violence can be people, animals, or property. But immediate victims of violence can

be surrogates for organizational targets as exhibited in the acts of terrorists seeking

to undermine organized power or the bombing and killing of civilian populations

in warfare.

Theoretically, there are proactive and reactive strategies (2) of violent behavior.

Proactive violence is socially constructed as motivated or pre-meditated against

specific targets. Criminologists are most likely to regard these behaviors as falling

within the doctrine of mens rea and to think of them as violent crimes. But by no

means does all such behavior qualify as violent crime under sovereign authority.

From a decision theory perspective, proactive violence may be regarded as a rational

choice, as when violent means are used as deterrents or to achieve collective ends

(3). Examples abound in the use of physical punishment. The State use of such

means is not uncommon historically and in the contemporary world. The use of

physical punishment to discipline school children, of torture by state agents such as

the police, of capital punishment for certain crimes, and of genocide for categoric

members of a society are examples. Proactive private use of violent physical force

also is not uncommon. Organizations often use violent means to undermine, seize,

or maintain power. Terrorists and organized or syndicated crime, as well as the

sovereign state, use violence instrumentally. Both the State and the Mafia, for ex-

ample, use capital punishment as deterrents.

Strategically, violent behavior can also be reactive or defensive. Societies may

criminalize or justify reactive violence. Only some kinds of reactive violence are

considered justifiable by State law for individual and collective defense. The State

may legitimate the use of violence by citizens faced with serious bodily harm as a

right to self-defense or of state agents, such as the police to use violence in self-

defense or to enforce an arrest of a felon. We recognize this in classifying events

(1) Parenthetically, I note that social construction is a more or less continuous process in

societies. Formally this is most explicit in a case law system or in the legislative process but

it is part and process of all social behavior.

(2) Albert J. Reiss, Jr. and David J. Bordua, “Environment and Organization; À Perspective

on the Police”, in David J. Bordua (ed.), The Police. Six Sociological Essays, New York,

Wiley, 1967, p. 41.

(3) That the decision may be a matter of rational choice does not preclude irrational motiva-

tions or collective sentiments underlying such choices.

se UE 2

as justifiable homicides, law-enforcement related deaths, or legitimate exercise of

police power. States also legitimate the use of organized military violence for col-

lective self-defense (4).

Not all violence is constructed as a strategic exercise of power, however. It can

be seen as spontaneous as well as in the socalled crimes of passion or in collective

forms such as riots.

Suffice it to say, then, that there is considerable diversity in what human be-

havior is socially constructed as violent and which violence shall be regarded as

criminal. Similarly, there is diversity in the extent to which societies legitimate

violence and the ways for its sanction and control. Understanding and explaining

this diversity in violent behavior and integrating what is known about it is a formi-

dable task and one that lies beyond the scope of my endeavors for this paper, even

though the perplexing questions about violent societies and violence in societies

eventually requires taking up that task.

The goal for this paper is far more modest, though still quite formidable. Only

two forms of violent behavior and their social construction will be considered :

personal and interpersonal violence. Personal violence is violence of the self

directed against the self whereas interpersonal violence is that which occurs be-

tween small numbers of persons. Personal violence takes a variety of forms of

harming of the self by the use of violent means (5), the most violent forms being

self-mutilation and suicide. Interpersonal violence perhaps is more varied in the

forms that it takes and includes both proactive and reactive forms of interpersonal

violence. From a behavioral perspective these are classes of assaults — assaults on

the self and assaults against other persons. The criminal classification of violent

offenses in the common-law defines sub-classes of threatened, attempted, and

completed assaults upon other persons such as homicide, aggravated and simple

assaults, sexual assaults, including rape, and robbery. At law in the United States,

personal violence is no longer regarded as criminal but rather as deviance requiring

medical treatment; self-mutilation and attempted suicide no longer are considered

criminal acts (6).

(4) State use in this context must be separated from the State use of military violence as a

deterrent to the exercise of force, although such acts are ordinarily justified as essential to the

collective welfare and defensive.

(5) The definition of what constitutes violent means is also problematic. For example, is

visible harming of the self required if it is to be considered a violent means ? Is poisoning a

violent means? For purposes of this paper all self-inflicted means that can cause death are

considered a violent means. Poisoning thus is treated a violent means for suicide, as it is for

homicide, if its use is intended.

(6) The decriminalization of attempted suicide is of interest in connection with a consideration

of this topic. H.L.A. Hart gives an interesting account of its abolition in England and Wales.

ds05 d

MEASURING SOCIAL CONSTRUCTIONS OF

VIOLENT BEHAVIOR AND VIOLENT CRIME

Changes in the social construction of violent crimes and in their reporting over

the past decades in the United States pose serious problems for measuring changes

in violent behavior and violent crime. Below we shall examine several changes in

the social construction of violent behavior and their implications for measuring the

level of violent crime primarily within the context of changes in the social construc-

tion of violent crime in the U.S.A.

Recall that the basic types of violent crime are threatened, attempted or actual

assaults on the person. There are serious threshold problems in determining when

any incident is a threat rather than an attempt and when any attempt is a completed

crime. These distinctions are themselves social constructions at law and in its ap-

plication to particular behavior. No attempt is made here to deal with that problem

except to point out that in the U.S.A. National Crime Survey threats and attempts

are more likely to show changes over time than are completed acts (7). Just how

much violent crime there is at any period of time thus is vulnerable to both citizen

and official social constructions of threats and attempts to commit violent crimes as

well as of their completion.

Rather than focus upon the social constructions of reporting behavior, we shall

focus on how changing constructions of assaults in the United States have had a

profound but as yet only grossly measured effect on the nature and level of violent

crime in American Society. The net effect of these social changes has been to

substantially increase the mobilization of law enforcement and other public and

private systems to deal with assaults and hence to increase public and private infor-

mation on violent crime in the United States.

Perhaps one of the more significant changes that has taken place in the United

States in the last forty years are changes affecting the role of women in the society.

Without considering these many changes, one effect has been considerable moral

and legal pressure for the police and alternative institutions to treat misdemeanor

domestic violence as a criminal assault. Historically, the police in the United States

dealt with reported domestic assaults on women as crimes only if there was a

serious bodily injury so that it qualified as an aggravated assault. As a consequence

of some major tort liability suits against police departments and the results of the

Minneapolis domestic violence experiments that concluded arrest was a deterrent to

repeated domestic assault (8), there has been a substantial change in their reporting.

(7) Albert J. Reiss, Jr. “Les Problèmes du Développement d’Indicateurs Statistiques de la

Criminalité”, in R. Gassin and F. Boulan (eds), Connaître la Criminalité : Le Dernier Etat de

la Question. Presses Universitaires d’Aix-Marseille, 1983, pp. 63-104.

(8) Lawrence W. Sherman and Ellen G. Cohn, “The Impact of Research on Legal Policy :

The Minneapolis Domestic Violence Experiment”, Law and Society Review 23 (1989) : 117-

144.

n D6s

One-fifth of the 50 U.S.A. states now mandate arrest in all cases of misdemeanor

as well as for felony domestic assaults a fact that affects the threshold of what

constitutes a simple as contrasted with an aggravated assault. Most importantly,

mandatory arrest substantially increases the official reporting of domestic violence

as it reduces police discretion to threshold decisions. In the state of Connecticut, for

example, the official reporting of domestic assaults more than doubled following

the mandatory arrest law (9). Just how much of the recent rise in the assault rate in

the U.S.A. is to be attributed to an increase in domestic violence reporting cannot

be determined because our system of national reporting does not call for separate

reporting of domestic violence. It seems reasonable to conclude, nevertheless, that

changes in the social construction of domestic violence and police response to such

violence rather than substantial change in the amount of such behavior in the society

accounts for some of the observed increased in assault rates.

There are other examples of recent changes in the social construction of assault.

The most recent of these has been the social construction of bias crimes. Bias crimes

are those committed against members of minority groups. Minority persons include

not only ethnic and religious minorities but those based on sexual preference as

well. The social construction of bias crime has its roots in the Civil Rights and Gay

Rights movements in the U.S.A. Not all bias crimes are violent crimes against

persons but bias crime statutes increase the penalties for some of the traditional

crimes and appear to have had an effect on their reporting to law enforcement

agencies. This appears to be the case especially for assaults on males motivated by

prejudice against persons whose sexual preference or minority status is known.

The construction of sexual assaults has undergone considerable change as well

through reconstruction by members of the women’s and gay rights social and politi-

cal movements. This is particularly noteworthy in two respects, the redefinition of

rape and of other sexual assaults and the redefinition of their reporting. The effect

of the redefinition of rape and its reporting to the police is still being assessed. The

public’s conception of rape has been reconstructed in several respects. Firstly, social

movements have been reasonably successful in removing the social stigma sur-

rounding the reporting of rape. Of special importance is the success that women’s

groups have had on insuring that all law enforcement processing of women who

have been assaulted will be conducted with dignity and sensitivity to the feelings

of women. To insure this, whenever possible, initial investigations of sexual crimes

against women that require the victim’s cooperation now are handled by female

police officers. Moreover, social support groups now aid women during this process

so that they are not socially stigmatized during and after its reporting.

A second major change is reconstruction of what constitutes a reportable sexual

assault. This has occurred in several respects. For young women, particularly, there

now is a concept of date rape and of the moral obligation to report coerced or

(9) State of Connecticut, Annual Report of the Judiciary.

nonconsenting sexual intercourse as rape. Although in the past few such rapes were

reported because of the youthful age and social stigmatization of the women, these

women now are more likely to define themselves as victims when coerced into

sexual intercourse while going on a date with a man. Going along with this is a

redefinition of the necessity for equal consent to sexual relations and correlatively

a redefinition of coercion. This redefinition undoubtedly has a greater impact on

self-report surveys of sexual assaults than on police reported incidents of rape.

Some states also have forged a redefinition of rape at law. Historically, the law

of evidence for conviction on a charge of rape required two independent sources of

evidence that it had occurred. Typically this required some evidence of coerced

penetration of the female or the recovery of semen, procedures often regarded as

socially degrading by the victim. Now some states require only the sworn testimony

of the female for conviction, providing there is no evidence to impeach that testi-

mony. Moreover, the victim’s status for moral integrity is ordinarily not permitted

as grounds for impeachment. The nature of these changes is both to redefine what

behavior comprises rape and why there are obligations to report the victimization.

Increasingly, also, the stigmatization of males for reporting violent sexual assaults

is attenuating. I note in passing that attempts to reconstitute marital rape as a crime

have so far failed.

One other movement is underway. With a growing concern for child abuse and

neglect, there is increased reporting of simple and aggravated assaults, especially of

sexual assaults, on children. Again this is an area in which substantial changes

affecting its reporting as well as its constituent elements is underway. Recent case

law in the U.S.A., for example, now permits testimony of children who are victims

of sexual and other major forms of abuse to testify without having to submit to

cross-examination or to give testimony in the presence of the accused.

Just how much these reconstructions of violent behavior and its reporting as

violent crime has on specific categoric rates of violent crime is not easily deter-

mined. There is considerable evidence only for the effect of reporting domestic

assaults on the simple or misdemeanor assault rate.

SYSTEMIC CHANGES AND THEIR EFFECT

ON VIOLENT CRIME

A number of systemic changes appear to have affected the volume of violent

crime in the U.S.A. The most noteworthy of these is the growth of illegal drug

markets. The second major one is changes in the composition of the population.

The growth of drug markets in many countries is well-documented. What is of

special interest are the ways that violence is increased by the growth of that market

in the U.S.A. There are two ways in which the increase in demand and supply of

drugs has increased violent crime. The first is that the violent crime of armed

robbery has increased with the demand for drugs in a cash market. Robbery has the

OS / 10

advantage of netting cash to buy drugs or personal effects such as jewelry that are

more readily converted to cash. The increase in armed robbery has also increased

the felony murder rate somewhat (10). This may be due to the greater use of guns

in robbery in the U.S.A. as compared with other countries as well as to a higher

robbery rate (11).

A second major systemic change is the territorial organization of drug markets

with the proliferation of small illegal markets for drugs. Typically illegal markets

in the U.S.A. are controlled by a syndicated structure that uses violence only spar-

ingly to control the size and scope of its market. Moreover, traditionally illegal

market syndicates had less need for violence to control their territory because they

could co-opt and corrupt the public police to permit the illegal market. Such con-

ditions do not prevail in current urban drug markets for several reasons. The illegal

sales market in drugs is disorganized not only because it lacks central coordination

but because violence is used as the major way to expand the scope of local territorial

markets and to defend local markets against encroachment from other entrepreneurs.

That violence is armed and high calibre weapons that are particularly deadly are

used. Additionally, it is not uncommon for shootings to be used to disrupt a local

market, e.g., by so-called drive-by shootings.

The illegal markets in drugs in the U.S.A. lack central coordination and control

for yet other reasons. They are only weak ties in the distribution network. The

traditional syndicated organizations are based on close personal affiliations. The ties

are weaker among the large numbers of entrepreneurs from the newer ethnic minori-

ties in American cities — African Americans and Hispanic immigrants — who have

entered these illegal markets that are based in their neighborhoods. These new

entrepreneurs also lack the traditional ties of protection from the police.

CROSS-NATIONAL COMPARISONS

A recurring question in the United States : “Is the United States more violent

than most contemporary societies ?” is not easily answered. To answer this question

we must make cross-national comparisons of their violent behavior rates. Those

comparisons are not easily made given both national variation in laws defining

violent behavior and differences in the legal processing of violent behavior as

crimes. The continuing social construction of violent behavior as violent crime

(10) A fe]ôny murder is one committed during the course of committing any felony. There is

some evidence that persons who are under the influence of drugs and/or are young inexpe-

rienced robbers are more likely to fire their weapon during an armed robbery.

(11) For comparative statistics of robbery rates and the use of weapons in robbery, by country,

see Jan J. M. van Dijk, Pat Mayhew, and Martin Killias, Experiences of Crime Across the

World : Key Findings of the 1989 International Survey, Kluwer, 1990, p. 27.

Qe

illustrated for the United States, moreover, makes it difficult to compare temporal

rates for most major types of violent crime. Accordingly, we shall limit our com-

parisons to violent behavior that is least subject to cross-national variability, death

rates from violent behavior. Consideration is limited to suicide as personal violence

and homicide as interpersonal violence.

Clearly, much violent behavior that falls within each of these is excluded. Here

we simply draw attention to two consequences of these exclusions. One of these is

that it limits our consideration of interpersonal violence to homicide which is the

most heinous of the violent criminal acts. This does not seem like a severe limitation

if we are not trying to understand cross-national variation in types of violent crim-

inal behavior since homicide is the outcome of the more general class of assaults,

an outcome that can be compared across societies (12). Perhaps a more significant

omission is the exclusion of all legitimate forms of interpersonal violence such as

deaths by euthanasia, law enforcement related deaths, justifiable homicides and

some treated as accidental deaths or deaths due to negligence (13).

The simple measure chosen for cross-national comparisons, then, of how much

violence there is within a society or how violent is a society is the combined rate

of suicides and homicides in a society. For the most part, however, we shall be

interested in disaggregating that measure and looking at both the rate of suicide and

homicide in a society and the ratio of homicides to suicides. To understand both the

magnitude of and variation in these rates in the U.S.A., we shall disaggregate them

for certain structural groups in the society, particularly race and gender status cate-

gories. In thinking about this indicator of violent behavior in societies, one must

bear in mind that homicides are counts of victims of assaults whereas the suicide

also commits the act of assault (14).

(12) Death rates from both suicide and homicide are affected by other causes such as the level

of emergency service available for persons who are greviously assaulted or who attempt

suicide. Unfortunately, there are no data on deaths averted due to medical care available for

cross-national comparisons. Death rates also are subject to reporting practices of medical

examiners with suicide being most subject to underreporting in the U.S.A. See, The National

Committee for Injury Prevention and Control, Injury Prevention : Meeting the Challenge.

American Journal of Preventive Medicine, Oxford U. Press, 1989, p. 252.

(13) Some accidental deaths and deaths due to negligence are gradually being criminalized

as, for example, those associated with some forms of driving while under the influence of

drugs or alcohol and reckless endagerment.

(14) Not uncommonly, suicide and homicide are regarded as acts of aggression turned against

the self or against others. For an early theoretical formulation see Andrew F. Henry and James

F. Short, Jr., Suicide and Homicide. Free Press, 1954.

» 308

SUICIDE AND HOMICIDE IN THE U.S.A.

AND EUROPE

We shall summarize some temporal patterns of homicide in the U.S.A., intro-

ducing some country comparisons, before summarizing what we know about suicide

comparisons.

Homicide in the U.S.A. declined from the 1930’s to an historical low of about

5.2 per 100,000 persons by 1960 (15). This decline in homicide rates in the U.S.A.

coincides with an ebb in homicide rates in virtually all western European countries,

though the European rate was less than half that of the U.S.A. for this period.

Beginning in the late 1950’s, homicide rates seem to have risen somewhat in most

countries, though less so in Europe than in the U.S.A. By the mid 1980’s, however,

the discrepancy between the U.S.A. and European countries had increased so that

in 1984 the U.S.A. rate of 7.9 per 100,000 persons was five times greater than the

mean rate for European countries of 1.5 per 100,000 persons. By contrast with both

Europe and North America, the Japanese homicide rate was but 0.8 per 100,000 —

one-half that of the European rate and one tenth that of the U.S.A. rate. By the mid

eighties, the U.S.A. rate was twice that of Canada and Finland, the two Western

countries with the next highest rates (16). Clearly, in comparison with European

and other major industrialized nations, the U.S.A. rate is not only the highest but a

statistical outlier.

The suicide rate in the U.S.A., by comparison, has been quite stable over this

same period. For example, it was 11.0 per 100,000 persons in 1950 and 11.7 per

100,000 in 1980, with only minor variation between these rates in the intervening

years. By contrast the homicide rate went from 5.2 in 1960 to a high of 10.5 in

1980 and declined to 8.6 by 1987, the latest year for which comparable figures are

available (17). Preliminary figures for more recent years show some rise again,

though no new peak in the homicide rate has been reached. The U.S.A. has had

then a fairly stable suicide rate with a far more volatile homicide rate. Indeed, the

volatility of the homicide rate is even greater when comparisons are made among

U.S. cities. Cities like Detroit and Washington, D.C. display rates well in excess of

the annual U.S. rate, leading to the media seeking in recent years to designate a

homicide capital of the U.S.A. The volatility for large cities masks its volatility for

smaller ones as well. Some cities under 100,000 population had rates in recent years

in excess of those for the largest major metropolitan cities. It would be far more

difficult to select the suicide capital of the U.S.A. Accounting for the volatile

changes in homicide and the stability of the suicide rate is problematic.

(15) S. Baker, B. O’Neill and R. Karpf, The Injury Fact Book, Lexington books, 1984.

(16) These comparisons are based from World Health Statistics Annual : 1988, World Health

Organization, Geneva.

(17) Vital Statistics of the United States.

MO

Indeed several facts emerge when we compare suicide and homicide rates in

the U.S.A. and across countries. The suicide rate in the U.S.A. always exceeds that

of the homicide rate but given the constancy of the suicide rate, the ratio changes

considerably. Up to 1960, the suicide rate after World War II was twice that of the

homicide rate. In recent years that ratio has declined considerably. Currently there

are about three homicides for every four suicides in the U.S.A.

Cross-national data for suicides present a quite different picture from that for

homicides. See table 1. The suicide rate for both males and females is well above

that for the United States in many European countries. The most recent year for

which data compiled by the World Health Organization for all countries are avail-

able (18) places the U.S.A. male rate at 20.5 per 100,000 males and the female rate

at 5.2. In Table 1 we see that with the exception of Spain, Italy, and Portugal all

Western European countries have rates that are significantly above that of the

U.S.A. for males and females but the differences are especially large for females.

The rate is at least twice as high in these central and north European countries

Austria, Belgium, Denmark, Federal Republic of Germany, Finland, France,

Sweden, and Switzerland. The rate for Japan also is above that for the U.S.A.

Canada, Australia, and Norway have rates roughly comparable with those of the

U.S.A. England and Wales, and Northern Ireland, and Ireland are well below the

U.S.A. rate for males but not females. Among reporting Eastern European countries

(19) Hungary has an exceptionally high rate for both men and women. By contrast,

the south European countries having much lower rates.

Making rough comparisons of countries based on combining their suicide and

homicide rates for a measure of violence in societies (20) one conclusion is ines-

capable. The suicide rate is substantially above the homicide rate in all of the

European countries for which comparisons were made. The rates for the U.S.A. are

the exception with the homicide rate being a statistical outlier and the suicide rate

well is below the median for countries, especially for females. Japan appears to have

the lowest rate of homicide for comparison countries — less than one per 100,000

persons. But, given the fact that its suicide rate is well below that of some European

countries with low homicide rates, the combined ratios of suicides and homicides

are comparable. The combined rate of suicides and homicides in Japan in 1988 was

24.6 for males and 14.4 for females. The comparison rate for Norwegian males, for

example, is roughly comparable at 24.9.

(18) The data published by WHO in 1989 are reported for 1987 or 1988 for most countries.

(19) The German Democratic Republic and Roumania did not report their rates for homicide

and suicide to the WHO.

(20) Although suicide rates vary with age more than homicide rates, age does not account for

much of the difference in country rates of suicide or homicide.

R 1) 14

TABLE 1

HOMICIDE/SUICIDE DEATHS FOR MALES AND FEMALES AGE-SEX-SPECIFIC

RATES PER 100,000 POPULATION IN SELECTED COUNTRIES*

Males

Females

Males

Females

Males

Females

Country

AUL

AU

Country

ACL

AUL

& Year

Country

AUL

AU

Ages

Ages

& Year

Ages

Ages

& Year

Ages

Ages

Canada

Homicide

Homicide

Czechoslo

Norway

Homicide

1.2

1.2

(1987)

Suicide

(1987)

Suicide

slovakia

Total

2

Ë

î

:7'

Ë

Total

2

â

ä

î

î

(1987)

Suicide

27.5

Total

28.7

g.

;

U.s.A.

Homicide

3.

Portugal

Homicide

(1987)

Suicide

0.

(1988)

Suicide

GoR

Homicide

Total

%

3.

â

â

Ë

Total

1

Ê

Ë

Ë

î

(1988)

Suicide

Total

Austria

Homicide

spain

Homicide

(1988)

Suicide

(1985)

Suicide

Hungary

Homicide

Total

äË

ê

!

%

%

Total

%

î

ë

â

(1988)

suicide

Total

‘

ë

î

2

%

Ë

Belgium

Homicide

sweden

Homicide

(1986)

Suicide

(1987)

Suicide

Poland

Homicide

Total

;

Ë

Ë

1

Ê

î

Total

2

%

Ë

1

Ë

â

(1988)

Suicide

Total

2

Ë

Ê

£

Ë

Denmark

Homicide

Switzerland

Homicide

(1987)

Suicide

(1988)

Suicide

Yugoslovia

Homicide

Total

;

%

i

2

%

ë

Total

;

%

â

:

1%

Ê

(1987)

Suicide

Total

à

â

ê

'

%

Ë

Finland

Homicide

UsSsR

Homicide

(1987)

Suicide

(1987)

Suicide

United

Homicide

1.4

0.

Total

Ë

É

ï

î

Total

;

ê

Ë

â

â

Kingdom

B00 24

(1988)

Suicide

13.0

France

Homicide

Iceland

Homicide

Total

144

s

2

(1987)

Suicide

(1987)

Suicide

Total

;

î

î

!

â

â

Total

H

î

%

%

Homicide

England &

0.7

0.

Wales

(FRG)

Homicide

Australia

Homicide

(1988)

Suicide

12.5

(1988)

Suicide

(1987)

Suicide

Total

13.2

:

5

Total

2

â

%

!

%

%

Total

2

Î

Ë

â

î

Northern

Homicide

11.9

Italy

Homicide

.05

Japan

Homicide

0.7

1reland

(1986)

Suicide

4

(1988)

Suicide

3.

(1988)

Suicide

15.6

Total

:

î

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5.

2

Total

%

ê

14

A

Total

7.5

ë

°

Luxembourg

Homicide

Korea

Homicide

Scotland

Homicide

(1988)

Suicide

5

(1987)

Suicide

(1988)

Suicide

Total

2

9.

ê

î

Total

!

â

â

Ë

î7

Total

2

î

î

ê

â

Netherlands

Homicide

Bulgaria

Homicide

Suicide

(1987)

(1987)

Suicide

Total

1

â

Ê

;°

£

Total

2

È

É

â

â

*source:

World Health Sta

tistics Annual: 1989; World Health Organization, Geneva 1989.

Table II.

Table Notes.

%

The year is the latest for vhich the country reported to WHO.

The ratios of homicide to suicide vary considerably among countries. For every

male that is a homicide in Austria, for example, at least 26 commit suicide. By

comparison for every male homicide in the U.S.A., there is less than one suicide (0.6).

One other comparison may be worth making. If we combine the suicide and

homicide rates for countries, the U.S.À. rate in many country comparisons is not all that

different for males. For example, in 1987 the combined suicide-homicide rate for males

was 33.6. The combined suicide-homicide rates were higher than in the U.S.A. for males

in Austria (38.0), Denmark (37.2), and Finland (48.2), and roughly the same for Switz-

erland (33.9), Belgium (33.2), France (33.1). The combined rates for females show a

rather different picture. The combined rate for the U.S.A. in 1986 for females was 9.4.

The combined rates for women in Austria, Belgium, Denmark, Finland, France, Federal

Republic of Germany, Luxembourg, Sweden, Switzerland, and Japan exceeded that for

women in the U.S.A. Again, it is worth noting this is almost entirely due to the fact that

women in these countries are far more likely to kill themselves than to be killed. Quite

compelling, however, is the fact that the female rates for England and Wales (5.2),

Northern Ireland (6.0), Australia (7.3), Canada (7.7), Italy (5.2), Portugal (4.4), Spain

(3.9) and Korea (5.1) are lower then in the U.S.A., other European countries, and Japan.

Might we tentatively conclude from this that when western countries have a low

homicide rate, they are quite likely to have a considerably higher suicide rate.

Whether or not these western countries can have comparable declines in their suicide

rates is unclear. This pattern would seem to deserve exploration. A number of

possible explanations readily come to mind. One is that interpersonal homicide rates

are far more subject to macrosocial control than are personal suicide rates. À second

is that most societies have made a greater effort to control interpersonal than personal

violence in their society. À third, and one that has often appealed on theoretical

grounds, is that a substantial part of the differences in these rates can be accounted

for by differences in the ways societies structure the internal and external controls of

their members and of the conditions that lead to the internalization and externalization

of aggression and violence. Given the relative constancy of the suicide rate in the

U.S.A. and the substantial fluctuation of the homicide rate, it seems unlikely that

individual level internalization-externalization theories could account for short term

fluctuations in the homicide rate. We will, therefore, have to look more to either the

conditions that lead to externalization of violence and aggression or to changes in

conditions that engender certain types of violence, including its outcome as homicide.

Recall that one of our initial questions concerned how violent are different

societies? Now we certainly can see that we must give different answers to this

question when comparing the suicide rather than the homicide rates of countries.

Moreover, a somewhat different answer may need to be given when we look at their

combined suicide and homicide rates. It might seem to follow that the strategies of

intervention will differ when we are considering how to reduce violent behavior

towards the self as compared with reducing violence towards others. There will be

differences in the costs of each to society, as well. Perhaps even the injury costs to

society of attempted suicides may exceed those of assaults against the person. How then

can we bring down suicide as well as homicide rates ? Can we continue to assume that

suicide is a public health problem and homicide a matter for criminal justice ?

=

ETHNIC COMPOSITION OF SUICIDE AND

HOMICIDE RATES IN THE USS.A.

One of the most salient features of violent crime in the United States are the

differences in the risk of homicide ans suicide according to one’s ethnic and sex

status. In the U.S.A. as in almost all countries, women are far less at risk of death

by homicide and suicide than are men. For the recorded history of statistics on

deaths in the U.S.A., African Americans have been at far greater risk of homicide

than white Americans. Somewhat surprising perhaps is the fact that their risk of

suicide is below that of whites. Consider, for example, that for the year 1987 the

homicide rate for African Americans was about 66 per 100,000 persons as com-

pared with less than 11 for whites whereas the suicide rate for African Americans

was 14 per 100,000 African Americans as compared with 25 for white Americans.

An even more striking pattern emerges, however, when we considerer their

variation by sex status as well. African American men in 1987 had a homicide rate

of 54 for every 100,000. The next highest rate was 12 for African American women,

followed by a rate of less than eight for white American men and three for white

American women. These rankings give rise to some interesting comparisons. In

simple terms, African American men were seven times more at risk of being a

homicide victim than were white American men and African American women

more than four times more likely to be a homicide victim than white American

women. What is particularly striking, however, is that African American men are

at a much greater risk of death by homicide than are the others.

The pattern is quite different for suicide. The risk of white American men

committing suicide is twice that of being a victim of a homicide whereas an African

American male has a four and one-half times greater chance of being killed in a

homicide than of killing himself. The disproportions are striking also for women,

with an African American woman about six times as likely to be a victim of

homicide as to kill herself whereas a white American woman was somewhat less

than twice as likely to kill herself as to be a victim of a homicide.

Another way of emphasizing these differences in homicide and suicide mortal-

ity by the structural position of African American and white American men and

women is to compare the potential years of life lost due to homicide and suicide.

African-Americans have significantly higher premature mortality due to homicide.

The years of potential life lost is 7.3 times greater for African American than white

American males and 4.6 times greater for African American than white American

females. These comparisons also emphasize the fact that homicides occur at

younger ages for African Americans and particularly so for young males. Correla-

tively, whites have significantly higher premature mortality due to suicide, though

the ratios are smaller than for homicide. The potential years of life lost from suicide

is one and a half times greater for white American than African American males

but twice as great for white American as African American females. African Amer-

ican women lose less than a year of life per 1,000 women under 65 years of age to

suicide.

2 952e

What it noteworthy, then, in these U.S.A. comparisons are the substantial

differences in which persons of different ethnic status and sex are at risk of death

by violent means. Particularly noteworthy is the substantially shortening of life of

African American males due to homicide. The substantial surprise in these compari-

sons, however, is the low suicide rates of African American women — a suicide

mortality rate that is exceptionally low for women in modern nation states. This

surprising variability casts doubt upon simple explanation of the causes of violent

behavior both within and among societies.

UNDERSTANDING THESE DIFFERENCES

Perhaps it is mistaken to attempt to account for both variation by structural

position within societies or variation among societies if one assumes that neither

homicide nor suicide is a homogeneous form of behavior. There is said to be

considerable country variation in the sources of suicide with far more of the suicide

in Japan arising from a sense of status dishonor than in most other countries.

Homicide is quite heterogenous and some of the variation in homicide rates

over time can be attributed to changes in the society affecting a given kind of

homicide. For example, in the U.S.A., there is a secular decline in the homicides

attributable to close intimates, especially homicides among family members or co-

habitants and a substantial increase in drug related homicides, particularly those

associated with the illegal marketing of drugs. These is turn are seemingly related

to substantial changes in the society. The decline in family related homicides, for

example, seems to the related to the more rapid dissolution of families by separation

and divorce, thereby reducing the probability of violent family conflict which lead

to homicidal assaults.

Similarly, an explanation for the growth in African-American male homicides

can be found in the substantial increase in drug related homicides among African-

Americans, especially those relating to the illegal marketing of drugs. Put in quite

simple terms, the drugs market is disproportionally confined to minority communi-

ties, especially black communities. There is no stable organized crime structure that

controls those markets, hence there is considerable competition for these illegal

markets which are territorially organized and controlled by armed gangs. Increas-

ingly youth gangs participate in the organization and control of such markets. The

increase in homicides among youths seems accounted for by such gangs of armed

youth. Nevertheless, it is unclear how many of these deaths may be attributed to

the growing availability of the more dangerous firearms. The increased availability

and use of Uzzis, assault rifles, and similar high caliber weapons means that death

is a more likely consequence in such conflict.

Perhaps one of the more compelling explanations for at least some of the

differences among societies and for explaining differences within American society

is the availability of firearms, especially handguns. U.S. society has relatively weak

controls over the sale and possession of handguns. Although we lack national data

tagees

on the use of handguns in homicides by African Americans and white Americans,

data for cities with high homicide rates for African-Americans discloses that a high

percentage of all homicides involve the use of handguns. À 1986 survey of African

American homicide offenders in major urban areas (21) disclosed that in six cities

where individual homicide records were surveyed, guns of all types represented the

most frequently used homicide weapon for black offenders, ranging from a high of

88 percent of all homicides with known offenders in Atlanta to a low of 76 percent

in Detroit and Pittsburgh.

The differential availability of means of violence such as handguns does not

appear to explain variation in the suicide rate, however, although as Ronald Clarke

and David Lester (22) have demonstrated, the suicide rate also seems subject to

availability of means. The suicide rate in England, for example, showed substantial

declines with the detoxification of natural gas — though the availability of substi-

tutes apparently accounts for lesser declines in Scotland, the Netherlands, and the

U.S.A.

À structural explanation that is frequently offered to account for some of these

differences both within and across countries is the structure of class inequality in

the society. The greater the inequality the greater the expression of violence (23).

The targets of violence are class linked however with those at the bottom of the

class structure turning their frustration and aggression towards one another, hence

the high homicide rates, and those at the top turning aggression against themselves,

and hence their high suicide rates. Success in the reduction of inequality, however,

does not seem to have the same effect on suicide as on homicide with the latter

seemingly more amenable to changes in resource inequality. Perhaps this is because

the welfare oriented societies of Europe have had their greatest effect on raising the

minimum standard of living while still supporting substantial class inequality. Yet

there are so many exceptions to such generalities that much doubt is cast upon it.

For example, some of the lowest homicide and suicide rates are found in Muslim

countries and suicide is generally higher in Protestant than Catholic countries. Such

differences generate speculations about the role of culture in suicide and homicide

based on Durkheim’s theory about suicide (24).

(21) Harold M. Rose and Donald R. Deskins, Jr, “Handguns and Homicide in Urban Black

Communities : À Spatial-Temporal Assessment of Environmental Scale Differences”, pp. 69-

100 in Darnell F. Hawkins (ed.), Homicide Among Black Americans, University Press of

America, 1986.

(22) Ronald V. Clarke and David Lester, Suicide : Closing the Exits, Springer-Verlag, 1988.

(23) Lester finds that the Gross National Product of Countries is related only to the homicide

rate. Female social equality is related only to higher suicide rates. David Lester, “National

Suicide and Homicide Rates

Correlates Versus Predicters”, Social Science Medicine, 29

(1989) : 1249-1252.

(24) Emile Durkheim, Suicide, Free Press, 1986.

L e

If one is interested in reducing the rates of suicide or homicide in countries, then

we need to look at more closely at where and how we can intervene to reduce both

homicide and suicide rates. As noted earlier, Clarke has shown that suicide is susceptible

to reduction by control of the means of committing suicide. Similarly, there is some

evidence that control of weapons can reduce homicide rates from firearms.

But reduction of such rates by controlling means raises two important ques-

tions. Are there ready substitutes? And, what is the possibility for controlling the

rise and development of illegal markets that provide the means of violence ? The

prospects for reduction in homicides from either of these sources are limited in the

United States for banning or controlling the sale and possession of handguns. Poten-

tially, one could reduce the death rate from homicide by at least one-half if one

could ban the sale of handguns. Yet, even were handguns to be banned tomorrow,

the marginal effect of doing so on the homicide rate may be considerably less than

that. There are three reasons for expecting this to be the case.

The first has to do with question of substitute means in assaults. One study in

Harlem is relevant to the question of substitute means (25). It found that pre-med-

itated crimes that fit a rational actor model were most likely to involve the use of

handguns while what were regarded as spontaneous or situational crimes were far

less likely to involve handguns. They were committed with whatever physical

means were at hand or with the sheer use of body strength. Women were more

likely to be victims in such crimes and especially where the homicide was the

outcome of a situational domestic conflict or where males became involved in

arguments in places where alcohol is sold and consumed. We might expect far less

reduction for such assaults if guns are banned.

The second reason is that about one-half of the U.S. population is in possession

of one or more firearms. The proportion with handguns is less. Short of a successful

amnesty, these will remain in the population for some years. The banning of sales,

moreover, Will only increase their illegal market value and make them more prized

for theft in household burglary. One would expect these to be sold in markets for

use in robberies where the effect in reducing felony murder could be small unless

it correlatively reduced the armed robbery rate — a matter for conjecture. They

likewise will have a greater market value for the more rationally motivated violent

homicides. The effect of banning the importation, manufacture, and sale of guns

will be to increase their scarcity and drive up their price in an illegal market.

The third reason seems to be equally important for an illegal demand for guns.

An illegal market will arise for guns that are manufactured outside the continental

United States. Historically, the U.S.A. has been unable to staunch the flow from

such illegal sources, whether it be for drugs or explosives. And, indeed, the U.S.A.

has perhaps an even poorer record in controlling their distribution and sale within

the country.

(25) Arthur J. Swersey, “A Greater Intent to Kill : The Changing Pattern of Homicide in

Harlem and New York City”, Yale University School of Organization and Management, 1980.

If these scenarios are reasonably correct, then we might expect little effect in

the short run from banning gun manufacture and sales and we would have to depend

primarily upon long run effects. Long run effects might be expected to flow in-

directly from any drop in demand from the essentially law-abiding population which

then makes fewer available for burglary, etc. In any case, the reduction of the supply

in homes should have some effect on the burglary resale market for illegal guns.

CONCLUSION

The purpose of this paper has been to raise some questions about how violent

are societies with a view to raising the question of how can we better explain the

variation in rates that are observed. Although there is substantial variation in suicide

and homicide rates among countries, the variation in their combined violence rates

is much less on the average. Although we have speculated on some of the possible

causes for cross-national variation, it is clear that we as yet understand rather poorly

why societies vary in their suicide and homicide rates and more especially, why in

general those rates vary inversely so that countries look more similar in their com-

bined suicide-homicide rates than they do in either suicide or homicide rates.

A special problem in explaining U.S. rates is why the homicide rate is much

greater than the suicide rate. The patterns of variation within the U.S.A. are also

difficult to explain, especially the very low suicide rate of African-American

women.

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Preventing violence : the work of

the National Committee on Violence

Duncan CHAPPELL* and Heather STRANG**

INTRODUCTION

The initial European settlement of Australia two hundred years ago was accom-

panied by violence on an horrific scale. The very reason for the colony’s establish-

ment was to rid British gaols of excessive numbers of convicted felons. Their

treatment after arrival in Australia was marked by extreme brutality (Hughes, 1987).

The scale of the suffering of Aborigines at the hands of European settlers has been

extensively documented (Reynolds, 1982), and the legacy of that persecution re-

mains with Australians today.

Despite its brutal history, Australia today is a relatively tranquil place.

Nevertheless, there have in recent times been good reasons for Australians to feel

increasingly threatened by violence, both at home and abroad.

The killings in the Netherlands in 1990 of two young Australians by IRA

gunmen, for example, was grievously shocking to us, and brought home the reality

of international terror. By comparison with some other parts of the world, Australia

is relatively free of such violence, though we too have experienced horrific in-

dividual incidents in recent times.

In 1987, there occurred in Melbourne two mass killings, which resulted in the

deaths of sixteen people and serious injury to many more. Australians were appalled

at these events, which represented a nightmarish manifestation of a growing level

of alarm about violence in our society.

In a country with a long liberal democratic tradition, increasingly Australians

have expressed unease with what has been perceived as a grave risk of random

violence. Actual risk rates for becoming a victim of such crime are not high, but

nonetheless a general perception is abroad that using public places and public trans-

port, for example, is unsafe, and that as a consequence quality of life has

diminished. In addition, Australians have increasingly been made aware of the

* Director, Australian Institute of Criminology, Canberra, and Chair of the National Commit-

tee on Violence.

** Executive Research Officer, Australian Institute of Criminology, Canberra, and Research

Officer of the National Committee on Violence.

cPS

shadow of family violence which had for so long been ignored, not only in Australia

but all over the world.

NATIONAL COMMITTEE ON VIOLENCE

In this climate of anxiety about the level of violence in the community, a

meeting at the end of 1987 between the Prime Minister of the Commonwealth of

Australia and Heads of all Australian State and Territory governments, agreed to

the establishment of a National Committee on Violence.

This Committee has much in common with similar enquiries which have re-

cently been carried out in two other countries. In the Federal Republic of Germany,

the Anti-Violence Commission, chaired by Professor Dr Hans-Dieter Schwind of

Ruhr University, Bochum, reported in May 1990, while in the United States, the

US National Academy of Sciences Panel on the Understanding and Control of

Violent Behaviour, chaired by Professor Albert Reiss of Yale University, is due to

report in 1991.

The range of issues which the Australian Committee was asked to address was

set out in its Terms of Reference (see Appendix 1). In brief, it was asked to examine

the level of violence in Australia, to review explanations for violent behaviour, and

to make recommendations for the control and prevention of violence.

Noted authorities with expertise in various areas of the Terms of Reference

were appointed as members of this Committee. The secretariat for the Committee

was located within the AIC, as it was able to provide a range of services deriving

from its position as the centre of cooperation between Australian jurisdictions in the

area of criminological and criminal justice research.

The Committee was required to report by the end of 1989. During its relatively

brief lifespan, it generated a considerable volume of material on various aspects of

violence (for a complete list of its publications, see Appendix 2). In its final report,

entitled Violence : Directions for Australia, which was published in February, 1990,

the Committee set out in detail its response to the issues raised in its Terms of

Reference.

Although we are conscious that this Report was designed to confront and to

respond to specifically Australian circumstances, we are convinced that many of the

problems relating to violence in our community are shared with other parts of the

world. Indeed, in its lifetime, the Committee became familiar with much that has

been written elsewhere about violence — written because of the commonality of

concern about this deeply troubling problem.

We believe, therefore, that many of the findings of the National Committee on

Violence can be generalised to other countries. Even more importantly, we believe

that many of its recommendations for the control and prevention of violent be-

haviour can be adopted elsewhere as models for action.

D u

INCIDENCE OF VIOLENCE

Violent behaviour is found universally. However, some nations are more vi-

olent than others; some places are more violent than others; some individuals are

more likely to commit acts of violence than others.

Levels of violence vary from country to country, but similar problems are

found everywhere in the measurement of violence. Most countries experience dif-

ficulties with police records, and Australia is no exception to this. In addition, police

statistics reflect the crimes reported to, or detected by, the police and therefore cover

only part of the total number of offences actually committed.

Most countries also experience problems in measuring particular categories of

crime — especially sexual assault and family violence. Almost everywhere, cultural

reasons prevent the ready reporting of these offences : and in those countries where,

in recent years, victims of such crime have been encouraged to report to the police,

it is sometimes unclear whether the increased rate of reporting indicates a true

increase in incidence or, instead, an increasing willingness to report. In either case,

Australia is not alone in finding that much violence in the community is found in

the home rather than on the street.

Because of the universal nature of problems with official crime figures, the

Third United Nations Crime Survey (Crime and Justice in Asia and the Pacific,

1990) recommended that sources other than official crime figures should be sought

in order to estimate the true level and nature of crime in a society. In particular it

recommends that crime victim surveys should be conducted at regular intervals,

with assistance from the United Nations, because of their particular value in design-

ing crime control and crime prevention policies. These observations are true for all

regions of the world, and for both developed and developing nations.

CAUSES OF VIOLENCE

The Committee reviewed available literature concerning the causes of violence,

and examined a number of theories and facts which sought to explain such be-

haviour. It found the reality of violence is complex and usually the consequence of

the interaction of a number of contributing factors. The most important of these

factors were judged to be :

— The influence of the immediate family in which a child grows up. It is within

the family that aggressive behaviours are first learned; to the extent that families

fail to instil non-violent values in their children, those children are more likely to

respond with violence in negotiating life as adults.

— Norms of behaviour. To the extent that a society values violence, attaches

prestige to violent conduct, or defines violence as normal or legitimate or functional

behaviour, the values of individuals within that society will develop accordingly.

eU / 40

— Economic inequality. Violence is more common in those societies characte-

rised by widespread poverty and inequality. In addition, both victims of violence

and violent offenders tend to be drawn from the most disadvantaged sectors of

society.

The Committee recognised the importance of a number of other factors as well.

These included problems associated with cultural disintegration, attitudes of gender

inequality, certain biological and personality factors, abuse of drugs, particularly

alcohol, some forms of mental illness, and the influence of the media and peers.

Essentially, it was the view of the Committee that the experiences of childhood

and the influence of the family are paramount in determining whether or not an

individual becomes violent in his or her behaviour. While biological and personality

factors may predispose individuals to violence, strong evidence suggests that in

almost every case a loving and secure environment can overcome such predisposi-

tions. Likewise, alcohol, the media and peer pressure may all exert their influence,

but what children observe and learn in their homes — what they come to recognise

as norms of behaviour — will largely determine their reaction to these influences.

Of course, each child lives within a larger culture where factors such as

economic and gender inequality may be realities they have to cope with on an

individual basis as adults, and which may be sources of disillusion and frustration.

Nevertheless, what is learned in the process of socialisation within the family can

be both protection and a source of strength in coming to terms with or even altering

these realities.

RECOMMENDATIONS FOR THE CONTROL

AND PREVENTION OF VIOLENCE

The Committee found that the complexity of violence is such, and its causes

so numerous, that it is important to resist the temptation to rely upon simplistic

solutions. It is important also to remember that the control and prevention of vi-

olence is everyone’s business — not just the responsibility of government instru-

mentalities.

The Committee was strongly of the view that in dealing with violence, greater

emphasis is needed on preventive programs to supplement various forms of control.

It also concluded that an adequate preventive strategy requires the cooperation of

many different agencies.

A comprehensive formulation of anti-violence strategies must encompass pro-

grams which are the responsibility of a number of government agencies, such as

education, health and welfare, employment, public housing, public transport, the

police and the courts. This is because the issues which must be addressed cut across

a number of agencies : such issues include family violence, family support, alcohol

uA 258

and drug abuse, the control of firearms, support for victims, the special problems

of minority groups, as well as research and information collection.

In framing its recommendations, the Committee identified three major objec-

tives :

— Because the degree to which violence is condoned in any society is a fun-

damental impediment to achieving non-violence, it was considered that govern-

ments should take the initiative in promoting non-violent attitudes. This could, for

example, take the form of a national media campaign.

— Factors which aggravate the risk and extent of violence, such as the con-

sumption of alcohol and the availability of firearms, should be examined and, where

possible, measures should be taken to mitigate their effects.

— An improvement in the availability of accurate information about the extent

and nature of violence is essential both for the provision of a proper basis for

decision-making, and to permit a realistic appreciation of the level of violence in

society.

The Committee made a number of specific recommendations for the prevention

and control of violence, many of which are summarised below. For greater detail,

readers are referred to the Committee’s report, Violence : Directions for Australia.

Health and Welfare

— AlII health service providers, including hospitals, should develop specific

procedures for the identification and treatment of victims of violence, especially

domestic violence, sexual assault and child abuse; attention should be given to the

special needs of minority groups and people with disabilities.

— Institutions which provide education and training for health and welfare

personnel should offer training in the recognition, treatment and management of

victims of violence, especially domestic assault, sexual assault and child abuse.

Issues relating to gender inequity and its implications in relation to violence, should

be included in this training.

— À national campaign for the prevention of child abuse should be conducted,

and a national research centre on child abuse established.

— Governments should sign and ratify the United Nations Convention on the

Rights of the Child.

— Health authorities should investigate the feasibility of perinatal screening for

child abuse risk.

— Education for parenthood should be incorporated in hospitals as part of

classes associated with childbirth : it should continue after birth and post-natal

support services made available locally.

— Respite care should be available parents and a crisis telephone line be set up

for parents to call for support and advice in dealing with children.

R AS E e

— Counselling programs for violent men should be encouraged.

— Governments should provide 24-hour crisis intervention services, which can

provide immediate support and information for victims of violence.

— Governments should ensure that safeguards exist to protect institutionalised

persons with intellectual disabilities from abuse; adequate support services must be

available for these individuals and their carers in the community.

— Governments should assess the impact of any policy of deinstitutionalisation

of the mentally ill, and ensure that appropriate community support is available to

reduce the risk of their becoming victims or perpetrators of violence.

— The consumption of alcohol should be reduced by requiring health warnings

on all alcoholic beverage containers, prohibiting electronic advertising, and en-

couraging, through price differential, the consumption of low alcohol rather than

high alcohol beer.

Education

— Education authorities should include conflict resolution strategies as an inte-

gral part of school and other educational curricula; teacher training institutions

should incorporate into their curricula materials relating to non-violent conflict res-

olution, including an analysis of the gender basis of patterns of violence.

— Corporal punishment should be prohibited in all schools, and educational

authorities should develop instead constructive, non-violent means of social control.

— Programs should be introduced into school curricula for instruction in human

relationships, including proper gender roles, parent responsabilities and child develop-

ment; information should be available on non-violent means of disciplining children.

— Training in the recognition of child abuse should be an integral part of the

teacher training curriculum.

— AII school students should be provided with information about what consti-

tutes abuse, the importance of telling someone when abuse occurs, and appropriate

individuals in whom they might confide.

— Medical education should include components dealing with all aspects of

violence. There should be special emphasis on the care of victims, the prevention

of violent behaviour and the treatment of violent persons.

— Governments should develop preschool enrichment programs, particularly for

disadvantaged children, which should extend to assistance to parents of these children.

Employment

— Governments should emphasise job-skills training programs for the long-

term young unemployed. Residential programs should also be encouraged for par-

ticularly disadvantaged young people.

— 06e

— Accessibility of employment training programs to young women should be

particularly encouraged as an important means of bringing about a reduction in

violence against women, by encouraging their financial independence.

Housing

— Governments must ensure that victims of domestic assault are never denied

alternative shelter, and that they are given priority in the allocation of emergency

and low-cost accommodation.

— Governments must ensure that homeless children are given adequate access

to accommodation.

— Attention must be given to considerations relating to the reduction and pre-

vention of violence in the design of public housing.

Public Transport

— Transport authorities should exercise care in the design and maintenance of

their facilities, with a view toward crime prevention. They should also include and

publicise a clearly stated violence prevention strategy in their transport plans.

Sport and Recreation

— Sporting authorities should refer cases of criminal assault on the playing field

to law enforcement agencies for prosecution.

— Programs should be developed which provide a variety of high standard

alcohol-free recreation and entertainment activities for young people, planned in

consultation with the intended users.

Indigenous People and Minority Groups

— Governments should promote appreciation of the social and cultural tradi-

tions of its minorities and indigenous peoples, so that all may take pride in the

richness of these traditions.

— Special programs should be developed to deal with issues such as alcohol

abuse and health problems, which may be a consequence of their disadvantaged

status and associated with violent behaviour within such communities.

ns dA/ s

Criminal Law, Evidence and Procedure

— Governments should take action to minimise death and injury arising from

the use of firearms by reducing the number of firearms in the community and by

preventing access to such weapons by individuals who are not fit and proper per-

sons, such as those who have been convicted of a crime or have demonstrated a

propensity for violence.

— Victim impact statements, which disclose the physical, psychological and

financial effects of a crime on the victim, should be available for consideration by

courts in formulating an appropriate sentence for the offender.

— Governments should embrace the principles of justice and fair treatment for

victims as set out in the United Nations Declaration on the Rights of Victims.

— Domestic violence legislation should be developed which contain the follow-

ing features :

« powers for police to enter premises to deal with domestic violence incidents ;

e applicability to partners from de facto and past relationships ;

e provision for restraint orders, to limit a defendant’s access to the family home, to

be issued on application of the police as well as the victim ;

« provision for offenders to be taken into custody where there is reasonable belief

that the spouse or a child of the house would otherwise be in danger.

Police

— Domestic violence should be targeted for police skills training.

— Where there is sufficient evidence of criminal assault in the home, police

should lay charges.

— Police should seize any firearms or other weapons which are present at the

scene of a domestic assault.

— Police should adopt formal guidelines for the questioning of youth, and be

trained in non-punitive options for dealing with young offenders.

— In association with other agencies, police should develop fear reduction pro-

grams by experimenting with such strategies as alternative patrol techniques and

public information campaigns.

— Interviews by police should be video recorded.

— Police training should refer to problems arising from cultural conflicts. It

should aim to improve understanding about minority groups within the broader

community, and members of such minorities should be encouraged to join police

forces.

— Police dealing with child abuse should receive training in child development,

in issues relating to disabled children and in special forensic issues. Special attention

should be given to methods of investigating allegations of child sexual abuse. This

08

should include close liaison between police and other workers in this field and the

provision of training in interviewing techniques.

— Laws governing the lethal use of force by police should reflect the principal

that such force should only be used as a last resort, involving self defence or the

defence of others; police must receive adequate training in the use of arms.

Courts

— Counselling and support services should be available for victims and wit-

nesses attending court.

— In the case of child witnesses, modifications to the courtroom environment,

such as video-links and screens, should be made to reduce the stress and trauma

likely to be experienced, and to enhance the accuracy and reliability of a child

witness’ testimony.

— Judicial officers and other legal personnel should have access to continuing

education in matters relating to victims of violence generally, and victims of domes-

tic violence, sexual assault and child abuse in particular.

— Alternative dispute settlement services, outside the mainstream judicial sys-

tem, should be provided wherever possible for the resolution of personal disputes.

Prisons and Corrections

— Correctional agencies should continue to develop programs for the rehabili-

tation of offenders, and should subject these programs to rigorous evaluation.

— More support should be provided for ex-prisoners subsequent to their release

from custody.

Regulatory Authorities

— Consumer affairs authorities should ban “victim toys”.

— Media regulatory authorities should provide detailed classification and pro-

gram description to enable viewers to make informed choices about programs, and

to ensure that proper responsibility can be exercised regarding children’s viewing.

— Children must be protected from consuming and participating in the produc-

tion of erotic materials, violent or otherwise.

— Liquor licensing authorities should consider the social consequences of their

decisions regarding the issuing of licences, in order to minimise the adverse impact

of alcohol.

— Conformity with server intervention programs should be a condition of

liquor licence renewal. Such programs should include guidelines for the training and

conduct of security personnel employed by proprietors of licensed premises.

8 AOV

Information and Research Agencies

— Inadequate knowledge about the incidence and epidemiology of violence

precludes accurate assessments being made of the costs of violence, and other

information needed for the formulation of a rational public policy response to vi-

olence. It is therefore necessary for national crime surveys to be conducted regu-

larly. Such surveys should devote special efforts to identifying the incidence and

prevalence of violence against minority groups.

— Applied research on violence would yield considerable benefits, and requires

adequate funding.

Media Organisations

— Media organisations should develop a code of conduct aimed at reducing

gratuitous intrusions upon victims’ and alleged offenders”’ privacy and dignity,

avoiding glorification of violence and avoiding portrayals which may encourage the

commission of similar offences.

— Media coverage of sporting events should avoid the gratuitous re-play of

violent incidents; commentators should forcefully condemn violence in sporting

events whenever it occurs.

— The media generally and the television industry in particular should demon-

strate a commitment to programming which promotes pro-social and non-violent

values.

Religious Organisations

— Religions organisations should continue to foster non-violent values by en-

couraging the peaceful resolution of conflict and by denouncing violence whenever

it occurs.

— Religious organisations should review their training curricula to ensure that

the counselling they provide is consistent with current professional practice relating

to child abuse and domestic violence.

In making its recommendations, the Committee has also made the following

observations :

— The fact that the bulk of its recommendations dwells on the recommenda-

tions of government and non-government organisations should in no way be read

as absolving individuals of responsibility for the prevention and control of violence,

and for assisting the victims of violence.

— That as a matter of principle, priority amongst its recommendations for ac-

tion should be given to those programs which, in addition to their efficiency and

effectiveness in the prevention and control of violence, whould produce other

economic and social benefits.

— That policies or programs to combat violence which might constrain freedom

or curtail liberty, should be framed as narrowly as possible in order to minimise this

possibility.

— That the focus of preventive strategies should be those members of society

at greatest risk. In common with many other countries, Australia’s high risk groups

were found to be young children, young adult males and women who are victims

of violence in the home.

— That in circumstances of fiscal restraint which require that particular atten-

tion be paid to effective allocation of public sector resources, attention should be

given to provision within programs and policies for rigorous, independent evalua-

tion of their effectiveness.

— Notwithstanding the need for circumspection in the allocation of resources,

it is vital for governments to realise that violence is enormously costly, in both

financial and human terms. Given the financial burden imposed by current levels

of violence, governments are faced with a stark and simple choice — either to pay

now and make society less violent; or to pay later and suffer not only the direct

costs of violence, but also the deterioration in the quality of life which the aftermath

of violence imposes on us all.

REFERENCES

HuGHESs, R., The Fatal Shore : A History of the Transportation of Convicts to Australia.

Collins Harvill, London, 1987.

ReyNouDs, H., The Other Side of the Frontier : Aboriginal Resistance to the European Inva-

sion of Australia. Penguin Books, Ringwood, Vic, 1982.

United Nations, Crime and Justice in Asia and the Pacific. A Report on the Third United

Nations Survey of Crime Trends, Operations of Criminal Justice Systems and Crime

Prevention Strategies, 1980-1986. Tokyo and Canberra, 1990.

241e

APPENDIX 1 : NATIONAL COMMITTEE

ON VIOLENCE TERMS OF REFERENCE

The Committee’s Terms of Reference required it to examine the following

issues :

=

the contemporary state of violent crime in Australia;

—

related social, economic, psychological and environmental aspects;

e

gender issues in violence;

the impact of the mass media on the incidence of violence ;

the effects of drugs and alcohol on violent behaviour;

attitudes to violence amongst children and adolescents ;

the vulnerability to violence of particular groups ;

the development of strategies to prevent violence;

the need for support and assistance for victims of violence; and

the need for special measures in the treatment of violent offenders.

APPENDIX 2 : COMPLETE LIST OF NATIONAL

COMMITTEE ON VIOLENCE PUBLICATIONS

In its Violence Today series, the following titles appeared :

No

Violence, Crime and Australian Society

No

Domestic Violence

No

Violence Against Children

No

Violence in Sport

No

Violence and Public Contact Workers

No

Violence on Television

No

Violence, Disputes and their Resolution

No

Racist Violence

No

D %0UHO ULSRE UN

Political Violence in Australia

In its series of monographs, particular issues relating to violence were dis-

cussed in more extensive detail :

Monograph No. 1 : Violence in Australia, which raises some key issues and

summarises facts about violence in contemporary Australian society.

Monograph No. 2 : by Peter Grabosky, Victims of Violence, which describes

the vulnerability to violence of particular groups, and the need for support and

assistance for victims.

Monograph No. 3 : by Peter Grabosky and William Lucas, Society's Response

to the Violent Offender, which discusses the need for special measures in the treat-

ment of violent offenders, and reviews the basic issues which must be considered

by authorities in behalf of society in response to an act of violence.

Violence : Directions for Australia, Final Report of the National Commiittee on

Violence.

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Juvenile delinquency and juvenile

justice in Japan

Prof. Dr. h.c. mult. Koichi MIYAZAWA

Keio University, Faculty of Law, Tokyo

Dr. Schura Euller Cook

Visiting Researcher Keio University, Faculty of Law, Tokyo

INTRODUCTION

The criminal justice community has wondered for a long time, why Japan, in

spite of rapid industrialisation and modernisation, has maintained such a high degree

of social stability, also expressed in relatively low crime rates. Juvenile delinquency

is no exception, and in spite of an increase in certain crime categories, juvenile

delinquency is considered by experts both qualitatively and quantitatively less seri-

ous in Japan than in many other countries.

In explaining the low crime rate, one can point to a number of socio-economic,

cultural and criminal justice factors. Especially the high awareness for the structur-

ing of social relations to achieve harmonious, non-aggressive social interactions

have to be pointed out. The learning of non-aggressive behavior patterns is gener-

ally encouraged by parental attitudes and reinforced in the social institutions, like

the school, where blending into a group and renouncing personal idiosyncrasies are

considered more virtuous character traits than self-assertive, individualistic be-

havior.

Combining traditional Eastern ethics with the priorities of a modern industrial

state have not only proved successful in creating a highly competitive economy, but

also in avoiding some of the serious social shortcomings of other industrial and

developing nations plagued with inefficiencies and high crime rates.

GENERAL DEFINITIONS

For a better understanding of juvenile delinquency within the Japanese criminal

justice context, a definition of juvenile delinquency might be helpful. Under the

Juvenile Law of 1948, juveniles who have committed either crimes or acts closely

associated with crimes fall within the three following categories :

1. Juvenile Offenders : Juvenile from 14 to 19 years, who have committed an

offence.

2. Law-Breaking Children : Juveniles under the age of 14 who have violated

a penal statute or ordinance.

3. Pre-Delinquent Juveniles : Juveniles who commit habitual disobedience to

the reasonable commands of parents or guardians or a repeated absence from their

home without justifiable reasons and are likely to commit an offence or violate a

penal statute or ordinance in the future, taking into account their charakter and social

environment.

STATISTICAL TRENDS

The number of juvenile offenders who were apprehended for committing Penal

Code offences (even though most cases involve relatively minor thefts like un-

authorized appropriation of bicycles) has remained high since it peaked in 1983. In

1988 the number reached 231,210, however in 1989 it decreased to 199,644. It is

interesting to compare the data for 1989, where 57.4 percent of all Penal Code

offenders were juveniles to those of 1988, which show 53 percent juvenile Penal

code offenders. The ratio of Penal Code offenders per 1,000/population for 1989 is

for juveniles aged 14 through 19, 10.6, in comparison to an adult ratio of 1.6.

This upward trend in juvenile delinquency has caused some concern with the

law enforcement authorities, who interpret these data as a sign for a worsening

crime situation for which they are trying to get explanations from criminal justice

experts and criminologists helpful in developing effective countermeasures.

MAJOR TRENDS IN JUVENILE CRIMES

Characteristic for new trends in juvenile delinquency in Japan is especially the

increase of delinquent acts by younger juveniles and by females. Unemployed

youngsters are also, like in other countries, responsible for a high degree of criminal

offences. For the type of delinquent acts concerned, the thefts of bicyles and sho-

plifting are most noteworthy.

a) Increase of delinquent acts by younger juveniles

In 1989 the number of juveniles and child Penal Code offenders (without traffic

offences) cleared by the police was 199,644, representing a decrease of 31,566

under the previous year. The percentage of juvenile and child offenders among the

total number of offenders was, as mentioned before, 57.4 percent, whereby the male

juvenile delinquent rate was 77.8 percent, and the female 22.2 percent. Regarding

the age group, the upper-age group (18 years or more and less than 20 years) was

only 11 percent, the middle-age group (16 years or more and less than 18 years)

rs G.

was 29.8 percent, the under-age group (14 years or more and less than 16 years)

was 41.9 percent and child offenders (under 14 years of age) was 17.3 percent.

Although a trend toward a higher frequency of delinquent acts committed by

children and by younger juveniles aged 14 to 16 is evident from these figures,

considering the type of offences, it shows that relatively minor cases like thefts of

bicyles accounted for the overwhelming 76.0 percent of larcency cases, followed

by embezzlement at 10.6 percent and bodily injuries at 4.4 percent.

Minor delinquent acts like these are usually committed by juveniles who show

some deficiencies in the internalisation of societal norms or who experience less

control by parents and at the same time are confronted with an increase in oppor-

tunity structures like department stores or accessible bicyles. Peer group behavior

is often an important factor in determining delinquent acts, when for instance the

theft of a bicyle is done as a group approved act.

Probably the increase of shoplifing cases by 1.4 percent in 1988 compared to

1978 and the 3.4 percent increase in bicyle thefts are due to a number of interacting

socio-economic reasons. Nevertheless, if this trend continues it might show, that

less juveniles are capable or willing of adjusting to the demands and rewards of

industrial society, which manufactures and displays an abundance of material goods,

but at the same time has strict and often frustrating rules for obtaining them.

b) Increase of Female Juvenile Delinquency

Female juvenile delinquency has demonstrated a distinct upward trend. While

male juvenile delinquency decreased lighly in 1988, increased the female rate by

7,006 persons or 16.1 percent over the previous year. In 1989 decreased the number

of female delinquents again to 199,644, i.e. 6,230 persons or 12.3 percent under the

previous year. In 1988, 50,505 offenders were cleared by the police, which amounts

to the highest number ever experienced. By far the most frequently committed

female delinquent acts are thefts, which comprised 87.3 percent of all their Penal

Code offences.

The age structure of delinquent girls shows that especially junior high school

girls at an age of 14-15 have recorded higher delinquency rates, while senior high

school girls have shown no marked increase in the last 20 years. It seems that junior

high school pupils especially show an increased tendency to succumb to the tanta-

lizing offers of department stores. Juveniles, with certain deficiencies in socialisa-

tion, are often very receptive to the subtle psychological seductive power of

advertising and have not developed adequate defense mechanisms yet to deal with

the constant assault on their senses through ever-present advertising. If we consider

that senior female students show no marked increase in property offences, we can

deduce that at an older age they have learned to deal with the seductive stimuli of

their economic environment without having to resort to delinquent behavior.

As for the motives for theft, 47.7 percent of girls apprehended for shoplifing

cited that they wanted to satisfy their material passion and 30.0 percent mentioned

that they received a thrill and pleasure from shoplifting, while only 8.2 percent said,

that they stole from need. These results show to some extent that a real need is not

the cause for these forms of property crimes, but a compulsive one, partly induced

by advertising.

c) Increase of Juvenile Delinquency by Unemployed Juveniles

Unemployed juveniles constituted 11.7 percent of all juvenile delinquents

cleared by the police in 1988, although they form only three percent of the entire

juvenile population. They comprised the group from which came 17.2 percent of

all juveniles cleared for crimes of violence and 30.8 percent of those cleared for

heineous offences (homicide, robbery and rape), signifying their propensity to com-

mit more serious crimes. Unemployed juveniles were also responsible for a large

percentage of drug abuse cases in 1988 ; 34 percent of them were cleared for abuse

of organic solvents and 61 percent for the abuse of stimulant drugs.

Since Japan has at the moment a labor shortage, we can assume that these

youngsters are not in need of work but are unemployable for a number of reasons.

Inefficient socialisation to Japanese norms needed for successfully integrating into

the workforce might be one reason. School drop outs are less likely to be hired here

as elsewhere ; but a number of juveniles moreless intentionally opt for a delinquent

life-style in order to evade their duties towards society, which they feel are too

demanding and rigid. While the media often portrays a leasurely, abundant and

indulgent lifestyle, is it hard for them to accept reality which means hard work in

school or at a job, little leasure time, crowded living conditions, high prices, modest

pay and in many cases social alienation. Therefore more and more are fleeing reality

and by leading a criminal life they can maintain their fantasies of grandeur till they

are eventually apprenhended and forced to face the even greater discipline of ju-

venile detention centers or prisons.

MAJOR CATEGORIES OF JUVENILE

DELINQUENCY TODAY

As the major categories of juvenile delinquency today we would like to expand

on the problems of drug abuse, hot-rodder groups, school vandalism and domestic

violence.

1. Drug Abuse

The drug problem of Japanese juveniles is compared to the diverse drug habits

of youngsters in other countries still relatively confined to the abuse of organic

solvents and stimulant drugs. Heavier drugs like cocain, crack or heroin are still

relatively unobtainable here, showing to some extent, that there has not been a

process of market creation by dealers and organized criminals yet for these type of

drugs.

a) Abuse of organic solvents

A total of 23,279 juveniles were cleared by the police for abusing organic

solvents in 1989. The number of juveniles in this category has shown a downward

trend from 1982 to 1987, but has increased in 1988. Worth noting is also the fact

that the number of female juvenile substance abusers has increased.

b) Abuse of stimulant drugs

Juveniles cleared by the police for abusing stimulant drugs have shown a

steadily decreasing trend to 986 in 1989, nevertheless female constituted the note-

worthy number of 48 percent. Of all persons cleared by the police for such offences

in 1989, namely 16,866, 5.8 percent were juveniles.

2. Hot-Rodder-Groups

In a country with a strong road culture, with a spinweb of roads and highways

and a booming and world famous motorcycle industry, it is maybe no wonder, that

male juveniles are tempted to show off their “masculinity” by roaming the streets

in loud motorcycles during day and night. What has first looked to many like a

symbol of Japanese industrial success has eventually become a nuisance to the

public who is to a great extent plagued by severe noise and environmental pollution.

Eventually, as a result of the amendments in 1978 to the Road Traffic Law,

which regulates hot-rodder groups who operate their vehicles at high speeds in

defiance of speed restrictions, hot-rodding, by groups of offenders has decreased in

recent years. However, the frequency of such offences committed by small groups

or individuals has increased, the high level of exhaust-system noise generated from

modified vehicles is still a significant social problem.

Law enforcement has therefore strengthened against hot-rodders and preventive

activities have been organized at the local level, producing a decline in the mumbers

of hot-rodders. In 1988 juveniles belonging to hot-rodder groups amounted to 2,144

among all juveniles cleared by the police for Penal Code offences, or 27 percent of

the total number of offenders.

3. School Vandalism

One must know the highly competitive and disciplinatory Japanese school sys-

tem in order to understand this category of juvenile delinquency, signifying some-

how, that juveniles react increasingly with aggression and violence to their

e 502

frustration endured while struggling for entrance examination into prestigeous

schools which determine their future socio-economic status in Japanese society.

Although the frustration-aggression theory is applicable to some degree in ex-

plaining this phenomenon, one can also make the point that schools and society at

large, in spite of still emphasising traditional values like groupsism, must also nur-

ture the aggressive personality type necessary for an expansive and competitive

economy, therefore increasingly rewarding personal achievement, which is often

done at the costs of bullying weaker, less aggressive children.

Nevertheless, since 1983, the peak year (2,125), there has been a declining

trend in the number of cases of school vandalism reported to police ; offences under

that category include assaults by students against teachers, on other students and the

destruction of school property. There were 939 reported instances in 1989, which

was only 56 percent of the number of cases reported in 1983. The decrease is

interpreted by officials as resulting from life-style-guidance given to students by

school officials, close co-operation between the authorities and organizations con-

cerned with educational administration and increasing parental concern about vi-

olence in the schools.

4. Domestic Violence

Not only the school system, but also the home is considered for increasing

numbers of juveniles as too repressive for their ideas and dreams of freedom. The

Japanese education mom’ is notorious for using all her energies and every available

means for making her child succeed in the demanding school system. Many ju-

veniles react and 70.0 percent of all violent assaults were committed by children

against their mothers.

More than half of the juvenile offenders interviewed gave as the reason for

their violence the strict disciplinatory attitude by their parents.

After 1984 there had likewise been a decrease of the number of juveniles

reported to police for having committed violent acts in their homes like assaults

against family members and destruction of household property. In 1988 the number

increased again to 860, a figure 7.2 percent higher than the previous year.

CAUSES AND FACTORS CONTRIBUTING

TO JUVENILE DELINQUENCY

Although there might be many factors causing juvenile delinquency, for the

time being we would like to emphasize changing juvenile characteristics and atti-

tudes, the family environment and education difficulties as key factors in explaining

this social problem.

067 GO

a) Juvenile Characteristics and Attitudes

It has been generally recognized that certain psychological characteristics like

self-centredness, emotional instability, aggressiveness, a strong sense of inferiority,

indifference toward social norms and values, or a lack of sympathetic feelings

toward others tend to promote juvenile delinquency. With the alienating effects of

the modernisation process certain changes have occured in the attitudes and ways

of thinking in parts of juveniles and youth, bringing about a greater prevalence of

such character traits as apathy, indifference, lack of motivation and impaired self-

control. There also seems to be a ‘“moratorium” towards active participation in

society, causing delayed social maturation and a reduced regard for social norms

and values.

b) Family Environment

In nuclear families with few children, the form of the family most prevalent in

Japan today, parents almost inevitably become either overly protective and therefore

interfere excessively in the lives of their children, or neglecting of the socio-psy-

chological needs of their offsprings, since they are preoccupied with achieving

material success. As a result, children are likely either to be self-centred, lack

initiative and self-reliance or are deficient in social skills. But also parental prob-

lems, like marital discord and disagreements over child discipline, tend to disturb

the harmonious relationships in the family.

The trend towards the nuclear family can be also demonstrated by a decreasing

birth rate. The percentage of young persons under age 24 within the whole popula-

tion has declined steadily from 1950, when it was 50 percent, to 1987, when it was

35 percent. The average number of persons living in households has decreased to

about 3.14 in 1987.

Japan’s rapid economic growth in the 1970s, followed by its more stable

economic development thereafter, have significantly increased family incomes, so

that Japanese families enjoy greater affluence, which nevertheless resulted also in

an undesirable materialism and the development of wasteful spending habits.

According to the criminal statistics of 1989, the Japanese juvenile offenders

who committed Penal Code offences and were treated in Family Courts, came from

mainly middle-class families with an average socio-economic background (89.9%).

81.1 percent attend school, 9.1 percent are employees, while 9.8 percent are neither

students nor employees.

c) Educative Difficulties

Augmented family incomes and a meritocracy which uses education as the

most decisive indicator for socio-economic success, have brought about increased

& gras

pressure on the education system. In 1987 some 38 percent of all high-school

graduates entered colleges and universities, in contrast with only 23 percent in 1970,

resulting in intense competition for entrance examinations, tighter control over the

contents of public school education, and the needs for cram-schools (examination

preparatory schools). These developments tend to repress the individual mental and

psychological growth of children, eventually generating serious problems like

school vandalism, withdrawal, refusals to attend schools and bullying activities.

Especially a sharply increasing number of children withdrawing from or refusing to

go to school has become a new social problem.

CONTROL AND PREVENTION OF JUVENILE

DELINQUENCY

Japan’s legal system for the protection of juveniles has two main aspects. First,

neglected, abandoned and maltreated youngsters in need of care are dealt with

primarily by Child Welfare Institutions within the administrative branch. Second,

juveniles who have committed delinquent acts are processed through the Family

Courts, which are a part of the judicial system.

The Juvenile Law is directed toward the sound psychological development of

Juveniles, a basic policy which is implemented throughout the entire juvenile pro-

ceedings, including the apprehension, investigation and family court inquiry of ju-

venile delinquents and are also guiding principles in the disposition and

enforcement of judicial orders.

Police and public prosecutors are responsible for the investigation of juvenile

cases and, if necessary, referals to the Family Court. The Law implies, that any

person confronted with a pre-delinquent juvenile shall refer him or her to the Family

Court. In instances of pre-delinquent juveniles under 18 years of age, a police

officer or guardian who believes measures under the Child Welfare Law are more

preferable than Family Court action may directly notify the Juvenile Guidance

Center of the prefecture. In instances of child offenders (under 14 years of age) and

pre-delinquent juveniles under 14, can any person, confronted with these young-

sters, inform the Prefectural Social Welfare Office or Child Guidance Center. In

some cases, the prefectural Government or the Child Guidance Center might take

compulsory measures and refer the juvenile to the Family Court.

Juvenile cases are handled by a total of 50 Family Courts located at prefectural

capitals and other locations, with some 100 branches throughout the country. Family

Courts are competent to dispose of both juvenile cases and family affairs cases. The

devision, which processes juvenile delinquent cases, have a certain number of

judges, family court pre-sentence investigators (chosa-kan), court clerks, medical

personnel assigned to family court clinics and other administrative staff.

Characteristic of Family Court judges and pre-sentence investigators is, that

their academic background includes social and behavioral sciences like psychology,

E T E

sociology, pedagogy and other humanities related disciplines. Upon appointment,

they receive in-service professional training under the auspices of the Research and

Training Institute for Family Court Pre-sentence Investigators in such subjects as

investigative methodology and techniques.

When a Family Court finds that a particular juvenile is subject to its jurisdic-

tion, a Family Court judge orders a Family Court pre-sentence investigator to con-

duct a preliminary investigation and inquiry into such matters as the juvenile’s

character, life history, upbringing, environment and degree of delinquency. He or

she then reports the investigative findings to the judge, accompanied by recommen-

dations about an appropriate treatment for the juvenile under investigation.

A Family Court judge is empowered to authorise the temporary detention of a

juvenile when that is considered necessary for the purpose of either a preliminary

investigation and hearing or a diagnostic examination of a juvenile’s mental and

physical condition. Detention facilities are juvenile classification homes where di-

agnostic examinations are conducted.

Juvenile Classification Homes are under the control of the Correction Bureau

of the Ministry of Justice. Their primary function is to maintain custody of detained

juveniles and to make classification recommendations based on the evaluation of

their personality. The latter involves an assessment of such factors as intelligence,

character, attitudes and degrees of delinquent tendencies, based on professional

expertise in such fields as medicine, pedagogy, sociology and behavioral science.

Diagnostic resuls and classification recommendations are submitted to the commit-

ting Family Court and utilised as background data for a preliminary investigation

by a Family Court pre-sentence investigator, Family Court hearings and the enforce-

ment of protective measures.

At present 53 homes, including two branch homes, have been established

throughout Japan. In 1988, a total of 19,207 juveniles were newly admitted to them,

an 11 percent decrease from the 1983 rate.

Family Court proceedings are conducted ex officio by a Family Court judge

without the attendance of a public prosecutor. Hearings are closed to the public and

are intended to be as non-threatening and protective of a juvenile’s state of mind

and feelings as possible. No strict legal rules govern procedure, or the nature and

scope of evidentiary data.

Of the cases disposed finally by the Family Courts in 1988, 6 percent were

refered to public prosecutors offices and 2.2 percent to Juvenile Training Schools.

An order of probation was executed in 7.3 percent, an order of dismissal in 16

percent and a dismissal without a hearing in 24 percent. In the case of an order of

dismissal, juveniles are given advice and psychological counseling concerning their

conduct and further way of life.

}

The Family Court plays a most important role in the Juvenile Justice System

in Japan. Interestingly, the proceedings of the Family Court in Japan come close to

what is discussed as “diversion”’ by many criminologists and criminal justice experts

in different countries today, refering to the more informal, less stigmatising handling

of juvenile delinquents, important for their successful reintegration into society, and

representing an effective institutional tool for the maintaining of a low crime rate

in Japan.

REFERENCES

KÜHNE, Hans Heiner and MryAZAwA, Koichi, Das Japanische Jugendgesetz, 1975.

MIYAZAWA, Koichi, Jugendkriminalität in Japan, in

Festschrift für Günter Blau, 1985,

S. 277 ff.

EULLER CooxK, Schura, Social Harmony and Low Crime Rate, Japan Times, April 24th, 1988.

EULLER Cook, Schura, Japan’s Rising Female Crime Rate, Daily Yomiuri, June 25th, 1989.

Fus1MoTo, Tetsuya, The Present States of Juvenile Delinquency in Japan. The First Asian-Pa-

cific Conference on Juvenile Delinquency, 1980, pp. 41-48.

NAKATA, Osamu, The Statistic and Psychiatric Studies on Juvenile Delinquency in Japan, in

same volume, pp. 63-67.

TOKUSHIGE, Atsushi, The Current Delinquents and the Tendency of their Parent-Child Rela-

tions, in same volume, pp. 175-177.

UcHIYAMA, Kikuo and TsUBOUCHI, Kosuke, Institutional Treatment of Juvenile Delinquent in

Japan, in same volume, pp. 190-199.

SATo, Mitsuko, Effective Ways of Providing Juvenile Guidance in the Community. The se-

cond Asian-Pacific Conference on Juvenile Delinquency, 1982, pp. 96-100.

Fus1MoTo, Tetsuya, Problems of Juveniles in School of Japan, in same volume, pp. 144-155.

MryAZAWA, Koichi, Problems of Juvenile Delinquency in School and Family, in same volume,

pp. 193-199.

TOMITA, Nobuho, Two Diversion Programs for Juvenile Offenders at the Stage of the Police

in Japanese Juvenile Justice System. The Third Asian-Pacific Conference on Juvenile

Delinquency, 1984, pp. 241-246.

TOKUSHIGE, Atsushi, The Situation of Juvenile Delinquency in Japan. The Fouth Asian-Pacific

Conference on Juvenile Delinquency, 1986, pp. 99-102.

HosoI, Yoko, Recent Trends in Female Delinquency in Japan, in same volume, pp. 214-224.

MIZUTANI, Masatoshi, Juvenile Justice in Japan, in same volume, pp. 307-310.

YASUTOMI, Kiyoshi, Current Trends in Juvenile Delinquency and Justice in Japan. The Fifth

Asian-Pacific Conference on Juvenile Delinquency, 1988, pp. 100-105.

YAMAGAMI, Akira, Analysis of the Current Juvenile Delinquency Wave in Japan, in same

volume, pp. 114-119.

MiyAZAWA, Koichi, Criminal and Social Policy for Juvenile Delinquency in Japan, in same

volume, pp. 234-237.

ATSsUMI, Toyo, Juvenile Delinquency and the Idea of Parens Patriae, in same volume, pp. 342-

348.

Euqpre.

MATERIALS

National Police Agency (ed.), White Paper on Police, 1989, 1990.

Government of Japan. Ministry of Justice (ed.), White Paper on Criminality, 1989, 1990.

Correction Bureau. Ministry of Justice (ed.), Correctional Institutions in Japan, 1990.

International Co-operation in Crime Prevention and Criminal Justice for the Twenty-first

Century. National Statement Japan, 1990.

SHIKITA, Minoru and TsucHIYA, Shinichi (eds), Crime and Criminal Policy in Japan from 1926

to 1988. Analysis and Evaluation of the Showa Era. Japan Criminal Policy Society, 1990.

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Aidos and depravity :

a comparative study of responses

to pornography in Greece

and in England and Wales

Eugene TRIVIZAS* and Christie DAvIES**

INTRODUCTION

À great deal has been written concerning the responses to obscenity or porno-

graphy in particular countries but few attempts have been made to compare the

experience of countries with different moral and cultural traditions. In this study we

have tried to make just such a comparison between Greece and Britain, two coun-

tries with a common European heritage yet which are in many senses at the opposite

ends of Europe. The purpose of the comparison is to enable us to extract the

culturally distinctive elements in the responses of parallel institutions and pressure

groups in the two countries to the social phenomenon we term pornography.

1. Distinctive Cultural Concepts

Although Britain and Greece are both part of the European Community and

share a common classical and Christian cultural heritage, nonetheless there are

important differences in the history and traditions of the two societies. In con-

sequence the very concepts that are employed in any discussion of pornography and

of the appropriate political and legal response to it, differ between Greece and

Britain and this must be taken into account in any comparative analysis.

* Dr Eugene Trivizas, BSc (Econ), LLB (Athens), LLM, PhD (London), Barrister at Law

(Athens), is lecturer in criminology in the Dept. of Sociology, University of Reading, Whi-

teknights, Reading, RG6 2AA, England.

* Professor Christie Davies, M.A. (Cantab), is Professor of Sociology and Head of Depart-

ment, Dept. of Sociology, University of Reading, Reading, England.

a1691 e

A. Continuities in the Greek tradition

Since classical times, aidos has been one of the basic elements of Greek moral-

ity. Regardless of whether the inhabitants of ancient Greece lived up to their moral

ideals, we can certainly say that aidos was a key, a central moral concept for that

society. Hesiod, for instance, writes that wherever we find mankind in a state of

total depravity we find also the abandonment of aidos (Hesiod, 1978). It is important

to know the meaning of this term since it still provides the basis for the definition

of indecency in modern Greece and it is built into the Greek Constitution. The word

aidos has even been adopted into the English language. Thus Chambers’ twentieth

century dictionary defines Aidos as “shame” or “modesty” (Chambers, 1977). A

more detailed definition can be found in Liddell and Scott’s Greek-English lexicon.

Aidos is defined as “a sense of shame, bashfulness, modesty, a sense of shame or

honour, regard for others, respect, reverence, that which causes shame or respect

and so a shame, scandal” (Liddell and Scott, 1958).

In Greek mythology, Aidos, the personification of ones wish not to cause

offence or sorrow to those for whom one felt respect, was the nurturer of Athena,

the mother of Sophroseni (Prudence) and a counsellor of Zeus (Jupiter). Together

with Hera (Juno) and Vesta, Aidos was the protector of family life. In Athens there

was an altar dedicated to Aidos and in Sparta a statue presented by Ikarious the

father of Penelope, was set up in her honour. The reason for Ikarious’ action was

related to an incident that occurred when he gave his daughter Penelope in marriage

to Ulysses. Ikarious had tried to talk Ulysses into staying in Lacedaemonia. Having

failed to convince him, he ran after the chariot taking the couple away from Sparta

trying to persuade his daughter to stay. Ulysses annoyed by Ikarious’ importuning,

stopped the chariot and told Penelope to make up her mind either to follow him or

to stay behind with her father. Penelope gave no answer, but she covered her face.

Ikarious understood that Penelope wished to follow Ulysses and on the very spot

where Penelope felt aidos and covered her face, he placed the statue to Aidos.

References to aidos can also be found in many works of classical philosophy

and ethics. For Aristotle the seat of aidos was the eyes. He argued that aidos

represents a golden mean between the two undesirable extremes of shamelessness

and pathological shame and for that reason he places it among the praiseworthy

feelings :

… There are also means in the passions and concerned with the passions ; since

shame is not a virtue and yet praise is extended to the modest man. For even

in these matters one man is said to be intermediate and another to exceed, as

for instance the bashful man who is ashamed of everything ; while he who falls

short or is not ashamed of anything at all is shameless and the intermediate

person is modest… There are three kinds of disposition, then, two of them vices,

involving excess and deficiency respectively and one, a virtue, viz the mean,

and all are in a sense opposed to all… (Aristotle, 1925).

Most classical Greek authors perceived aidos as an innate and automatic moral

feeling, not as something acquired by instruction nor the result of taking thought.

Es GR

Plato in Protagoras presents the well-known sophist giving to Socrates the

following account of how Zeus gave aidos to all humans :

… (Mankind) lived at first in scattered groups; there were no cities. Con-

sequently they were devoured by wild beasts, since they were in every respect

the weaker… They sought, therefore, to save themselves by coming together

and founding fortified cities, but when they gathered in communities they

injured one another for want of political skill and so scattered again and

continued to be devoured. Zeus, therefore, fearing the total destruction of our

race, sent Hermes to impart to men the qualities of respect for others

(aidos) and a sense of justice… Hermes asked Zeus in what manner he was

to bestow these gifts on men. “Shall I distribute them as the arts were dis-

tributed — that is, on the principle that one trained doctor suffices for many

laymen, and so with the other experts ? Shall I distribute justice and aidos in

this way, or to all alike ”” “To all” said Zeus. “Let all have their share. There

could never be cities if only a few shared in these virtues, as in the arts.

Moreover, you must lay it down as my law that if anyone is incapable of

acquiring his share of these two virtues he shall be put to death as a plague

to the city” (Plato, 1975).

Aidos then has long been regarded in the Greek moral tradition as not only an

innate and fundamental moral quality and capacity but also one that is fundamental

to the formation and continued existence of society and of any human polity. It

continues today to be a term employed in legal texts and case law in modern Greece

when questions of indecency and what constitutes an indecent item are being dis-

cussed. It occupies the same central position in Greek thinking on this issue that the

notion of “tendency to deprave and corrupt” does in England and Wales.

An indecent item as defined by Article 30 of the Greek 5060/31 Act is one

that, according to “commonly held sentiments”, offends aidos. The law here refers

not to the offender’s aidos, but to the aidos of others who may be exposed to the

indecent item. In other words, items are held to be indecent if there is a generally

held feeling that a person should feel ashamed or embarrassed on seeing or reading

them. According to Androulakis (1983) a leading authority on the subject, the items

that ought to make one feel ashamed are images or representations of acts which,

according to the prevailing social ethos, should only take place in private. He argues

that two types of act fall into this category, viz, sexual acts and acts of excretion.

According to Androulakis’ interpretation, Greek Law protects not a moral order or

sexual morality as such, but rather the emotional tranquility of the citizenry that

may be disturbed by unpleasant feelings of shame. It is debatable whether this

distinction is a clear cut as he implies. “Sexual morality” and “disruption of

emotional tranquillity” may well be simply the opposite sides of the same coin. It

can reasonably be argued that feelings of shame and of disruption of “emotional

tranquility” are only likely to be experienced by persons who hold a particular set

of moral attitudes regardless of whether those attitudes have a religious origin or

not

2160 4

However, Professor Androulakis is right in pointing out that there is a marked

difference between the criminal law of Greece and that of legal systems like the

English that define obscenity in terms of its tendency to deprave and corrupt.

The vague term “commonly held sentiments” has given rise to much disagreement

as to the correct criterion to be employed in order to determine in practice what offends

aidos on a specific occasion. Some courts have held that the right criterion should be

the feelings of a notional normal average person. Other courts, including the Supreme

Court of Greece, have declared that reference should be made to what the totality or the

majority of the members of society feel about these issues. Also combinations of both

these criteria have been employed in certain decisions of the Greek Courts. However, it

should be stressed that irrespective of the criterion employed, the courts have taken it

for granted that the majority of the members of society and/or the normal average

person, do find sexually explicit materials offensive.

B. The development of British attitudes

There are fewer important cultural continuities in the case of England and

Wales than in that of Greece. It would add little to our understanding of present day

British attitudes to examine the reflections of such early British moralists and law-

makers as Pelagius (Morgan), Gildas or Hywel Dda. Rather it makes more sense to

look at the explicit and implicit moral concepts used in contemporary Britain and

to show how these have evolved in the last thirty years and how they may be

contrasted with the ways in which pronography was assessed in late nineteenth and

early twentieth century Britain.

It is doubtful whether in Britain today it is possible to get any marked degree

of agreement among its individual citizens as to what constitutes pornography (see

Grey in Yaffé and Nelson, 1982, pp. 48-50, Robertson, 1979, pp. 206-209) beyond

the unhelpful and imprecise view that it consists of depictions of sexuality in words,

images or public displays that are felt to be offensive or threatening, i.e. indecent

or even obscene. Pornography is a significant social phenomenon, in a sense that,

say, banal television series, advertisements rooted in greed or snobbery, the stereo-

typed pulp fiction of war, crime or romance, gloating accounts of brutal boxing

matches, or the Guardian are not, viz, it has inflamed people of varying political

and moral persuasions into using the power of the state to suppress, censor or

control it. The category “pornography” only exists because of the organised opposi-

tion to it. The definitions of obscenity and thus of pornography built into the law

by Parliament or the courts are thus the crucial ones because they determine how

and when this power is exercised. The key defining phrase occurs in the judgement

of the then Lord Chief Justice, Sir Alexander Cockburn in the 1868 case Regina v.

Hicklin who declared : “the test of obscenity is this, whether the tendency of the

matter charged is obscenity is to deprave and corrupt those whose minds are open

to such immoral influences, and into whose hands a publication of this sort may

fall”. Over time, however, this test has been modified by legislation and juries and

magistrates have gradually come to interpret and apply the concept “deprave and

corrupt” in new different and in general more lenient ways. It is these changes that

2 T0

have had the greatest effect on the nature and availability of pornography in Britain,

especially within the last three decades. In order to understand this shifting practical

definition of the pornographic and thus the scope of what the law regards as por-

nographic, it is necessary first to examine recent changes in the moral concepts

employed both by those who changed the law and by those who had to make

decisions concerning when it applied.

The phenomenon of decensorship which led to the growth in pornography in

Britain should not be viewed in isolation from the other major changes that occurred

in the relationship between law and morality in the period 1959-1979 and especially

in the 1960s, notably the liberalisation of the laws relating to divorce and abortion

and the abolition of the laws criminalising homosexual behaviour between con-

senting male adults. In all these changes it is possible to discern a shift from a

pattern of moral beliefs that have been termed ‘““moralism” to another different moral

outlook referred to as “causalism” (see Davies, 1975; Davies, 1978 ; Davies, 1980;

Offenbach in Yaffé and Nelson, 1982). For the moralist an activity that is wrong,

immoral or wicked should be forbidden by law and those who are detected,

punished. In Britain divorce, abortion, homosexuality, pornography, have all been

dealt with in this way in the past. The essence of this view is that the purpose of

the law is to protect the innocent, reward the virtuous, punish the wicked and in

this way to proclaim the values that underlie the classification of people into these

categories. Thus prior to the 1960’s abortion and male homosexual acts were illegal

and divorce only granted at the request of the “innocent” party after a legal action

in which the guilt of the other partner had been demonstrated.

By contrast the causalist is concerned with weighing up the balance of harm,

pain, suffering, that will result from prohibiting an activity on the one hand and

permitting it on the other. To deny a divorce to a “guilty” party may result in the

stigmatizing of their second illicit family. Women will seek abortions whether they

are legal or not, so a restrictive law will drive them into the hands of incompetent

backstreet abortionists with horrendous results. If homosexual acts in private are

criminal, homosexuals will be subject to harassment, blackmail and entrapment. The

“causalist” is a short-term negative utilitarian concerned not with the maximisation

of happiness, but with the minimisation of harm; not with some distant ideal world

but with today and tomorrow. It was on these causalist grounds that the Parliament

reformed the laws relating to divorce, abortion and homosexuality in the 1960s. For

some British politicians a causalist outlook was a natural part of the capitalist

welfare state dominated by large bureaucratic institutions that Britain had become

by the late twentieth century. Welfare, insurance and the settling of liability are

typical procedures of such a society in which the aim is not precision of rewards

and penalties according to individual desert, but the prevention, the smoothing out,

the compensation for harm at minimum cost. For others it was a rhetorical device

that enabled them to capture the middle ground of British politics in order to bring

about moral reform. It was the political tactic of “softly, softly” which avoided a

head on clash of fundamental values and thus forestalled any attempt by their

opponents to launch a moral crusade in defence of the status quo (see Davies and

Trivizas, 1986).

The decline of the moralist outlook and the victory of causalism had important

implications for attitudes to pornography and in particular to the legal regulations

of pornography in British society. The traditional formula defining obscenity in

terms of a tendency to “deprave and corrupt” implies : (i) that pornography makes

those who read it morally worse persons, a moralist proposition that is value-laden

and untestable and thus suspect in a society dominated by causalist thinking; (ii)

that pornography renders its consumers more likely to go out and commit sexual

offences and in particular sexual assaults in which victims are attacked and/or com-

pelled to submit to sexual acts to which they have not consented. In the past if a

pornographic work was sufficiently offensive, it tended to be assumed that the first

of these propositions held and this was sufficient evidence of a tendency to deprave

and corrupt. It was then either taken for granted that the second proposition was

also true or else it was simply ignored. Very little serious consideration had been

given to the empirical question, “Does the availability of pornography result in an

increase in sexual assaults, in a decrease, or no significant effect either way ?”

At the end of the period of decensorship by contrast, there were available a

number of British, American and Scandinavian studies seeking to discover what

effects, if any, pornography had on the incidence of sexual assaults and a willing-

ness by official committees to look at the experience of other countries. The most

thorough and detailed of these appraisals was that of the ‘“Report of the Committee

on Obscenity and Film Censorship” (1979), a Home Office Departmental Com-

mittee set up in July 1977 “to review the laws concerning obscenity, indecency and

violence in publications, displays, and entertainments in England and Wales except

in the field of broadcasting and to review the arrangements for film censorship in

England and Wales; and to make recommendations”. The final report popularly

known as the Williams report after the Committee’s Chairman Professor Bernard

Williams was presented to Parliament. Maurice Yaffé in his review of the effects

of literature for the Committee, concluded that there did not “‘appear to be any

strong evidence that exposure to sexuality explicit material triggers off anti-social

behaviour” (Report, 1979; Appendix, p. 242. See also p. 66, p. 4). This finding will

no doubt have influenced the members of the Committee in reaching a liberal

conclusion since their philosophical position was a causalist one :

The law should rest partly on the basis of harms caused by or involved in the

existence of the material : these alone can justify prohibitions; and partly on

the basis of the public’s legitimate interest in not being offended by the display

and availability of the material : this can justify no more than the imposition

of restrictions designed to protect the ordinary citizen from unreasonable of-

fence (Report, pp. 159-160) (Underlining added).

The most radical conclusion that the Committee reached was that : “The

printed word should be neither restricted nor prohibited since its nature makes it

neither immediately offensive nor capable of involving the harms we identify and

because of its importance in conveying ideas” (Report of Committee on Obscenity,

1979, p. 160).

For the British causalists all legislation has to be assessed not merely on the

basis of the harm caused or potentially caused by the action to be prohibited or

constrained (whether it be divorce, abortion, homosexual behaviour, gambling,

prostitution, the consumption of soft drugs such as alcohol, cannabis, tobacco or the

publication of pornography) but by comparing this harm with the harm caused by

trying to enforce such laws. In the case of pornography, the deleterious effects of

trying to enforce the law were clearly stated by Sir Robert Mark then Commissioner

of the Metropolitan Police in 1973 :

Our experience with pornography shows that some activities, even if most

people think them undesirable or offensive, cannot, in practice, be stopped. The

most one can hope for is to regulate the way in which they are carried on.

Gambling, brothel-keeping, unconventional sexual practices, are all in this

category. There is no certainly that very severe penalties would suppress them.

The demand will always be there. A more likely effect is that they would be

driven underground, raising the cost to the consumer and the profit to those

willing to take the risks. The incentive to oppose or corrupt the police would

be greatly increased. Prohibition in the United States, which created a climate

in which gangsters could thrive, is surely the classic example of a self-defeating

attempt to eradicate the ineradicable (Mark, 1973, p. 7).

Sir Robert Mark became Commissioner of Police in 1972 in part, at least,

because the Home Office wanted to appoint an outsider to this post who would be

more willing and able to deal with the increasing problem of corruption within the

Metropolitan Police than an existing member of that force. The Obscene Publica-

tions Squad who accepted large bribes from certain producers and retailers of por-

nography to concentrate police efforts on their business rivals was at the core of

police corruption in London. The economic basis of corruption in restricted markets

is essentially similar regardless of whether the legal restrictions are moralist or

economic in intent. The use of the power of the state to prohibit or inhibit the supply

of any commodity such as bootleg liquor during Prohibition in America, Scotch

whiskey in Bombay, American nylons in post-war “austerity” Britain, Western qu-

ality consumer goods in the socialist countries of Eastern Europe, African bananas

in Greece or pornography in London, produces a situation where there are two very

different prices or a large gap between cost of production and price. The individual

able to buy at a low price in the free market or to manufacture at low cost and to

sell at the artificially high price prevailing in the restricted market, can make a very

high profit indeed. However, this extortionate profit margin is only secure so long

as, (a) he or she can elude or bribe the gate-keepers of the system and thus move

freely in and out of the restricted market and, (b) the gate-keepers are successful in

preventing other potential entrants whose competition would bring down prices

from entering the restricted market. It is a recipe for the corruption of police,

customs officers, central planners and those who grant licences, permits, quotas, etc.

(see Bhargava, 1977; Block, 1976; Davies, 1978a and 1979; Dwivedy and Bhar-

gava, 1966; Kaiser, 1976; Krueger, 1974; Milne, 1976).

In the case of the sellers of pornography (as distinct from, say, the peddlers of

hard drugs, or ponces) corruption was particularly likely because the officers on the

é L 00 E

London police “dirty squad”’ came to regard pornography as harmless and many

members of the porn squad felt that any neglect of law enforcement on their part

was not going to harm anyone. The situation in London in the early 1970s with

discredited legal restrictions that were continually being undermined, challenged,

defied and reinterpreted, was especially conducive to the acquisition of such an

attitude on the part of the police.

It is not surprising then that several high ranking officers of the Obscene

Publications Squad regularly accepted substantial bribes from the pornbrokers. This

was the reason for the concern expressed by Sir Robert Mark about the risks of

corruption if pornography remained illegal and led to his decision to investigate the

Obscene Publications Squad in 1973 and in 1976-1977 to be three largest ever

corruption trials in the entire history of the Metropolitan Police (see Tomkinson,

1982, p. 98 and Cox et al., 1977). Ex-Detective Chief Inspector George Fenwick

who had been the operational head of the O.P.S. was convicted of conspiracy and

bribery. Ex-Detective Chief Superintendent Bill Moody, a former head of the

O.P.S., and Ex-Commander Wally Virgo, the longest serving detective in the

Metropolitan Police who had at one time had national responsibility for prison

security and had been in charge of several elite detective units including the Drug

Squad and the O.P.S., were found guilty on a number of charges of conspiracy,

bribery and corruption, involving extremely large sums of money (see Tomkinson,

1982 and Cox et al., 1977). À significant number of other police officers concerned

with the repression of pornography were either convicted, dismissed or retired. It is

likely that others escaped notice and they may well have carried the dangerous habit

of corruption to other more vital areas of police duties. In any case, the purges and

drastic reorganisation of 1977 can only have had a temporary effect. In the long run

the pressures making for corruption remain powerful and Sir Robert Mark’s succes-

sors will find it as difficult to root out as Mikhail Sergeyevitch Gorbachev, Rajiv

Gandhi or anyone else trying to limit or repress a market that many individuals

regard as legitimate (see Block, 1986; Brokhin, 1977; Davies, 1978; Kaiser, 1976).

The police of the British Obscene Publications Squad in effect sold operating

licences to certain favoured pornbrokers but over time their activities came un-

pleasantly close to blackmail and the extortion of protection money as they came

to realise that they were in a position to demand large sums of money from any

potential dealer in pornography. Also as in many black or grey markets, in which

it is impossible to settle business disputes according to the law and through the

courts the pornbrokers tended to use violence instead. Disputes over the mass pirat-

ing of pornographic videos for instance, have been known to lead to murder because

there is no way of protecting the copyright of these expensively produced items by

using the civil law.

The negative consequences of the existence and/or enforcement of Britain’s

laws against pornography have been outlined in some detail by causalist critics of

the obscenity laws (see Report of the Committee on Obscenity, 1979, pp. 39-40).

Since in general research indicates that pornography does not incite readers or

viewers to commit sexual crimes (and indeed may restrain them from doing so) the

e A

realisation of the sizeable negative effects of retaining and enforcing the law against

it may well have had considerable influence in a country such as Britain with a long

tradition of utilitarian thinking about the law which in recent times has taken a

causalist form.

2. Political ideology and the emergence of feminism

A. Britain : From Decensorship to polarisation

The recent history of political attitudes towards pornography in Britain can be

divided for convenience into two broad periods : the age of decensorship 1959-1979

and then from 1979 to the present day, a period of querulous symbolic politics

whose outcome is very uncertain. The two decades of decensorship saw a marked

decline in the ability and willingness of the state and the courts to exercise censor-

ship of obscenity and a corresponding growth in the production and availability of

pornography.

During the period of decensorship there were a number of significant legislative

changes relating to the censorship of obscenity which in turn had a marked effect

on the trade in pornography. Yet when these changes are analysed it is by no means

certain (a) that in passing the relevant Acts the British Parliament intended or

expected that there should be such a striking relaxation of the rigours of censorship

as subsequently took place ; (b) that the permissive liberalization that did occur was

à necessary and inevitable consequence of the changes in the law. In the case both

of the Obscene Publications Acts of 1959 and 1964 and of the Theatres Act of 1968

the view was often expressed at the time that these legislative changes would lead

to increased censorship and a clamp-down on pornography and its stage equivalents.

The 1959 Act, like much British legislation on moral issues, was not a govern-

ment measure but a private member’s bill (see P.G. Richards, 1970), i.e. it was

introduced by a back-bench (i.e. not part of the government) member of the British

Parliament and the M.P’s who normally vote according to the dictates of the leaders

of their particular political party were able to vote as they chose. The main aim of

the sponsors of the Obscene Publications Bill was to free works of literary or

scientific merit from the threat of prosecution, or at least of successful prosecution.

In order to placate their less intellectual or more puritanical colleagues they were

willing as a piece of crude political horse-trading to sacrifice the civil rights of the

hard core pornographers and to grant the police greater powers of search and seizure

(See Robertson, 1970, p. 43). Ronald Bell M.P. noted : “I know that a sort of

make-weight in this Bill two — possibly three — provisions are included which, it

is said, will tighten up the administration of the law so that while allowing greater

freedom for literature, at least there will be greater severity in punishing pornogra-

phy” (Hansard, vol. 597, col. 1039).

The odd result of all this bargaining and balancing can be seen in the preamble

to the 1959 Obscene Publications Act which describes it as “an Act to amend the

s44 d

law relating to the publication of obscene matter; to provide for the protection of

literature and to strengthen the law concerning pornography”.

The British 1959 Obscene Publications Act both directly and indirectly has

made it more difficult for prosecutions to succeed and thus in time discouraged the

prosecuting authorities from bringing cases before the courts. The direct factor, as

we shall see later, was the series of often unsuccessful trials of literary works for

obscenity under the new Act. The new Obscene Publications Act (a) deemed a work

to be obscene “‘if its effect is, if faken as a whole such as to tend to deprave and

corrupt persons who are likely, 'having regard to all the relevant circumstances, to

read, see, or hear the matter contained or embodied in it”. The “deprave and cor-

rupt” formula is the traditional test that has been used throughout the Common Law

world since the 1868 case of Regina v Hicklin but the new framework (indicated

by the added italics) within which the test had to be applied meant that the pros-

ecution could no longer succeed merely by quoting isolated salacious passages or

speculating about the effect of the work on an unlikely but peculiarly vulnerable

reader. (b) Permitted the defence that publication “is justified as being for the public

good on the ground that it is in the interests of science, literature, art or learning or

of other objects of general concern” (Cited in Simpson, 1983, pp. 5-6) and allowed

the defendants to call expert witnesses to testify to this effect.

The supporters of the 1959 Act stated, probably in most cases sincerely, that

they did not intend or expect the kind of boom in the production and sale of

pornography that did in fact subsequently occur. Eric Fletcher, M.P. for instance,

asserted : “I do not believe that it will do anything to increase the distribution of

pornographic literature”’ (Hansard, vol. 604, col. 855).

By 1964 it was already clear that these predictions had proved false. The

Conservative M.P. and hard-line Baptist Sir Cyril Black noted :

When the 1959 legislation was before Parliament there was a general hope

that it would improve the position about the publication of pornographic lit-

erature and would make it easier for the courts to deal with this evil… many

people have been very disappointed with the consequences of the 1959 Act as

these consequences seem to be entirely different from what was then expected

by many people (Hansard, vol. 695, col. 1162).

The large rise in the output of pornography between 1959 and 1964, the fall

in its prices and the significant expansion of the size of the market, led to the

introduction of a further Obscene Publications Act in 1964 which sought to close

loopholes in the existing law and to make it easier for the police to bring prosecu-

tions and gain convictions. This law was introduced by the then Conservative

government, the first time in over a century that any government had initiated

legislation relating to the control and censorship of obscenity (see Hansard,

vol. 695, col. 1150). It reflected certain irresolveable contradictions within the ide-

ology of the Conservative Party whose leadership was totally unwilling to praise

the pornographers’ success in improving productivity, sales and output, despite the

Conservatives” supposed general commitment to the values of the free market and

consumer sovereignty. In general it may be said that the measures introduced in

1964 had little effect on the general liberalisation that occurred in the two decades

after 1959.

British politics in the 1980s proved to be far more ideologically divided than

in the era of causalist decensorship. Both of the main parties moved away from the

centre and in different ways repudiated the consensus politics that sustained the

bureaucratic capitalist welfare state of the 1950s and 1960s. Within the Labour

party, the leadership of Foot and even of Kinnock has been weel to the left of

Callaghan and Wilson and the extreme left is now well entrenched in Parliament

and even more powerful in the constituencies and in local government. Similarly,

the government of Mrs. Tchatcher has a determined and doctrinaire outlook that is

quite different from the party of Macmillan or even Edward Heath. The background

to this move to the extremes was that Britain’s slow century-long relative economic

decline was exacerbated by the world economic crisis. In the 1950s and 1960s

Britain was already falling behind the other industrial countries due to the relatively

low rate of growth of the economy but there was low inflation and low unemploy-

ment and a gradual but steady improvement in living standards. In 1974-1976,

however, inflation rose to well over 20% and by the 1980s there were over three

million unemployed. This naturally induced a general sense of failure and of anxiety

for the future. Also rates of crime and especially violent crime have continued to

increase in good times and bad times alike so that law and order has become a

central political issue though the political parties differ strongly in their interpreta-

tion of this problem and in their proposed remedies (see Davies, 1983).

It is necessary to provide this broad economic and political preamble since

British politics and especially British party politics are about economic rather than

moral issues. Britain is much more ideologically divided with strong conservative

and socialistic political traditions in contrast to America’s national ideology of

egalitarian individualism but shows less tendency to divide on single moral issues

in the way that, say, Prohibition in the past or abortion today has split America. The

moral disagreements about Britain’s obscenity laws that have arisen since 1979

must be viewed against this background.

There is fairly general agreement in Britain that the 1959 legislation on porno-

graphy is now unworkable but strong disagreements on party and ideological lines

as to how it should be reformed. The almost simultaneous failure of two measures

sponsored by back-bench MPs in 1986, viz. Winston Churchill’s Obscene Publica-

tions (Protection of Children, etc.) Bill, and Clare Short’s Indecent Displays (News-

papers) Bill is particularly striking. The failure of the former is the more noteworthy

since the British Parliament has always been ultra-zealous in defence of children as

can be seen from the rapidity with which it enacted the Children and Young Persons

Harmful Publications Act in 1955 against “horror” comics or the Protection of

Children Act of 1978 against child pornography or the legislation of 1984 against

““video nasties”. In the debates on both the 1986 Bills strong fears were expressed

about the marked increase in violence in British society and some attempts were

made to link this to pornography and to violent or offensive programmes on tele-

vision (see Hansard, 25 April 1986, col. 582-584). Had the various factions been

79 j55 8

willing to enter into a causalist compromise they might have been able to agree to

ban filmed material involving brutal violence and/or the casual use of force of fear

to overbear the will and consent of others. As one of us had already pointed out in

1975 (Davies, 1975, pp. 57-58) this is the weakest point in a causalist programme

for the complete liberalisation of pornography. Since then further research has sug-

gested (see Nelson in Yaffe and Nelson, 1982, pp. 191-194) one small sub-category

of pornography, i.e. films involving either unsympathetically or as wrenched into

eventual enjoyment may at times incite viewers to imitation and help to erode the

inhibitions that restrain most people from behaving in this way.

However, the right and left wing anti-pornography factions in the British Par-

liament chose rather to make moralist gestures of repudiation towards particular

institutions in the mass media that they found offensive for a mixture of political

and sexual reasons. In the case of the Obscene Publications Bill, the division be-

tween left and right that ensured a lack of comprehensive support and led to its

failure was over the question of whether it should apply to broadcasting and thus

place new legal constraints on the British Broadcasting Corporation, the independ-

ent Broadcasting Authority and the cable authority (see Hansard, 25 April 1986,

col. 572). The Conservatives were in favour of doing so and the Labour left-wingers

strongly against. In 1986 there was a great deal of animosity between the Conser-

vatives and the BBC over a libel action taken by two Conservative members against

those responsible for the television programme Panorama and over the BBC”s

coverage of the American bombing of Libya from British air bases with the consent

of the British government. These particular explosions came later but they were

rooted in the conviction often held by those of a conservative persuasion that tele-

vision and the BBC in particular is staffed by left-wing radicals who provide slanted

coverage. The BBC programmes that tend to cause the greatest scandal in conser-

vative circles are those that use the explicit depiction of sexuality to undermine

traditional views and values concerning the family, religion or sex roles. Indeed it

was this combination of sexuality and subversion that first kindled the anger of

Britain’s most famous anti-pornography campaigner Mrs. Mary Whitehouse who

has become well known for her persistent harrying of Britain’s broadcasters.

It is doubtful whether many Conservative MPs hold Mrs. Whitehouse’s values

in their pure form but in the 1986 debate on the bill to extend the Obscene Publica-

tions Act to broadcasting, many of them were prepared to use the accusation of

obscenity to attack the Godless radical broadcasters. However, they were in turn

immediately accused of advocating political censorship by their Labour opponents

(see Hansard, 25 April 1986, cols. 579 and 609).

In the parallel debate on the Indecent Displays Bill put forward by a group of

left-wing socialistic feminists the reverse happened with the Labour MPs demand-

ing censorship and the Conservatives defending the media. It provided a short but

significant debate for it was the first time that the feminists in Parliament had made

a serious and organised demand for the censorship of obscenity. Previously they

had played little part in the political campaigns for the censorship of pornography

which were dominated by the supporters of Mrs. Whitehouse. The Committee on

LM S

Obscenity and Film Censorship (1979, p. 88) concluded : “… the consensus of those

parts of the women’s movement from which we heard tended to attach greater im-

portance to freedom of expression than to the need to suppress pornography”. This

conclusion is not surprising for the crusade against pornography of Mrs. Whitehouse,

Lord Longford, Malcolm Muggeridge et al., was dominated by fervent evangelicals

and hard line Roman Catholics most of whom were also strongly anti-abortion (a

much more central issue for the feminists) and regarded criticism of the family or the

sanctity of marriage as evil and lesbianism as a vile and unnatural vice condemned

by Saint Paul (Romans, 1, 26). The comment of Professor A.W.B. Simpson who had

been a member of the Committee on Obscenity and Film Censorship are particularly

apposite : “… in Britain radical feminists tend to be associated with the political left

and are not all happy that they should end up in the same camp as such persons as

Mrs. Whitehouse who belongs somewhere well to the right… virtually everything

which has been produced by the radical feminist movement on the subject is Amer-

ican; there is virtually no independent home product” (Simpson, 1983, p. 67).

The failure of the British feminists to achieve the kind of political impact

regarding pornography that feminists have had elsewhere is partly the result of the

ideological polarization of British politics and partly because they are a relatively

small group and one that in the 1980s has been in decline. The older generation of

British feminists had tended to be against the censorship of obscenity because they

realised that such laws could be turned against themselves in the context of their

struggle to gain more sexual freedom for women through the spread of contracep-

tion and family planning clinics and the liberalization of the abortion laws. In

consequence they also tended to align themselves politically with libertarian re-

formers and centrist liberal and social democratic politicians such as Roy Jenkins

whose ideal was a civilized and tolerant society in which the law should not be

employed as an instrument of moral coercion. The most notable achievement of this

coalition was Britain’s liberal Abortion Act of 1967 (see Davies, 1980). However,

in the 1970s and especially towards the end of that decade a new group of feminists

appeared that was far more ideological and much further to the left. The two ten-

dencies that took over were Trotskyism and separatism, i.e. a refusal to collaborate

with men or take any part what they defined as a bourgeois and patriarchal political

system. Although there is very little political censorship in Britain and the machin-

ery for political repression is both weak and rarely used, the new feminists shared

with the Trotskyites a paranoid fear of the British state which they saw as moving

in the direction of a coercive police state with extensive powers to censor the views

of its opponents. In consequence although they had come to believe in the censor-

ship of obscenity (e.g. see comments in Coward, 1982), they were not willing to

agree to the granting of greater powers to the existing ‘“bourgeois and patriarchal”

state in order to achieve this end. Instead they took sporadic and criminal “direct

action” against individual sex shops by breaking their windows, spraying slogans,

etc. (see Thompson, 1988, pp. 14-15 and in press) culminating in a short march

through the Soho red light and porn shop district of London.

Direct action politics tends to be counter-productive in Britain because of the

existence of long-established elaborate and legitimate democratic system through

L TO

which pressure groups can express their views. Those who go outside the system

merely alienate legislators and public alike. However, by the 1980s British radical

feminism was a movement in serious decline (see Thompson, 1988, pp. 15 and

189-190 and in press) and therefore its leading members tended to choose tactics

of political action not by reference to their probable effectiveness but in order to

bolster the falling morale of their followers. The cause of the crisis in radical

feminism in the 1980s were two fold. Ever since Mrs. Thatcher came to power in

1979 the feminists’ adversaries had pushed the feminists back onto the defensive

culminating in David Alton’s nearly successful restrictive abortion bill of 1987-

1988 and the rules erected enacted in 1988 prohibiting local authorities from pro-

moting favourable attitudes to homosexuality, lesbianism and other alternatives to

traditional family life. This latter measure again led to counter-productive direct

action politics when three lesbians jumped with simian agility from the visitors

gallery of the House of Lords, swung on ropes about the assembled peers and nearly

collided with Black Rod. The second set of problems the radical feminists face

stems from their position as individuals, who belong to a declining social class

rather like the indignant declining small-town small-business class that has been

identified with the symbolic politics of status discontent in the United States (e.g.

see Gusfield, 1963; Zurcher and Kirkpatrick, 1976). The British radical feminists

are often educated and qualified but not in areas for which there is any great market

demand. The Conservative government in power after 1979 cut the number of jobs

in the state-run educational and health systems in which radical feminist graduates

had hoped to obtain employment. There is now in Britain formal occupational

equality for women but there are very few opportunities for anyone in those sectors

to which the radical women are attracted and so they tend to get trapped in low-

status jobs for which they think they are over-qualified and which are frustratingly

below their former high hopes and expectations. It is a classic case of status depri-

vation generating moral protest but their protest has achieved next to nothing except

indirectly within the Labour Party where co-opted feminists succeeded in embar-

rassing and in the end silencing the old style anti-censorship radicals such as Mi-

chael Foot.

Although the feminists may have gained in sectarian political influence they

have lost public support not because people are hostile to the principle of women’s

rights and equality of opportunity, but because of the embarrassing visibility of the

far left and lesbian groups that are in control of the movement in certain inner-city

areas. They remain a major vote-loser for the Labour Party whose leaders are now

seriously worried about the decline in support for Labour among socially conserva-

tive blue-collar workers and Roman Catholics.

At the national level it is this ideological clash that lies behind the failure of

the Labour MP, Claire Short’s 1986 Bill “to make illegal the display of pictures of

naked or partially naked women in sexually provocative poses in newspaapers”. Ms

Short in a well interrupted speech said “They (a group of women in an office who

had written to her) considered themselves to be young and attractive but every day

they were subjected to men reading such newspapers in the office and to them

tittering and laughing and making rude remarks such as “Show us your page threes

then”. Such women feel strongly that this Bill should be enacted (laughter). Con-

servative members display their attitudes for everyone to see and will be judged

accordingly…. Many of the letters that I received came from mothers with small

children who said that they felt that page three undermined their efforts to instil

decent attitudes in their children. Many of them commented time and again on the

front-page stories of nasty newspapers such as The Sun — (Interruption). It is the

nastiest… Those pictures portray women as objects of lust to be sniggered over and

grabbed at and do not portray sex as something that is tender and private. When

future generations read that in our day about 10 million newspapers carried such

pictures every day to be left around and seen by children and by lots of women

who did not want to see them, they will see those pictures as symbolic of our

decadent society. That is why we should take action to make them illegal” (Hansard,

12 March 1986, col. 939-940).

Claire Short’s reference to The Sun a right-wing newspaper with a predomi-

nantly lower-class readership of several million is once again a reminder of the

strong left versus right divide in British politics. The Sun as a tabloid newspaper

owned by an Australian and aimed at the blue-collar market, naturally employs the

coarse but successful formula of sex, sport, slogans and sensation. “The Page Three”

(ie. you see it as soon as you turn the front page) is dominated by a large photo-

graph of a very well-endowed ‘“‘naked or partially naked woman” intended to give

its male readers a trip down mammary lane. The front page story tends to feature

either a sensational crime or the celebration of a royal event or national victory.

Much of the rest is sport of various kinds. It is an extremely popular paper among

the working classes, but this is of course the group from which the Labour Party

seeks to recruit support for socialism and feels thwarted because they prefer to buy

à tabloid of strongly right-wing views. The Sun is a fiercely belligerant newspaper

and far from being cowed by feminist criticism, its editors and writers have in their

turn bullied the feminists with sarcastic attacks and ridicule. Hence Ms Claire

Short’s attempt to use Parliament as an anti-Sun forum (see also Ms Short’s ques-

tion to Mrs. Thatcher the Prime Minister; Hansard, 25 March 1986, col. 785). The

response of the Conservative MPs was as usual a rude and ribald one.

The Labour MP, Mr. lan Mikardo, in the course of a speech against the Bill on

Obscene Publications which was supported by the Conservatives, subsequently re-

minded them that “In one respect obscenity is like beauty, it lies in the eye of the

beholder. The line between prudery and prurience is very narrow and wobbly. We

saw some evidence of that a few weeks ago when my Hon. Friend the Member for

Birmingham, Ladywood (Ms Short) moved a motion to introduce a Bill on a subject

very much cognate with the Bill before us. On that occasion a number of Conserva-

tive members behaved disgracefully and those hon. Members are supporters of

today’s Bill. They behaved in such a way as perfectly to illustrate the narrow boun-

dary between prudery and prurience. They giggled in lascivious recall of what they

had seen on page three of The Sun that morning” (Hansard, 25 April 1986, col. 616).

Yet just as Mr. Mikardo had accused the Conservatives of wanting political

censorship of broadcasting under the guise of penalising obscenity, so too the Con-

0 u

servatives returned the argument in opposing Ms Short’s Bill. The Conservative

MP, Mr. Robert Adley declared (Hansard, 12 March 1986, col. 940) : “The Hon.

Member for Birmingham Ladywood (Ms Short) is a prominent supporter of

women’s rights and her speech was a titillating mixture of politics, prejudice and

prurience… It is fascinating to consider who will decide whether a women is or is

not partially naked and whether her pose is or is not sexually provocative. The Hon.

Lady referred to The Sun and to Mr. Murdoch. I noticed that she did not refer —

it happened by chance, I am sure — to the Daily Mirror (another vulgar tabloid but

to the left of The Sun)… The Hon. Lady does less than justice to her fellow citizens.

She would have our newspapers resemble Pravda. That would be more in keeping

with some of her own political views. Where do we go from here? When the Hon.

Lady has dealt with the newspapers and expunged from them everything that she

finds objectionable, perhaps she and Mr. Livingstone will go round the parks of

London doing away with all the statues that she thinks might deprave people… The

trouble with the Hon. Lady, and those who think like she does, is that she tends to

mix only with those who share her views. To suggest seriously, as she does, that

these pictures are offensive to the overwhelming majority of women is inaccurate.

I suggest that they are offensive to the overwhelming majority of those with whom

the Hon. Lady is in touch, which is not the same thing at all”.

In the end, Claire Short’s initiative, like the Conservative-backed 1986 Obscene

Publications Bill, collapsed confirming the point that there is no longer in Britain

any common standard of offensiveness to define what constitutes pornography.

Both the Conservative traditionalists and the Labour feminists sought, in theory at

least, to employ very wide definitions of obscenity that would censor out of ex-

istence large areas of contemporary British popular culture. Both groups are, though

in quite incompatible ways in total and fundamental opposition to the culture of the

age in which they live (see Morrison and Tracey, 1980, pp. 11-12; Morrison and

Tracey, 1978, p. 53). So far neither have proved able to mobilise enough support

to challenge the assumptions of that culture, despite the uncertainty, fear and anomie

generated by Britain’s prolonged economic difficulties and descent into violent

lawlessness that have come as an unpleasant shock to a people who once thought

of themselves as the workshop of the world and a model of orderliness. In future

there may come about a cynical alliance between NVALA and the feminists as in

Minneapolis or Britain, may experience a prolonged cultural wrangle between

groups unable even to understand their opponents or there may be a cautious return

to the causalist principles of 1959-1979. At the moment neither the liberal causalists

nor the traditionalist moralist censors nor the radical feminists censors are powerful

enough to make their own particular view of pornography prevail. The vast majority

of the British population are quite indifferent for they have other more immediate,

material concerns to worry about and ultimately it is these that will determine who

gains power and in consequence which group, if any, attains a position of hegemony

that will enable it to impose its particular view of pornography and of censorship

on the British people as part of a more general ideological package. If Mrs. Thatcher

and the Conservatives remain in power they may well decree a tougher set of

censorship laws based on the traditionalists’ strong dislike of pornography. This

could be done either by making the test of pornography its offensiveness to tradi-

sH-

tional values rather than a tendency to deprave and corrupt or by calling together a

body of opinion commanding diffuse respect in Conservative circles (a carefully

selected group of police chiefs, prosecuting lawyers, clergymen, etc.) that will de-

clare authoritatively that pornography causes crime without having to measure or

demonstrate the fact. Political journalists (Brown, 1986; Weeks, 1986) have long

predicted this but there are also tensions within the Conservative Party between the

Tory traditionalists and those who believe in laissez-faire and a minimum of state

intervention. The split in the Conservative Party over the issue of the expansion of

Sunday Trading which the free marketeers want and the evangelical Protestant

lobby does not, illustrates the nature of these tensions. À similar division of opinion

exists in relation to pornography and the only issue on which the two groups are

likely to agree completely is in regard to the need for the censorship of sex-educa-

tion materials used in state schools which are often subversive of traditional family

life.

B. Greece : The paradox of the macho majority

In Greece censorship of all kinds has been especially strong during periods of

military dictatorship including the colonels’ regime of the periode 1967-1974.

However, it is not easy to document with any great precision the extent and nature

of censorship during the seven years when the colonels ruled since :

a) The colonels abolished official censorship in October 1969, so as to give

the appearance of freedom of speech and to deflect criticisms of the regime, but

continued to exercise an informal de facto preventive censorship. The army officers

directly responsible would make “unofficial” phone-calls to publishers and editors

threatening them with prosecution under the State of Siege Law A (1911) even

though the particular state of siege had been unlawfully declared (according to the

constitution only parliament has the right to declare such a state of siege). The

statute of 1911 which they thus exploited contained imprecise and “catch all” pro-

visions against ““unpatriotic activities” and actions that undermine “sound prin-

ciples”. The vagueness of the law and the indirect and informal way in which the

censors employed it, make it almost impossible to establish what exactly happened

in any particular case.

b) After the collapse of the colonels dictatorship, all the relevant records and

documents seem to have rapidly and mysteriously disappeared from the offices

where the censors had their headquarters.

Since the time of the dictators a number of certain key political changes in

Greece have quite altered the climate in which the debates on pornography take

place. The first of these was the restoration of democracy in 1974 and the second,

the electoral victory of the socialist party PASOK in 1981. After the collapse of the

colonels’ regime in 1974 it was strongly argued by many supporters of democracy

that there should be a decriminalization of pornography or at least a major reduction

in the scope of the criminal law in this area. Such arguments were based on a strong

and widespread popular rejection of any kind of censorship and paternalism, for this

was associated in the public mind with the disliked and discredited regime of the

2198 —

colonels. The establishment of full freedom of expression and a strict restriction of

the powers of the relevant agencies of social control were seen as vital aspects of

democracy. Andreas Papandreou the Prime Minister declared roundly that “Social-

ism and censorship are incompatible” in the course of an official meeting with

Greek intellectuals.

During the same period and especially after the election of the Socialist

Government, the feminist movement emerged for the first time as a strong and

important pressure group in Greece. Marangopoulos (1986) has specifically iden-

tified the year 1975 and the years after 1983 as two of the most significant periods

in the evolution of the Greek feminist movement. It has in recent years often been

observed that whereas in the past women had their ballot paper filled in for them

in advance by their fathers or their husbands, since 1974 they have been much more

willing and able to participate directly in politics and even to seek election to

Parliament (Pantazi-Tzifa, 1984, p. 80). The number of women standing for Parlia-

ment in the 1981 election was far greater than in any previous Greek election.

In consequence women’s rights now came to occupy a relatively high position

on the agenda of the Socialist politicians. The previous system of family law whose

provisions were explicitly based on the assumption of male superiority was re-

formed, the legal provision for dowries was abolished and women were enabled to

retain their maiden name after marriage. Women were encouraged to take paid

employment in the labour market, abortion was made legal and books and texts used

in schools were deliberately re-written so as to be compatible with the principle of

equality of the sexes. For the first time in Greek history some provision was made

for the rights and welfare of unmarried mothers and female agricultural works were

now given independent social insurance rights of their own. Stamiris (1986, p. 109)

even goes so far as to say that Greece had become noted for its outstandingly

progressive public policies for women.

Whereas it had been thought stigmatizing in many social circles for a woman

to belong to a feminist organization, attitudes now began to change mainly because

so many women’s groups were affiliated to particular political parties and ‘“‘male

party members or sympathizers found it difficult to oppose the recruitment of their

wives and daughters into what they considered as the party>s women’s group”

(Stamiris, 1986, p. 107). In consequence the number and the membership of femi-

nist organisations markedly increased and their geographical distribution became

wider. Margaret Papandreou the wife of the Prime Minister became the head of

E.G.E. (The Union of Greek women) one of the biggest and most influential of the

Greek feminist organisations which claims to have over 20,000 members. Other

significant organisations include O.G.E. (The Federation of Greek women) which

is ideologically affiliated to the Communist Party (Moscow line) and the K.D.G.

(Democratic Women’s Movement) which is linked to the Communist Party (interior

or Eurocommunist). With the exception of a few marginal groups utterly lacking in

power and influence, the members of the feminist movement were in favour of

maintaining and enforcing the existing laws against indecency and pornography.

Pornography was regarded by most Greek feminists as degrading to women and

EfNody 2s

censorship as performing a positive function by restricting and preventing its cireu-

lation. However, the restraining of pornography was not a high priority for the

Greek feminist movement and opposition to it has not been pursued with the same

vigour and determination as other feminist causes. This is very understandable given

that the stifling of feminism during the period of the colonels’ dictatorship meant

that after their downfall there were many other far more significant and urgent

changes in Greek society that the feminists wished to achieve. Even more important

the women’s movement which emerged after the restoration of democracy was

“integrally connected with the wider context of progressive politics” (Stamiris,

1986). It was this affiliation to political parties that legitimated the mobilisation of

women in Greek politics.

The major and most influential contemporary feminist organisations in Greece

are essentially outgrowths of the political parties of the left whose members for

reasons rooted in Greek history associate any kind of censorhip with strongly

authoritarian and anti-democratic right-wing regimes. Greek feminists have noted

that the same colonels’ dictatorship which “liquidated progressive women’s or-

ganisations and codified the hegemony of chauvinist values” (Stamiris, 1986,

pp. 103, 105) also exercised strict censorship against pornography. It is also impor-

tant to note that, as we shall see later, both anti-feminism and censorship in Greece

stem from traditional attitudes relating to female chastity and family honour. In

consequence, although there is a good deal of similarity between the political posi-

tion of the feminists in Greece and in England the social institutions and the atti-

tudes to which their respective feminist movements are opposed are very different

and this has important implications for a comparative analysis of responses to por-

nography in the two countries or indeed more broadly between Mediterranean and

Northern Europe.

Attitudes towards pornography in modern Greece are shaped by the sentiments

of what, for want of a better term, may be described as the “macho majority”. In

Greece the honour of the family has traditionally been represented by female

chastity which is ““entrusted to the vigilance of fathers and brothers against the

corruptability of women’s nature” (Stamiris, 1986, pp. 103-104). Yet curiously

enough the very fact that women were so inaccessible and so closely guarded gave

rise to a glorification of the man with the ability to overcome such formidable social

obstacles and to become a successful seducer. Greek sexual morality was thus

atomized rather than corporate in character. Each and every male was expected

fiercely to defend the honour of the women of his own family while at the same

time seeking to obtain glory by subverting the honour of all other families. Every

man was a gamekeeper to his own estate and a poacher of others’. In consequence,

masculinity, skill in seduction and success in the acquisition of sexual partners are

of paramount importance to males in Greece and, indeed, in many other Mediter-

ranean countries. À characteristic expression of this attitude is the phenomenon of

the “kamakia” (harpoons), the young Greek males who every summer compete with

each other to see who can seduce the largest number of visiting female tourists in

seaside resorts and elsewhere. In this way they seek to assert and demonstrate their

masculinity and thus to gain prestige within their peer group.

s105*

A corollary of phenomena such as this is the existence in modern Greece of an

exceptionally strong taboo against masturbation. Masturbation is not only con-

demned as indeed it has been elsewhere as an a-social solitary practice that violates

à religious prohibition and has a debilitating physical effect, but is also regarded as

indicating a contemptible inability to acquire sexual partners. The most commonly

used terms of insult in the vocabulary of Greek males are those which refer to

self-abuse, a phenomenon that is invariably a subject of scorn and ridicule. M.

Koukoule in the introduction to her collection of bawdy Greek limericks, obscene

jokes and abusive expressions, has noted the very marked overpresentation of offen-

sive words and expressions referring in some way to solitary vice (Koukoule, 1984).

In Greece pornography is commonly regarded as being purchased in order to

provide stimulating material fcr masturbatory phantasies, and in consequence no

self-respecting male would dare openly to buy let alone publicly to defend porno-

graphy. Indeed, in recent debates on pornography and the law, one can find innuen-

dos to the effect that those men in favour of a relaxation of the criminal law in this

area are probably “closet masturbators”. One Greek public prosecutor has even gone

so far as to argue that cinema clubs with a license to show pornographic films could

never really be successful in Greece since no one would ever be willing to be known

to be a member of such an “Ophthalmopornic” club (Sideris, 1984, p. 105). Thus

a man’s enjoyment of pornography aimed at a male audience far from being per-

ceived as an indication of “macho” qualities, in line with the conventional feminist

thesis is usually regarded as quite the opposite, since it implies his inability to

acquire sexual partners or that he finds it difficult to perform the sexual act without

the artificial stimulation provided by such books, pictures or other materials. This

may well be the reason why in the Scandinavian countries where men are far more

likely to treat women with the respect accorded to equals than is the case in Greece

and other Mediterranean countries, there is also a greater public acceptance of

pornography. The Greek evidence clearly demonstrates that an absence of public

support for pornography among men is very far from indicative of the presence of

egalitarian attitudes towards women.

3. Studying the effets

According to Greek legal thinking as outlined earlier, the definition of inde-

cency does not depend on the tendency of the relevant materials to deprave and

corrupt. This may explain the total lack of empirical research on the psychological

and social effects of pornography in Greece. Krippas, for instance, one of the most

vigorous contemporary Greek writers on the subject makes lengthy reference to

research findings in Germany, England and elsewhere, but in support of his argu-

ments that pornography has harmful consequences within Greece itself is only able

to refer to newspaper reports of three Greek court cases in which is was alleged that

pornographic films had been connected with the commission of sex offences.

In a case heard in February 1978 it was alleged that “a man did to his brother

what he had seen in a porno movie” and in a further case heard in March 1985 it

86 &

was suggested that “a porno-film inflamed the passion of a 28 year old man and

led him to assault a 17 year old newly wed woman in an elevator”. In the third case

cited by Krippas, four persons were arrested for having sexual intercourse inside a

cinema showing pornographic films (Krippas, 1986). However, no systematic re-

search has been carried out to establish what effects pornography may have nor in

relation to the central legal issue concerning pornography in Greece, i.e. what is it

that the Greek public does in fact find offensive, shocking or embarrassing. There

is clearly a need for properly conducted research which would examine these ques-

tions and would test the degree of correspondence or lack of correspondence be-

tween Greek public opinion and judicial attitudes.

The pattern of values, institutions and modes of decision-making in Greece are

such that the question of the potential effects of pornography in triggering or inhib-

iting sexual assaults and offences is clearly irrelevant. In consequence there has

been little empirical research in Greece into these issues. In Britain by contrast the

consideration of the nature, direction and extent of the influence of pornography on

behaviour has often been a central factor in political discourse. Detailed compari-

sons have been made not only over time but between Britain and other comparable

countries.

The British Committee on Obscenity of 1979 considered three kinds of effects

studies which were classified as (i) Anecdotal and clinical; (ii) Experimental and

(iii) the statistical analysis of trends in known crime relative to the varying availa-

bility of pornography. (See Report of Committee on Obscenity, 1979, p. 61).

Under the first heading the Committee noted :

“We discussed these matters with a number of psychiatrists and psychologists

including some with special experience of the treatment of offenders but we were

struck by the fact that none of them was able to tell us of a case in which they had

experience there was evidence of a link between pornography and a violent sexual

crime” (Report of Committee on Obscenity, 1979, pp. 62-63). “… Given the amount

of explicit sexual material in circulation and the allegations often made about its

effects, it is striking that one can study case after case of sex crimes and murder

without finding any hint at all that pornography was present in the background”

(Report of Committee on Obscenity, 1979, p. 63). The Committee also noted that

if one were to try to eliminate sexual and/or violent stimuli in order to prevent actual

events from being influenced by what people read or see, the net would have to be

cast impossibly wide (see Report of Committee on Obscenity, 1979, pp. 63-65). “It

was, for example, a televised version of The Brothers Karamazov which was said

to have influenced a young man to attempt to kill his parents with a meat cleaver

in 1976 and it was the American television series Roots which was alleged to have

prompted a Jamaican in London to rape a white women” (Report of Committee on

Obscenity, 1979, p. 65).

In assessing the psychologists’ experimental data on the effects of pornogra-

phy, the British Committee considered both the studies undertaken for the United

States Commission on Obscenity and Pornography of 1970 and the subsequent

criticisms of these studies (e.g. Cline, 1974). In general the members of the Com-

mittee were very dubious about the validity and value of such experimental studies

on methodological grounds.

“It seemed to us right to be sceptical about attempts to apply the lessons of

these laboratory experiments to real life and we, therefore, preferred the more

non-commiital view taken, in particular by Brody. We consider that the only

objective verdict must be one of ‘not proven”” (Report of Committee on Ob-

scenity, 1979, p. 68. See also pp. 65-66).

The British Committee paid far greater attention to studies involving the analy-

sis of crime statistics (Report of Committee on Obscenity, 1979, pp. 71-86), and

pondered the difficulties posed by the “dark figure of crime” that is unreported and

unrecorded crimes together with the problem that reporting and recording rates may

vary over time and between countries which means that it is not easy to make

comparisons or to discern trends. They also admitted that it was difficult to measure

the availability of pornography and questionable to infer causes from mere correla-

tions. The Committee provided its own analyses of the British statistics (see Report

of Committee on Obscenity, 1979, p. 72) taking a longer time perspective than had

been the case in earlier studies and looking at trends in recorded sexual offences in

relation to corresponding trends for offences against the person generally.

From 1946 to 1959 when pornographic materials were not easily obtainable or

widely available, there was a steady rise in reported sexual offences in Britain but

this levelled off between 1959 and 1966 at precisely the time when there was an

increase in the availability of pornographic materials. A further rise in sexual of-

fences occurred between 1966 and 1973 and there was then a steady fall until 1977.

In an independent study examined by the Committee, Helena Campbell had also

demonstrated that the growth in the availability of sexually explicit materials in

Britain coincided with a marked deceleration in the otherwise rising trend of re-

ported sexual offences. This pattern is in total contrast to the trend for offences

against the person in general or for robbery, both of which grew steeply and almost

continuously from 1955-1979. In either case the extent and the rate of the increase

of these non-sexual violent crimes has been so marked that it must be a real phe-

nomenon and not a mere artifact of increased reporting and recording. Roughly

80,000 offences against the person and 12,000 robberies were reported per annum

in Britain in the mid 1970s and 25,000 sexual offences including about 12,000

indecent assaults on a female and about 1,200 rapes were also reported (see Report

of Committee on Obscenity, 1979, pp. 72-78). Britain was (and is) a much more

violent society than it had been in the immediate past (see Davies, 1983). Since the

Second World War the number of sexual offences recorded by the police has

changed as a proportion of all indictable offences with a rise from 2% in 1946 to

nearly 4% in 1955 but then a steady decline to less than 1 % in 1977 and 1978.

Reported rape cases have tended to rise roughly in line with indictable offences as

a whole and there were 5 times as many reported cases in 1978 as in 1946 but this

is a much smaller increase than for reported offences against the person generally

where there was a more than twenty-fold increase. If rape and sexual assaults are

taken together as a proportion of all recorded indictable offences either for England

and Wales or for London alone, there is a striking rise from the end of the Second

World War to the mid 1950s and then a steady fall for the next twenty years. On

the basis of the above data, the British Committee on Obscenity felt able to declare

that : “we unhesitatingly reject the suggestion that the available statistical informa-

tion for England and Wales lends any support to the argument that pornography

acts as a stimulus to the commission of sexual violence” (Report of Committee on

Obscenity, 1979, p. 80).

The British Committee on Obscenity also examined carefully the Danish crim-

inal statistics before and after the decriminalisation of pornography in that country,

together with the empirical studies of reporting and recording rates made by the

distinguished Danish criminologist Berl Kutchinsky (1973b and 1978) and the criti-

cisms of this work that had been made by the South Australian psychologist John

Court who was also the Chairman of the Australian Festival of Light. They agreed

with Kutchinsky that there had been a marked fall in the main urban areas in the

incidence of most heterosexual sex crimes after 1966. They obtained recent official

data on the incidence of rape and attempted rape from the Police Commissioner for

Copenhagen and endorsed Kutchinsky’s view that there was no visible trend either

up or down in the incidence of these particularly serious crimes of sexual violence.

In Copenhagen, the capital of Denmark, a city whose population is about one

million, about 30 rapes were recorded each year in the 1960s and 1970s (see Report

of Committee on Obscenity, 1979, p. 82 and Kutchinsky, 1973). There may well

be a degree of under-reporting and under-recording, but it is unlikely that the real

incidence of rape is more than a tiny fraction of what it is in other more puritanical

countries such as the United States where reported rates of rapes in cities of a similar

size are often well over 500 per year. The apparent fall in the rate of more minor

sexual assaults or of sexual exhibitionism in Denmark, may be due to a decreased

readiness to report largely because the victims often regarded these incidents as too

trivial to think them worth reporting. However, Kutchinsky says quite emphatically

that the decline in peeping and in indecent assaults on children could not be ex-

plained by a change in reporting behaviour and that a dramatic and real reduction

in such incidents took place after pornography (including child pornography) be-

come freely available (Kutchinsky, 1973b, 1978). No one has yet been able to

provide a satisfactory alternative explanation to Kutchinsky’s thesis that pornogra-

phy is a substitute for molestation. The British Committee concluded cautiously that

““While Dr Kutchinsky’s explanation cannot be conclusive, we have to admit that it

is plausible” (Report of the Committee on Obscenity, 1979, p. 84).

The British Committee discussed the Danish data at great length because they

saw it as having a particular relevance to Britain where no aggregate studies of this

degree of thoroughness have been carried out. Indeed it is doubtful if they could be

for there have been no clear and sudden legal changes abolishing all legal restric-

tions as there were in Denmark. In Britain there has merely been a gradual weak-

ening of the prohibitions against pornography. Also the fact of and the

consequences of the legal changes in Denmark are well known in Britain though in

a crude and imperfect form and Danish witnesses have sometimes testified at British

trials. The increasing reluctance of British juries to convict pornographers for pub-

SE T») ps

lishing obscenity may well be in part determined by the view that the free availa-

bility of pornography has not visibly depraved and corrupted the Danes.

CONCLUSION

Our main conclusions have been incorporated in the text where we have de-

monstrated both certain similarities in the dynamics of the response to pomography

in Greece and Britain and also distinctive cultural differences in the nature of the

responses which are rooted in the particular histories and traditions of the two

societies. It is only necessary, therefore, briefly to recapitulate our main findings

and tentative hypotheses.

1. The key to an understanding of Greek attitudes is the central concept aidos

which since ancient times has dominated Greek discourse concerning obscenity. In

Britain by contrast the key phrase “to deprave and corrupt” has undergone a subtle

change of meaning and is now often interpreted as expressing a form of negative

utilitarianism rather than moral outrage. We can see here one aspect of a very

general long-term change in the relationship between law and morality in Britain.

2. In Greece feminists have recently gained in power and influence partly as

a consequence of their affiliation with left-wing political parties that have formed

the government. Their political position and priorities are such that they have not

pressed hard for the active censorship of pornography even though most of them

object to it. Their opponents in Greece’s macho majority are not in the main willing

publically to defend pornography which is associated in the popular mind with

patterns of self-abuse regarded as inappropriate for a truly dominant male person.

In Britain the ideological polarisation of politics has seen an alliance between

feminists and the far left but both are out of office and thus relatively powerless.

The visible direct action tactics of the feminists have had little effect and are a

symptom of a movement in decline that needs to rally the morale of its members.

Within the British Parliament both conservative and radical groups have sought to

impose new forms of censorship of obscenity but there is so little common ground

between them that they have been unable to agree or to enact new legislation.

3. Given the Greek concern with aidos the issue of whether pornography in-

cites its readers to commit crimes or not is largely irrelevant and in consequence

there is an absence of research on the subject. In Britain by contrast the question of

whether pornography affects behaviour is a central one and there has been a careful

scouting both of the British criminal statistics and of empirical research conducted

in other countries to try to ascertain the nature and direction and strength of any

such link. In general it may be said that no such connection has been demonstrated.

It is doubtful whether any benefit can be derived from the setting up of new

research projects involving expensive surveys carried out in one country or repli-

cated in another. Rather what is needed is an extension of the kind of comparative

analysis we have used here so as to include other nations and in each case to locate

responses to pornography in the context of distinctive national cultures and tradi-

tions.

BIBLIOGRAPHY IN ENGLISH

ARISTOTLE, “Ethica Nicomache”. In The Works of Aristole translated into English by W.D.

Ross, Clarendon Press, Oxford, 1925.

ARMYTAGE, W.H.G., CHESTER R. and PEEL, John, Changing patterns of sexual behaviour,

London Academic, 1980.

BHARGAVA, G.S., Indira’s India Gate, New Delhi, Arnold Heinemann, 1977.

BLocK, Walter, Defending the Undefendable, New Yor, Fleet, 1976.

BORCHARDT, R. (ed.), Four Dialogues of Plato, including The Apology of Socrates (translations

and notes by John Stuart Mill), Watts & Co., London, 1946.

BRANDON, Ruth and Davies, Christie, Wrongful Imprisonment, London, Allen and Uvwin,

1973.

BRrODY, Stephen, Screen Violence and Film Censorship, Home Office, Perusal Study No. 40,

London, H.M.S.O., 1977.

BROKHIN, Yuri, Hustling on Gorki Street, London, W.H. Allen, 1971.

BROWN, Colin, Thatcher supports obscenity reforms, London, The Independent, 4 November,

1986.

CHAMBERS, Twentieth Century Dictionary, edited by A.M. Macdonald, W.R. Chambers Ltd,

1977.

CHAPPELL, Duncan, GEIS, Robley and GEIs, Gilbert (eds), Forcible Rape, New York, Columbia

UIBS1977E

CLELAND, John, Fanny Hill : Memoirs of a woman of pleasure, London, Luxor, 1964, 1748.

CLINE, V.B., Where do you draw the line, an exploration into media violence pornography

and censorship, Provo, Utah, Brigham Young U.P., 1974.

COCHRANE, F., Sex Crimes and Pornography revisited, International Journal of Criminology

and Penology, 6, pp. 307-317, 1978.

Cook, M. and WiLson, G. (eds), Love and Attraction, Oxford, Pergamon, 1979.

COwARD, Rosalind et al., What is Pornography? the opposing feminist’s viewpoints, Spare

Rib, June, 1982.

Cox, Barry, SHIRLEY, John, SHORT, Martin (eds), The Fall of Scotland Yard, Harmondsworth,

Penguin, 1977.

DAVIES, Christie, Permissive Britain, Social Change in the Sixties and Seventies, London,

Pitman, 1975a.

DAVIES, Christie, Mrs. Gandhi’s Watergate, Daily Telegraph, London, 27 June, 1975b.

DAVIES, Christie, Corruption versus competition : the British experience, New Quest, No. 12,

pp. 383-392, 1978a.

DAVIES, Christie, How our rulers argue about censorship. In

Rajeev Dhavan et al. (eds),

pp. 9-36, 1978b.

DavIes, Christie, Can High Taxation be Enforced? In

Arthur Seldon (ed.), Tax Avoision,

London IEA, 1979.

DAVIES, Christie, “Moralists, causalists, sex. Law and morality”. In : W.H.G. Armytage et al.

(eds), pp. 12-43, 1980.

DAVIES, Christie, Crime, Bureaucracy and Equality, Policy Review, 23, Winter, pp. 89-105,

1983.

sOIR * -

Davies, Christie and TRIVIZAS, Eugene, Tactics of Legal Reform : Learning from the recent

past, Howard Journal of Criminal Justice, vol. 25, No. 1, February, pp. 25-32, 1986.

DHAVAN, Rajeev and DavIEs, Christie (eds), Censorship and Obscenity, London, Martin Ro-

bertson, 1978.

DWIVEDY, Surendranath and BHARGAVA, G.S., Political Corruption in India, New Delhi, Po-

pular, 1966.

FINDLATER, Richard, Banned! Theatrical Censorship in Britain, London, Panther, 1968.

FINER, S.E., BERRINGTON, H.B., BARTHOLOMEW, D.J., Backbench opinion in the House of

Commons 1955-1959, Oxford, Pergamon, 1961.

FRIDAY, Nancy, My secret garden, women’s sexual fantasies, London, Quartet, 1976.

GUMMER, John Selwyn, The Permissive Society, London, Cassell, 1971.

GUSFIELD, J.R., Symbolic crusade : status politics and the American temperance movement,

Urbana Illinois, University of Illinois Press, 1963.

HEsiop, Works and days (edited with prolegomena and commentary by M.L. West), Oxford,

Clarendon, 1978.

HoLBROOK, David (ed.), The case against pornography, La Galle Illinois, Library Press, 1973.

HUNNINGS, Neville Mark, Film censors and the law, London, Allen and Unwin, 1967.

JOWETT, B., The Dialogues of Plato, vol. I, Oxford, Clarendon, 1892.

KAISER, Robert F., Russia, the people and the power, New York, Pocket, 1976.

KRUEGER, Anne O., The Political Economy of the Rent Seeking Society, American Economic

Review, vol. 64, No. 3, pp. 241-303, 1974.

KUTCHINSKY, Berl, Eroticism without censorship, Sociological investigations on the production

and consumption of pornographic literature in Denmark, International Journal of Crimi-

nology and Penology, vol. 1, pp. 217-225, 1973a.

KUTCHINsKY, Berl, The effect of easy availability of pornography on the incidence of sex

crimes : the Danish experience, Journal of Social Issues, 29(3), pp. 163-181, 1973b.

KUTCHINSKY, Berl, Pornography in Denmark — a general survey in R. Dhavan et al., pp. 111-

126, 1978.

LAMBIRI-DIMAK], J., The changing position of women in Greece. In Z. Tzannatos (ed.), Socia-

lism in Greece, Gower, London, 1986.

LAWRENCE, D.H., Lady Chatterley's Lover, Harmondsworth, Penguin, 1960.

LIDDELL and SCOTT, Greek-English Lexicon (Revised and enlarged edition), Oxford, 1958.

Longford Committee, The Longford Report on Pornography, London, 1972.

MCCLINTOCK, F.W. and AVINSON, N. Howard, Crime in England and Wales, London, Heine-

mann, 1968.

MACNAMARA, Donal E.J. and SAGARIN, Edward, Sex, crime and the law, New York, Free

Press, 1977.

Z. Tzannatos

MARANGOPOULOS, A., Some aspects of the legal status of Greek women. In

(ed.), Socialism in Greece, Gower, London, 1986.

MARK, Sir Robert, Minority Verdict, London, B.B.C., 1973.

MARTIN, Bernice, À Sociology of Contemporary cultural change, Oxford, Basil Blackwell,

1981.

MILNE, Edward, No shining armour, London, John Calder, 1976.

Minutes of evidence taken before the Select Committee on the Obscene Publications Bill,

London H.M.S.0. (See also corresponding Report), 1958.

MORRISH, Reginald, To whom ye yield, London, Lord’s Day Observance Society, 1959.

MORRISON, David and TRAacEY, Michael, Beyond Ecstasy : Sex and Moral Protest. In W.H.G.

Armytage et al., pp. 1-12, 1980.

MORRISON, David and TRACEY, Michael, American Theory and British Practice : The Case of

R

Mrs. Mary Whitehouse and the National Viewers and Listeners Association. In

Dhaven et al. (eds), pp. 37-54, 1978.

E IODRRES

PARDOE, R. and J., The female pope, Crucible, London, 1988.

PLATO, Protagoras and Meno (translated by W.K.C. Cuthrie), Penguin books, 1975.

REMBAR, Charles, The end of obscenity, New York, Bantam, 1969.

Report of the Commission on Obscenity and Pornography, New York, Bantam, 1970.

Report from the Select Committee on Obscene Publications, London, H.M.S.O. (see also

minutes), 1958.

Report from the Joint Committee on Censorship of the Theatre, London, H.M.S.O., 1967.

Report of the Committee on Obscenity and Film Censorship, Cmnd 7772, London, H.M.S.0.,

1979.

RICHARDS, P.G., Parliament and Conscience, London, Allen and Unwin, 1970.

ROBERTSON, Geoffrey, Obscenity, An account of the Censorship Laws and their Enforcement

in England and Wales, London, 1979.

RoLpH, C.H., The Trial of Lady Chatterly, Harmondsworth, Penguin, 1961.

SIMMS, M. and HINDELL, K., Abortion Law Reformed, London, Peter Owen, 1971.

SIMPsON, A.W.B., Pornography and Politics, London, Waterlow, 1983.

SINCLAIR, Andrew, Prohibition, London, Four Square, 1965.

SPARROW, John, Regina v Penguin Books Ltd, an undisclosed element in the case, Encounter,

February, vol. 28, No. 2, pp. 35-43, 1962.

STAMIRIS, E., The women’s movement in Greece, New Left Review, No. 158, 98-112, 1986.

SUTHERLAND, John, Offensive Literature, Decensorship in Britain 1960-1982, London, Junc-

tion, 1982.

TANNAHILL, R., Sex in History, London, Abacus, 1981.

TOMKINsoN, M., The Pornbrokers, London, Virgin, 1982.

TZANNATOS, Z., Comment on women’s legal status and changing position in Greece. In : Z.

Tzannatos, Socialism in Greece, Gower, London, 1986.

WALKER, Alexander, Sex in the Movies, Harmondsworth, Penguin, 1968.

WALLSGROVE, Ruth, Between the Devil and the True Blue Whitehouse, Spare Rib, December,

1977.

WEEKS, John, “Porn Link” study by police, Daily Telegraph, November 6th, 1986.

WALMSLEY, Roy and WHITE, Karen, Sexual offences, consent and sentencing, Home Office

Research Study 54, London, H.M.S.O., 1979.

WHITEHOUSE, Mary, Cleaning up TV, from protest to participation, London, Blandford, 1967.

WHITEHOUSE, Mary, Who does she think she is? London, New English Library, 1972.

WILDMAN, Donald E., The case against pornography, Wheaton, Illinois, Victor, 1986.

WiILsoN, Bryan R., Religion in Secular Society, London, C.A. Watts (Pitman), 1966.

WILSON, E., What is to be done about violence against women, Harmondsworth, Penguin

Books in Association with the Socialist Society, 1983.

YAFFE, Maurice (see Report of Committee on Obscenity and Film Censorship).

YAFFE, Maurice and NELSON, Edward C., The influence of pornography on behaviour, London,

Academic, 1982.

ZURCHER, Louis A. and KIRKPATRICK, R. George, Citizens for Decency, Anti-pornography

Crusades as Status Defence, Austin, University of Texas Press, 1976.

GREFEK BIBLIOGRAPHY

TRANSLATION OF TITLES OF WORKS

ANDROULAKIS, N.K., The Punishment of Obscenity today, a contribution to the debate about

morality and the criminal law, Penika Chronika (Penal Chronicles), 201-2221, 339-348,

1983.

p Og .

VALAORITIS, N., Erotica and literature, Scholiastis (Commentator) (30), 1985.

KouKouLE, M., Vulgar Greek expressions, Athens, Nefeli, 1984.

KrirPAs, G.I., Problems concerning the illegal projection of obscene films, EFphemeris Elliyon

Nomikon (Journal of Greek Jurists), t. 40, pp. 861-862, 1973.

KriPPAs, G.I., The effect of indecent materials on criminality, some relevant experimental

data, Theltio Englimatologikis Enimerosis (Bulletin of Criminological information),

April-May 9-11, 1986.

MANOLEDAKIS, I, À general theory of the criminal law, volume B, 1978.

MPouroPouLos, L.N., Indecent publications (articles 29-31), Law 5060/1931, Penika Chroni-

ka (Penal Chronicles) (2), 529-538, 1956.

MPouRrOPOULOS, L.N., Interpreting the current law relating to the press, Athens, 1958.

SIDERIS, D, Indecent performances and the cinema, Armenopoulos, 38, 97-106, 1984.

SUMMARY

The extent to which and the ways in which responses to pornography are a

product of a particular culture can only be determined by comparing countries such

as Greece and Britain which are sufficiently similar to make the comparison

possible and sufficiently different to make it meaningful. The moral debates about

and legislative responses to pornography in Greece and Britain have long been

based on two different and distinctive cultural concepts : aidos and depravity. In

Greece items are held to be indecent if they offend the aidos of those exposed to

them, i.e. if there is a generally, held view that most persons would and should feel

ashamed or embarrassed on seeing and reading such items. In Britain the test has

been whether the item would “deprave or corrupt” the readers but over time this

has been metamorphosed so that now the central question is whether the greater

availability of pornography would result in an increased (or decreased) frequency

of sexual assaults or of other crimes. In consequence far more attention is paid to

the study of the alleged effects of pornography on behaviour in Britain than is the

case in Greece. Recent ideologically motivated crusades seeking to censor porno-

graphy (notably those involving feminists) following a long period of decensorship

in Britain are discussed as is the relative absence of such crusades in Greece. In the

past the Greek macho majority despised pornography and the autocratic rule of the

military dictatorship resulted in the censorship of both obscenity and feminist ideas.

In consequence the Greek feminists are much less inclined to press for censorship

than their British counterparts.

sc ogy e

Intérêt de l’étude des potentiels

lents cérébraux dans l’expertise

psychiatrique en matière criminelle

M. TIMSIT et M. TIMSIT-BERTHIER*

L’importance de la littérature scientifique consacrée à l’utilisation de l’Elec-

troencéphalographie dans le champ de la Psychiatrie Légale témoigne de l’intérêt

que cette méthode d’exploration non-invasive n’a pas manqué de susciter, dès son

apparition, dans un domaine où les éléments de «preuve» font si cruellement défaut

au spécialiste, qu’il s’agisse pour lui d’évaluer l’étendue et la gravité du dommage

neuro-psychique provoqué par un traumatisme crânien accidentel, ou de déterminer

la capacité de contrôle d’un meurtrier, dans le but d’aider le magistrat à établir son

degré de responsabilité pénale.

Hormis la possibilité offerte de détecter les cas — rares — d’atteintes céré-

brales organiques grossières, comme celle de prévenir les risques d’installation

d’une épilepsie post-traumatique, l’EEG «standard» n’a cependant pas répondu à

cette attente, constat d’échec dont la lecture des premières communications parues

sur le sujet permet de se convaincre aisément. La méthode ne met pas davantage

en évidence de signes «objectifs» du syndrome post-commotionnel, qu’elle ne ré-

vèle de «profil spécifique» d’une prétendue personnalité criminelle. Aussi peut-on

considérer que les perspectives ont radicalement changé avec la découverte, dans

les années soixante, des Potentiels Lents Cérébraux Liés aux Evénements (ERSPs)

- la Variation Contingente Négative (VCN) (Grey-Walter et al., 1964) et la P 300

(Sutton et al., 1965) : ce n’est plus dans des conditions passives, fussent-elles as-

sorties d’épreuves d’activation sensorielle ou motrice que l’activité bio-électrique

cérébrale est enregistrée, mais dans un contexte dynamique impliquant activement

le sujet, de telle sorte que les variations des tracés — détectées par des techniques

de sommation et de moyennage — seront en mesure de refléter fidèlement l’effi-

cience des processus cognitifs, le degré de contrôle émotionnel et l’intensité des

dispositions motivationnelles.

L’étude de la VCN, entreprise conjointement avec celle de l’Anñalyse Spectrale

de l’EEG à partir d’une méthode d’enregistrement et de traitement originale élabo-

rée dans notre service a montré tout le parti qu’on en pouvait tirer dans le champ

* Laboratoire de Neurophysiologie Clinique et de Psychopathologie de l’Université de Liège

(Directeur Docteur M. Timsit-Berthier), Policliniques universitaires, rue Trasenster 21, 4102

Ougrée, Belgique.

—s 05

de la Psychiatrie comme dans ceux de la Psychosomatique, de la Psychopharmaco-

logie et de la Psycho-endocrinologie (Rev. in Timsit-Berthier, 1984).

Ce sont les résultats obtenus dans le domaine de la Psychiatrie Légale en

matière criminelle que nous souhaitons exposer dans le cadre de cette communica-

tion à partir d’une série d’observations concernant des sujets inculptés de meurtre

et qui nous avaient été adressés à des fins d’expertises pénales par les Magistrats

Instructeurs ou le Parquet.

METHODES

Procédures électrophysiologiques

Le paradigme de la VCN consiste en un stimulus avertisseur (S1 = un ton de

1000 Hz d’une durée de 50 milli-secondes), suivi d’un stimulus impératif (S2 = une

uv

-30 +

-20

-10

L

10

20

Kl

y secondes

|

SoN

ECLAIRS

Figure 1 : Paradigmes de la VCN

— S1 = un son de 1000 Hz, d’une durée de 50 Msec.

— S2 = série de flashes que le sujet doit arrêter.

— Intervalle S1 - S2 = 1 sec.

— Séquences de présentation des stimulations séparées

par des intervalles aléatoires de 7 à 25 sec.

064 —

série de flashs lumineux que le sujet a, comme consigne, d’interrompre en appuyant

sur un bouton poussoir). Les couples de stimulations sont séparés par des intervalles

aléatoires de 7 à 25 secondes et les sujets reçoivent un bloc ininterrompu de 60 à

80 couples de stimulations dont sont extraits 48 couples dépourvus d’artéfacts.

Chaque séance d’enregistrement dure de 30 à 40 minutes. Des électrodes non po-

larisables sont placées en trois points différents : 1) au vertex (en Cz), 2) au niveau

de la région sous-orbitale gauche, 3) au niveau de l’oreille gauche. L’activité élec-

tro-encéphalographique est enregistrée à l’aide d’un appareil Grass 8 canaux et

l’analyse des données s’effectue au moyen d’un PDP 11/40. Grâce à une visualisa-

tion continue, le programme d’acquisition permet de contrôler la qualité des échan-

tillons successifs et de supprimer les signaux artéfactés (fig. 1).

Chez les sujets indemnes de toute atteinte d’ordre psychopathologique et placés

dans des conditions d’enregistrement «normales» à l’abri de stimulations senso-

rielles parasites, cette exploration électrophysiologique aboutit à mettre en évidence

une courbe très particulière laquelle se développe, en effet, généralement en crois-

sant de façon progressive dans l’intervalle qui sépare les deux stimulations et au-

dessus de la ligne de base (négativité) pour se résoudre brusquement aussitôt après

S2 en devenant positive. Ainsi dispose-t-on de deux paramètres dans l’analyse des

données : l’amplitude de la courbe (avant S2), et sa durée (après S2).

L’étude de l’amplitude est obtenue par la mesure de sa valeur moyenne (sur

48 essais) — différence de voltage entre la moyenne des points situés 200 msec

avant S2 et la ligne de base calculée durant la seconde qui précède S1. Celle de la

durée est réalisée par l’évaluation de la différence de potentiel relevée entre la

courbe et la ligne de base dans l’intervalle situé entre 500 et 700 msec après S2.

Deux autres indices sont pris en compte :

— le Temps de réaction — donnée d’ordre comportemental — évalué dans l’inter-

valle qui sépare S2 et l’extinction des flashs lumineux ;

— le degré d’Habituation de la courbe par la prise en compte, sur un mode quali-

tatif de l’évolution dynamique de l’amplitude tout au long de l’enregistrement à

partir de l’étude séquentielle de 6 VCN successives, chacune d’elles correspon-

dant à une moyenne partielle de 8 essais.

Normalement, les valeurs, en microvolts, de l’Amplitude se distribuent dans

une zone située entre - 12 et - 20 mv et l’on est amené à décrire des VCN de faible

amplitude au-dessous de ces valeurs et des VCN d’amplitude élevée au-dessus. La

courbe est dite de «durée brève» lorsque elle se résout aussitôt après la délivrance

de S2 et, à l’inverse, elle peut être plus ou moins prolongée (Post Imperative

Negative Variation-PINV). Le Temps de Réaction oscille entre 200 et 300 msec et

l’on assiste à un phénomène d’Habituation, comme il est de règle dans les épreuves

expérimentales de Temps de Réaction : l’Amplitude de la VCN est réduite de 25 %

de sa valeur, environ entre les première et sixième séquence. Il y a «Absence

d’Habituation» lorsque cette valeur reste inchangée du début à la fin de l’enregis-

trement, et «instabilité» dans l’éventualité où ces valeurs fluctuent de façon désor-

donnée.

Ls 074e

vCN

â Cz-A1

/"Ÿ\{V""“V"“'

EEG

ÏE

Ê

A

n

\\

EEG

P3-P4

.

EE

|‘Î

=-

EN

cd ys

Hz

12

16 20 24

28

lE

::

|E

——>

E:

sPs

sP2

sP3

fâ

Ë

Â

:â

sec

Figure 2 : Etude combinée de la VCN (enregistrée avec une dérivation

monopolaire Cz-A1) et de l’analyse spectrale de l'EEG (enregistré avec

une dérivation bipolaire P3-P4). L'analyse spectrale de l'EEG est

exécutée 2 fois : avant la 12 stimulation S1 (Spectre de repos), dans

l’intervalle S1-S2 et après S2 (Spectres d'activité).

L’Analyse spectrale a été effectuée sur l’EEG par un montage bipolaire (P3-

P4) et elle portait sur trois périodes de temps distinctes d’une seconde chacune :

1) la première sur la période d’enregistrement EEG qui précédait l’émission de la

stimulation annonciatrice (S1), 2) la deuxième sur la période de temps qui s’écoulait

entre les deux stimulations S1-S2, 3) la troisième sur la période de temps qui suc-

cédait immédiatement à la délivrance de S2. L’Analyse spectrale a pu, ainsi être

réalisée dans des situations bien différentes au cours de la réalisation de cette

épreuve de Temps de réaction : condition passive, attente active, relâchement. Les

mesures de chacune des bandes de fréquences du spectre étaient exprimées en

fonction de leur pourcentage par rapport à l’énergie totale du spectre, de telle sorte

qu’il était possible d’en calculer le pic, un indice alpha représentant le pourcentage

alpha divisé par la somme théta = delta, et la mesure de la réactivité de l’alpha

par la différence entre son pourcentage avant S1 et entre S1 et S2 (fig. 2).

pORE *

Chez tous les sujets de ces deux études, les enregistrements ont été effectués

dans le cadre de procédures expertales, après les entretiens cliniques, et le plus

souvent le même jour que les explorations psychologiques. De la sorte, les délais

écoulés entre les événements qui avaient été à l’origine des demandes d’expertise

— traumatisme crânien accidentel ou agression dans un cas, meurtre dans l’autre

— ont été variables et nous en donnerons les valeurs moyennes un peu plus loin.

Il nous paraît toutefois nécessaire de souligner le fait que les données électrophy-

siologiques étaient analysées par l’un des auteurs qui n’avait aucune connaissance

des données cliniques et psychologiques (1).

Explorations psychologiques et psychiatriques

Les entretiens cliniques, effectués après une étude attentive de dossiers dont on

sait l’importance qu’ils revêtent en matière expertale, étaient suivis, dans tous les

cas d’épreuves visant à évaluer d’une part, le niveau intellectuel (échelle de We-

chsler-Bellevue), et d’autre part l’organisation de personnalité et son mode de fonc-

tionnement par le truchement de tests projectifs (Rorschach et TAT) et de

l’administration d’un Inventaire Psychiatrique Standardisé («Present State Examina-

tion», dans sa version française - traduction M. Timsit-Berthier et A. Bragard-Le-

dent). L’on sait quel parti l’on peut tirer de cette dernière épreuve dans l’évaluation

du degré de sévérité de l’atteinte psychopathologique et des possibilités qu’elle offre

d’un point de vue classificatoire (Timsit-Berthier et al., 1984).

POPULATION

La mission qui est assignée à l’expert est d’évaluer la capacité du contrôle des

actions de sujets inculpés de meurtre ou de tentatives de meurtre et passibles, au

demeurant, de la Cour d’Assises, au cas où le rapport d’expertise aurait conclu au

maintien de cette capacité, au moment de l’action comme à celui de l’examen, et,

partant, à leur responsabilité au plan juridique. Au moment où cette communication

était présentée (2), nous avions enregistré 59 sujets, tous examinés à la demande de

Magistrats Instructeurs ou de Cours d’Appel : 47 d’entre-eux l’avaient été par l’un

de nous à la suite de sa désignation et les 12 autres avaient fait l’objet d’examens

complémentaires réalisés dans notre Laboratoire (3).

Cette population n’échappe pas à la règle qui veut que le meurtre soit bien plus

largement le fait d’hommes que de femmes puisque ces dernières ne forment que

(1) M. Timsit-Berthier.

(2) X° Congrès international de Criminologie, 5 septembre 1988, Hambourg.

(3) Nous tenons à remercier tout particulièrement les docteurs A. Lamboray-Brisbois, W. De-

nys et B. Xhenseval pour leur contribution à la constitution de ce groupe.

L GOp 5

18 % des effectifs — 11 sur 59 — et l’âge, au moment de l’examen s’étendait de

17 à 59 ans avec un médian à 30 — on ne compte que 5 sujets de plus de 50 ans :

il s’agit donc d’une population relativement jeune, ce qui recoupe les données de

N

la littérature à ce sujet (Wilson et Herrnstein, 1985). Cependant il convient de

souligner qu’il existe de très grandes variations selon que l’on fait entrer les meur-

triers dans une catégorie ou l’autre en fonction de leurs mobiles respectifs. Nous ne

pouvons nier les difficultés auxquelles nous nous sommes heurtés dès lors que nous

avons voulu entreprendre une classification dans ce domaine et le cadre très limité

de cette communication nous interdit de nous étendre davantage sur ce point. Qu’il

nous suffise de rappeler qu’après maintes tentatives d’utiliser des axes de différen-

ciation fondés sur les références à la pathologie ou à la structure de personnalité,

nous nous sommes résolus à distinguer les sujets — que leur comportement ait été

reconnu comme «normal» ou non — en fonction du mobile de leur action et dans

la perspective inspirée de ses recherches en Psychologie Animale qu’a dégagée

Karli (1987) (4) (tableau I). Nous avons ainsi convenu de regrouper les sujets qui

avaient commis un crime sans visée utilitaire apparente, qu’il se soit agi d’un

meurtre passionnel «légitimé», le plus souvent avec préméditation ou après un guet-

apens (assassinat) sur des victimes connues et généralement proches, ou d’un acte

commis lors d’un paroxysme émotionnel — largement favorisé par des ingestions

importantes d’alcool — et avec une intention de tuer démontrée. Chez les premiers

on dénombre 16 hommes — âge moyen : 36 ans, s.d. 9.8 — et 11 femmes — âge

moyen : 36 ans, s.d. 9.4 —, et chez les seconds l’on ne compte que des hommes

(11 — âge moyen

34 ans, s.d. 11.3). Dans tous les cas l’analyse des conduites

meurtrières conduit à leur reconnaître une même visée fondamentale

mettre un

terme à une émotion douloureuse épisodique ou à une douleur morale plus durable,

en agissant sur la situation qui l’avait suscitée, pour reprendre les descriptions

proposées par Karli.

A l’opposé, nous avons situé les sujets dont les meurtres ou les tentatives ne

paraissaient avoir d’autre but que de s’approprier un objet convoité et qu’on entend

4

posséder avec anticipation de l’émotion plaisante qui est censée en résulter : les

crimes à visée lucrative ont tout naturellement leur place dans ce cadre et nous y

avons rangé les 16 sujets, tous masculins, dont les chefs d’inculpation et une lecture

attentive des dossiers d’instruction ne laissaient aucun doute sur la nature «crapu-

leuse» de leurs actes, même si chez une minorité d’entre-eux l’on pouvait aisément

détecter un état grave de déséquilibre mental sous-jacent. Leur âge moyen était bien

N

inférieur à celui des trois sous-groupes précédents, puisqu’il se situait à 22 ans

seulement (s.d. 3.8). Lorsque l’on compare ces valeurs à celles des 16 meurtriers

passionnels on constate que la différence est statistiquement significative (Chi 2 =

6.27, s. < 0.01). Les 5 sujets restants, auteurs de crimes «sexuels», constituent un

sous-groupe difficilement classable, mais que nous avons fini par considérer, en

suivant la logique de notre répartition, parmi les crimes appétitifs, plutôt que parmi

(4) Cette classification a fait l’objet d’une présentation détaillée lors d’une communication

présentée à la réunion de la Société de Neurophysiologie Clinique de Langue française, 17-18

juin 1988, Toulouse.

2454100 —

Tableau 1.

MEURTRIERS (n = 59)

Crimes sans visée utilitaire

Crimes avec visée utilitaire

n = 38

n=2l

(composante «aversive»)

(composante «appétitive»)

Passionnels

Paroxysmes

Visée lucrative

émotionnels

Sexuels

«légitimés»

Hommes

Femmes

Hommes

Hommes

Hommes

16

11

11

5

16

«Mettre un terme à une émotion dou-

«S’approprier un objet convoité et

loureuse épisodique ou à une douleur

qu’on entend posséder avec anticipa-

morale plus durable en agissant sur la

tion de l’émotion plaisante qui est cen-

sée en résulter»

situation qui la suscite»

Classification inspirée de P. KARLI : «L’homme agressif», 1987.

les aversifs, bien qu’il faille se rendre à l’évidence que si l’objet sexuel est ardem-

ment convoité avec une extrême anticipation du plaisir — constamment sadique —

qu’il est censé procurer, l’acte meurtrier n’est jamais commis qu’à l’acmé d’une très

forte tension. Ces sujets, masculins, ont un âge moyen de 29 ans (s.d. 5.2).

A l’exception des 5 cas de crime sexuel, pour lesquels les procédures avaient

été particulièrement longues, le délai moyen entre l’acte criminel et les épreuves

électrophysiologiques oscillait de 3 mois chez les inculptés ayant agi dans un état

de paroxysme émotionnel (s.d. 1.5) à 7 mois (s.d. 7) chez les psychopathes — crime

à visée lucrative —, tandis qu’il était de 5 mois chez les auteurs de meurtres

passionnels (s.d. 4). Il est remarquable, toutefois que cette variable temporelle n’in-

tervienne en aucune façon sur les caractéristiques des courbes, des VCN de très

grande amplitude ayant été relevées lorsque ce délai dépassait 6 mois, et, à l’inverse,

des VCN faibles enregistrées moins de deux mois après le passage à l’acte meur-

trier. Une étude de corrélation s’est révélée négative. Les troubles mentaux avérés

— troubles psychotiques et états déficitaires, essentiellement — n’avaient été rele-

vés que dans une proportion relativement faible (7 cas, soit 11 %, chiffre en tous

points comparable à ceux de la littérature spécialisée) et, sans que la différence soit

significative, ils prédominaient dans les états passionnels — 3 fois sur 16 chez les

sujets masculins, 2 fois sur 11 chez les sujets féminins, 1 fois, respectivement, dans

les sous-groupes des meurtres sexuels et des psychopathes. L’influence de l’alcool

et des drogues, tant au moment des faits qu’à travers un processus d’imprégnation

chronique s’est trouvée plus diversement répartie en fonctions des catégories puis-

qu’elle était retrouvée dans tous les cas de meurtres en état de paroxysme émotion-

nel, chez 68% des psychopathes (11 sur 16) et seulement dans 31% des

— 101 —

observations de crimes passionnels chez les sujets masculins (5 sur 16) et 27 % des

sujets féminins (3 sur 11). En tout état de cause, au moment où ils avaient été

enregistrés dans notre Laboratoire, tous les sujets qui avaient été soumis à ce type

d’addiction étaient largement sevrés du fait de leur incarcération. La notion de

traumatisme crânien dans les antécédents, essentielle à retenir lorsqu’il s’agit d’in-

terpréter ces courbes électrophysiologiques était certes retrouvée avec une fréquence

non négligeable pour l’ensemble de la population — 20 % des cas (12 fois sur 59)

— mais avec une distribution égale dans tous les sous-groupes, à l’exception de

celui des auteurs de crimes sexuels (3 fois sur 5). Il n’est pas interdit de penser que

cette variable ait pu influer sur les anomalies de la VCN observées dans ce sous-

groupe.

En première approche, on ne peut que souligner, chez les sujets meurtriers,

l’hétérogénéité des profils : toutes les configurations que rendent possibles les

modifications de l’amplitude, de la durée et de l’habituation sont ici retrouvées.

Cependant une analyse des données plus attentive fait apparaître un contraste frap-

pant entre les deux sous-groupes qui semblent le mieux définir les catégories diffé-

rentielles que nous avions instituées en fonction de la visée recherchée par les

meurtriers

le sous-groupe des 16 auteurs masculins de meurtres passionnels «lé-

gitimés» et celui des 16 psychopathes, également tous masculins, auteurs de crimes

crapuleux. Des différences statistiquement significatives affectent, en effet, aussi

bien l’Amplitude des courbes que sa Durée. Ainsi, chez les premiers l’Amplitude

moyenne apparaît-elle comme élevée — 21,79 mv (s.d. 6.51) — comparativement

à celle qui est calculée chez les seconds — 14,43 mv (s.d. 6.54) — le F de Snedecor

étant de 7.12, la différence est significative à un seuil inférieur à.02. Le même

contraste affecte la Durée : la présence de PINV, VCN de durée très prolongée, est

chez les premiers relevée dans la moitié des cas — 8 fois sur 16 — alors qu’elle

ne l’est que dans 3 cas chez les seconds (différence significative à.02). A l’inverse,

les VCN de durée brève ne sont recensées que dans un quart des cas chez les

premiers, tandis qu’elles sont la règle chez les seconds (11 fois sur 16). Il convient

de préciser que même si l’on faisait abstraction des sujets atteints de psychose

avérée — sujets dont les courbes étaient à l’évidence des plus anormales — le

contraste entre les configurations relevées dans ces deux sous-groupes serait tout

aussi net. L’on peut mesurer la distance qui sépare ces configurations en comparant

les trois courbes que nous avons choisi de reproduire à titre d’illustrations (fig. 3,

4 et 5).

Ces données, notamment celles qui concernent la faiblesse relative de l’ampli-

tude chez les sujets psychopathes auteurs de crimes à visée utilitaire nous paraissent

aller dans la direction des travaux antérieurs sur ce sujet (rev. in Raine et Venables,

1987). La présence de PINV dans de telles proportions chez les auteurs de crimes

passionnels mais aussi chez les grands déséquilibrés sexuels mériterait une discus-

sion d’autant plus approfondie que nous n’avons pas manqué de souligner le fait

que dans l’ensemble de la population qui a fait l’objet de cette étude, le pourcentage

de sujets atteints de troubles psychiatriques certains était faible. Or l’on sait que ces

PINV sont électivement décrits dans de tels états, et qu’elles constituent une parti-

cularité fonctionnelle qui renvoie à des troubles des processus cognitifs générale-

à

— 102 —

ment associés à des états psychopathologiques sévères. La question se pose de

savoir si, chez ces auteurs de meurtres passionnels et ces grands pervers sexuels,

elles ne seraient pas l’indice d’une vulnérabilité certaine de la personnalité. Les

confrontations de ces résultats envisagés dans la perspective compréhensive neuro-

chimique qu’a développée l’un de nous (Timsit-Berthier, 1981), avec ceux qui ont

été obtenus dans des populations de délinquants ou de suicidants sur la base de

recherches conduites sur le métabolisme de l’adrénaline et de la sérotonine (Ma-

gnusson, 1987, Asberg et al., 1987) nous paraissent susceptibles d’approfondir la

nature des phénomènes qui sous-tendent ces modifications caractéristiques.

En conclusion, il nous paraît essentiel de préciser que les résultats obtenus à

l’aide de ces procédures d’enregistrement électrophysiologiques ne sauraient en

aucune façon se substituer à l’examen clinique, seul en mesure de rassembler dans

une visée intégrative les éléments tirés d’approches distinctes mais complémen-

taires. Il n’en reste pas moins qu’ils peuvent revêtir, le cas échéant, un précieux

intérêt en orientant l’expert vers des directions qui n’auraient pas été soupçonnées

autrement, et, à ce titre, ces procédures nous paraissent devoir entrer dans la pratique

expertale courante.

A considérer le problème sur un mode plus théorique et général, on ne peut

manquer d’être frappé par le fait que les situations rencontrées en matière pénale

diffèrent sensiblement de celles que nous avons observées en matière civile : dans

ce dernier cas, les résultats obtenus tendent à montrer que la relative homogénéité

des courbes électrophysiologiques refléterait l’effet réducteur qu’ont pu exercer sur

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d'un enfant de 8 ans. Présentait un état psychotique d'allure dissociative

au moment où l'enregistrement a été effectué.

— 103 —

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L aqu'e

les opérations mentales, la commotion cérébrale, dans les syndromes post-commo-

tionnels, et le traumatisme psychique dans les névroses traumatiques. À l’opposé,

dans le premier, l’hétérogénéité, non moins relative de ces courbes, renverrait à

l’extrême diversité des organisations de personnalité, comme des situations crimi-

nogènes qui président au meurtre, même si, en première approche cet acte est

susceptible d’apparaître comme la réponse univoque à des situations de tension

agressive extrêmes, chez des sujets, il est vrai dont les courbes de la VCN, parmi

d’autres indicateurs, souligne la particulière vulnérabilité.

REFERENCES

ASBERG, M., MARTENSSON, B. and WAGNER, A., «Psychobiological aspects of Suicidal Beha-

vior». In D. Magnusson and A. Ohman (eds), Psychopathology - An International Pers-

pective. Academic Press. Inc., Orlando (Floride), 81-94, 1987.

KARLI, P., L’Homme agressif. Editions Odile Jacob, Paris, p. 384, 1987.

MAGNUSSON, D., «Adult delinquency in the Light of Conduct and Physiology at an early Age :

A longitudinal study». In D. Magnusson and A. Ohman (eds), Psychopathology - An

International Perspective. Academic Press. Inc., Orlando (Floride), 221-234, 1987.

RAINE, A. and VENABLES, P.H., «Contingent negative variation, P3 evoked potentials and

antisocial behavior». Psychophysiology, 24, 191-199, 1987.

SUTTON, S., BRAREN, M., ZUBIN, J. and JoHN, E.R., «Evoked potential correlates of stimulus

uncertainty». Science, 150, 1187-1188, 1965.

TIMSIT-BERTHIER, M., «A propos de l’Interprétation de la Variation Contingente Négative en

Psychiatrie». Rev. EEG Neurophysiol., 11, 236-244, 1981.

TIMSIT-BERTHIER, M., «Variation Contingente Négative et composantes endogènes du Potentiel

évoqué». Rev. EEG neurophysiol., 14, 77-96, 1984.

TIMSIT-BERTHIER, M., BRAGARD-LEDENT, À. et TIMSIT, M., «L’Examen psychiatrique standar-

disé selon la méthode de Wing, Cooper et Sartorius». Acta psychiat. belg., 84, 252-272,

1984.

WALTER, W.G., COOPER, R., ALDRIDGE, V.J., MCCALLUM, W.C. and WINTER, A.L., «Contin-

gent negative variation : An electrical sign of sensori-motor association and expectancy

in the humain brain». Nature, (Lond.), 203, 380-384, 1964.

WILSON, J.Q. and HERRNSTEIN, R.J., «Crime and Human Nature». Touchstone, Simon and

Schuster, Inc., New York, p. 639, 1985.

— 105 —

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Cartesian Penology

Jean-Paul BRODEUR*

Writing on punishment can be a punishing experience. We are facing two kinds

of problems, each threatening to make penal reflection a futile exercise. Primarily,

there is a body of research and literature which might be called hyper-critical : this

research points to the weaknesses of all theories of punishment but fails to replace

them by an adequate theory, either because it cannot solve the problems which it

raises (e.g. Wasserstrom, 1980) or because it does not want to, punishment being

seen as a concept that is so fraught with difficulties of all kinds that it ought to be

altogether rejected (e.g. Hulsman, 1982; Mathiesen, 1974, 1980). There is, on the

other hand, a second trend in the literature, which is more positive and which offers

a new theory of punishment. However, what is gained at the level of theory is lost

at the level of application : not only is current penal practice unrelated to the pro-

posed ideal, but its proponents do not see at present how we should proceed in

adjusting practice to achieve this ideal (e.g. Duff, 1986).

The gap between ideals and reality is a problem that necessarily afflicts all new

theories that have a prescriptive character ; this should not deter us from developing

new theories of punishment, unless these theories are so remote from reality that

they are in principle inapplicable. Even so, if a theory of punishment is very far

removed from current penal reality, it may still be said to be an illuminating exercise

in conceptual analysis. However, what would be the point of an approach that would

remain wholly critical and negative, without even attempting to give a satisfactory

answer to the problems that it raises? Since this is the approach that we will be

taking in this paper, we will try to provide some justification for it.

René Descartes, the XVIIth century French philosopher, is considered to be the

father of modern rationalism. Although true, this appraisal needs to be properly

interpreted, because Descartes’ rationalism is more limited than is generally

believed. Descartes provided several descriptions of his method, the best known of

these accounts being found in Le Discours de la méthode (A Discourse on Method).

Descartes proceeded to put everything in doubt, to see whether there would not be

one truth that would successfully resist methodical skepticism and that would pro-

vide an unshakable foundation upon which to build knowledge. He discovered that

the statement “I think, therefore I am” (cogito, ergo sum) expressed a truth which

was impossible to doubt and which could therefore provide the starting point for

further philosophical demonstrations.

* Directeur, Centre international de criminologie comparée (CICC), Université de Montréal.

— 107 —

This story is familiar. What is not commonly realized, however, is that Des-

cartes only partially succeeded in his attempt to provide a foundation for knowledge

and that the gap between pure and practical reason, which plays a decisive role in

Kant’s ethics, is also a fundamental feature of Descartes” philosophy. Descartes

succeeded to a large extent in casting scientific knowledge into a system of mutually

dependent proven theorems. However, the application of his method in the field of

ethics only resulted in the discovery of a fundamental antinomy between the free-

dom of the human will and determinism. Since there can be no responsibility

without freedom, solving this antinomy lies at the core of the possibility of moral

philosophy.

The antinomy between the freedom of will and determinism is expressed most

clearly in Les principes de la philosophie, where Descartes expounds his philosophy

in the form of a systematic textbook. In section 39, Descartes argues that we know

our will to be free through the immediate experience of being able to give or to

withdraw our consent with regards to different things. In the next section, he notes

that our experience of freedom clashes with our knowledge that everything was

pre-ordained by an omnipotent God (whether as a law of God or of nature, deter-

minism was considered to be the condition of science). In section 41 of Les principes,

Descartes tries to resolve the antinomy in the following way. God’s omnipotence is

infinite and, being finite, the human mind cannot comprehend God’s infinity. Hence

we should not reject the notion of the freedom of will, which we clearly and re-

peatedly experience in our lives, because it appears to be incompatible with an idea

— God’s omnipotence — that we cannot fully comprehend, because of its infinite

character. In other words, if our minds were not finite, we could resolve the antinomy

between the freedom of the human will and determinism. Until we are given this

ultimate knowledge, we shall act in accordance with what experience, however

limited, teaches us to be true and that is, the existence of freedom of will.

The purpose of this digression on Cartesian philosophy is to contrast Descartes”

subsequent position in ethics to that of some retributivists such as Kant and Hegel.

Descartes is aware that his resolution of the antinomy of the freedom of will is

unsatisfactory, for it basically rests on the assertion that the human mind is limited.

For a true rationalist like Descartes, little could be built on such an incomplete

foundation and, indeed, Descartes did not write a treatise on ethics. Descartes’ most

explicit statements in moral philosophy are to be found in Le discours de la

méthode. Descartes’ position rests on the key concept of a provisional ethic. His

attitude can be summarized briefly. Even though we do not possess certain knowl-

edge in the field of ethics, we still need some guidance for our actions. Since we

are not in a position to derive our moral philosophy from unshakable truths such as

the Cogito, we must be satisfied with a provisional ethic consisting of a few sound

principles. The first of these principles is to abide by the laws and customs of one’s

country and, more precisely, to govern oneself according to opinions that are the

most moderate and devoid of excess.

Descartes’ position is similar to Kant’s in that they were both confronted with

the antinomic character of the freedom of will, with the implication that pure reason

— 108 —

only provided morality with an uncertain foundation. Descartes’s rationalism

stemmed from his practice as a mathematician and as a scientist. For him, there was

no other realm where the limitations of pure reason were to be overcome. Raised

in the religious tradition of Pietism, Kant went beyond the realm of pure reason and

reinstated assertions that were fraught with antinomies, such as the existence of

freedom, as postulates deemed necessary for leading a moral life. In striking contrast

with Descartes, he was then led to develop a moral philosophy which, despite its

elevation, was extremely intransigent and rested on constraining notions such as the

“categorical imperative”. Kant’s ethical dogmatism is starkly reflected in his writ-

ings on penal justice, where he produced one of the most uncompromising defences

of capital punishment :

“Even”, says Kant, “if a civil society were to dissolve itself by common agree-

ment of all its members (for example, if the people inhabiting an island decided

to separate and disperse themselves around the world), the last murderer re-

maîining in prison must be first executed, so that everyone will duly receive

what his actions are worth and so that the bloodguilt (Blutschuld) thereof will

not be fixed on the people because they failed to insist on carrying out the

punishment ; for if they fail to do so, they may be regarded as accomplices in

this public violation of legal justice.” (Kant, The Metaphysical Elements of

Justice).

The point that we have made with respect to Kant can be applied much more

generally. We believe that there is a strong relationship between the degree of

confidence which an individual or a group possess in their positive knowledge of

punishment and their willingness to use it without restraint. By positive knowledge,

we mean any set of assertions about the nature of punishment, its justification and/or

its beneficial consequences, which are held to be true. This knowledge can be

viewed as pertaining to science; this is generally the case with the consequencialist

theories of punishment, when, for example, the deterrent effects of punishment are

believed to be empirically demonstrated. This knowledge can also pertain to com-

mon sense, the field of ethics, religion or to self-evidence.

If the whole point of a cartesian penology is to claim that the more one assumes

punishment to be justified or useful and the more one will resort to its infliction,

are we not stating the obvious ? We believe not. First of all, one of the noteworthy

implications of our thesis is that there is a certain degree of incompatibility between

legitimizing punishment and advocating restraint in its use. The perspective of just

deserts, as it is expressed in Doing Justice (1976) and in further work by von Hirsch,

would certainly qualify as an assertion that punishment is morally justified and that

it should be used with moderation. The question that we would raise within the

framework of a cartesian penology is whether the legitimacy which is afforded

punishment by the justice model is not bound to override its plea for restraint. In

view of the fact that the spread of the just deserts approach has coincided in time

with the staggering increase in the U.S. prison population, this question appears to

be valid. Needless to say, the question is also extremely complex and we ought not

rush any decisions.

— 109 —

There is another feature of a cartesian penology which is more fundamental

and which also makes it attractive. Penal theory seems so far to have generated

debate which is conducted according to an impoverished binary logic. Punishment

is either seen as completely justified or not at all. According to Kantian retributiv-

ism, consequencialist theories are guilty of the cardinal sin of using human beings

as means rather than as ends — for example, using the punishment of one offender

as means to deter others — and should wholly be rejected. What is interesting in

Descartes’ moral philosophy is that the recognition that there is no absolute foun-

dation in the field of ethics does not lead to moral relativism. The provisional ethic

proposed by Descartes and its implication on the necessity for moderation does not

follow from the realization that reason cannot elucidate all the implications of the

existence of a free will, which we can nevertheless experience. Rather, it is based

upon the belief that we can only draw limited conclusions from limited knowledge.

According to binary logic, we should either conclude nothing or make up for what

is missing in the premises by the strength of our conclusions. In both of the latter

cases, we would be wrong.

It should be clear by now that we are referring to Descartes less for the his-

torical content of his moral philosophy than as the paradigm for an intellectual

attitude that is consonant with the particular nature of penology. Penal justice is a

field where the vividness of our moral experience frequently offsets the uncertainty

of our knowledge, this unbalance being for the most part detrimental to the exercise

of restraint.

In this paper, we shall apply Descartes’ method of universal doubt with a view

to making a case for penal restraint. The paper is divided in three parts, followed

by a brief conclusion. In the first part, we explore some of the difficulties which

stand in the way of the development of a general theory of punishment, as such. In

the second part, we focus on problems and antinomies which are more specifically

related to legal punishment. In the last part, we discuss several examples of the

discrepancy between penal theory and penal practice and raise the question of

whether it is reasonable to expect that some of these gaps will eventually be bridged.

1. LOGICS OF PUNISHMENT

The last chapter of Walker (1977) is entitled “The criminologist’s stone”. In

this chapter, Nigel Walker argues that no single theory can explain crime, because

the word refers to kinds of behaviour which are too different to be accounted for

in the same conceptual way. Walker, of course, is right. Incest and making conterfeit

money exemplify types of behaviour that have nothing in common except that they

are both defined as legal offences in criminal codes.

We believe there may also be a “penologist’s stone”, by which we mean an

insurmountable obstacle blocking the way to an integrated and consistent theory of

punishment. Black (1976 : 5) identifies four styles of social control, namely the

penal, compensatory, therapeutic and conciliatory styles. In a similar way, we could

— 110 —

attempt to distinguish different styles of punishment, according to the setting or the

context in which the punishment is applied. Actually, we suggest that punishment

obeys different principles, depending upon whether it occurs within the context of

a family, of a religious order, of the criminal law, or of different kinds of communi-

ties. We cannot provide complete descriptions of all the principles which come into

play. We shall briefly compare different settings and highlight some features of the

various “logics of punishment” that are applied.

1.1. Punishment Within Family Settings

The Report of the Canadian Sentencing Commission (Canada, 1987 : 106)

briefly alludes to the contrast between legal and family punishment. The main

difference can be described in the following way. Within criminal law, punishment

is potentially considered to be an adequate response to all delinquent behaviour (the

word “potentially” is only used to refer to the fact that no criminal code actually

covers all blameworthy behaviour; however, any delinquent behaviour can be in-

corporated in the penal code if the legislator wishes to do so). Furthermore, the

severity of the punishment progressively increases in proportion to the seriousness

of the offence and it covers the whole range of misbehaviour. The consistent appli-

cation of the principle of proportionality throughout is not only unquestioned; it is

seen as a basic requirement of justice.

AII this is in marked contrast to what normally happens in a family, within the

context of the relationships between parents and their children. The general point is

often made that punishment performs a training and educational function. The fact

that punishment is used to teach children to refrain from behaving in a way that

may seriously harm them is given as an illustration of its educational function. It

must be stressed, however, that punishment within the family setting is normally

considered to be a limited tool for remedying misbehaviour. It is imposed as a

response to rather petty misbehaviour. If, for example, children slap others, they

may be punished ; however, if a child tries to use a knife or some other object as a

weapon to inflict serious harm on another, most parents will not resort to increased

punishment to socialize their child. They will talk with the child and may eventually

seek professional help. The point of this example is to show that the logic of

proportionality is used within the family in a very different way from that within

the criminal law. After a certain threshold of seriousness, the child’s misbehaviour

is no longer matched by a proportionate sanction, punishment being seen as an

inadequate response.

There is also a contrast with regard to repeated misbehaviour. In criminal law,

recidivism is an aggravating circumstance. It is generally not so within the family.

If, for instance, a child wets its bed, its parents might at first resort to punishment

and even increase the punishment if the child persists. However, they will not keep

that up for long and, if no change occurs in the child’s behaviour, they will look

for another way of curing the child of this problem.

— 111 —

Our remarks do not only apply to the family. It is also true, to a large extent,

of the school, where the logic of proportionate sanctions does not appear relevant

beyond a certain threshold of misbehaviour (the parents are called upon, the child

is expelled etc.). We are aware that there are numerous exceptions to our descrip-

tions and that families and schools are far from being idyllic settings. One has only

to read Swinburne’s novels to learn that an entire educational system may have been

premised on the use of corporal punishment (particularly flogging). It is neverthe-

less undeniable that these practices were both morally and educationally abhorrent

and ought to be discussed within the framework of pathology within the family and

education.

1.2. Punishment and Monasticism

Families and schools have been widely studied. There is, however, another

system of punishment which relied (and still does) on a detailed set of rules and

which, because of its originality, deserves far more attention from penologists than

it has so far received. It is the system of discipline that is applied in religious orders,

and particularly in monasteries. The disciplinary rules governing the Benedictine

monasteries were codified by Saint Benedict of Nursia c. 530-540 (Vogue et Neuf-

ville, 1972) and they were widely commented on during the Middle Ages by other

monks, who were also great scholars, such as Petrus Cellensis, to whom we owe

the xIIth century De Disciplina Claustrale.

Any comprehensive description of monastic discipline extends far beyond the

scope of this paper. We will limit our account to one feature of this discipline, which

has particular significance for our purposes. In his Regula, which constitutes the

basic source for monastic discipline, Saint Benedict resorted to different sanctions,

such as excommunication, imposed fasting and physical beatings. The principal

sanction is excommunication. It should not be understood in the usual sense of a

definitive expulsion from the Church. Excommunication was measured in days,

during which a guilty monk was submitted to different forms of segregation, ac-

cording to the seriousness of his offence (e.g. being late at a religious service, not

performing his work properly). He would lie prone during meals in the refectory,

be excluded from religious services and his company would be avoided by his

brothers (Regula, art. 23-25).

It is important to realize that excommunication was not considered to be the

most severe sanction. Indeed, if an offender persisted in his behaviour, he would be

submitted to more severe punishment, such as beatings (Regula, art. 28). However,

it was not only the recidivists that were to be subjected to the harsher measures.

Saint Benedict writes (Regula, art. 30) :

There must be measures appropriate to every age and degree of intelligence.

This is why children, adolescents or others that cannot grasp what excom-

munication is will be imposed rigorous fastings or will be severely punished

by beatings, when they commit an offence, in order to be cured. (Our transla-

tion).

— 112 —

Interpreted in the whole context of the Regula, it becomes clear that this article

of the rule is not advocating child beating. Saint Benedict always stresses that the

purpose of punishment is ultimately to reform the offender and that the abbot must

care for those whom he punishes. Still, the fact that children, adolescents and feeble-

minded persons are submitted to sanctions which are in themselves more severe

than excommunication implies that those who are least responsible for their be-

haviour are imposed the harshest punishment. This particular feature of the monastic

logic of punishment reveals the nature of the penal structure that was implemented

in monasteries. Excommunication, which formed the basis of the rules of discipline,

is essentially a message of obloquy adressed to the offender (paradoxically, it is

communication through excommunication). It must be understood by him in order

to produce its intended effect, that is, penance and reintegration in the community

from which he was temporarily expelled. This process of communication is facili-

tated by another important character of this logic of punishment. In De Disciplina

Claustrale, Petrus Cellensis emphasizes repeatedly that monastic discipline is vol-

untarily accepted by the monks, with all its implications. This means that punish-

ment is either self-inflicted or that it is applied by the abbot or by other monks under

conditions most favorable for the reformation of the offenders.

This logic of punishment contrasts both in theory and in its practical con-

sequences with the logic of family punishment and the criminal law. For example,

its emphasis on the necessity for the offender to understand the meaning of his

punishment makes it possible for more punitive sanctions to be imposed on of-

fenders who, like children, cannot grasp the significance of their punishment. This

feature is different from the logic of punishment prevailing within the family.

Monastic discipline must also be imposed with compassion and respect for the

offender, in order to favor penance and reformation. Saint Benedict is particularly

explicit on this aspect of punishment and he devotes a whole article of the Regula

to it. This article specifies that “the abbot must call upon all of his solicitude to care

for delinquent brothers, for it is not the healthy but the sick who are in need of a

doctor” (Omni sollicitudine curam gerat abbas circa delinquentes fratres, quia non

est opus sanis medicus sed male habentibus; Regula, art. 27). This requirement is

in striking contrast with the actual application of sentences in the criminal justice

system.

1.3. Eclectic Theories of Punishment

The comparison that we have briefly made between different logics of punish-

ment may be somewhat revealing. The Regula of Saint Benedict is not very well-

known by penologists. However, our remarks on punishment within the family are

not new. The point of the previous analyses does not lie in their descriptive content

but in the question they pose : to what degree are the different logics of punishment

that we have briefly tried to characterize reconciliable with one another? In other

words, to what extent is it possible to excerpt various elements from their original

context — the family, the school, the monastery, the criminal justice system — and

— 113 —

blend them together into a theory of punishment which is not syncretic to the point

of being inconsistent ? Closely related to this question is the issue of transposition :

can one transpose to criminal law features of a logic of punishment which are

borrowed, for example, from the monastic context ?

Let us try to illustrate these questions. Simone Weil wrote on punishment in

some of her essays, particularly in L’enracinement and in La personnalité humaine.

Her perspective has influenced such writers as Michael Ignatieff (1989) and R.A.

Duff (1986). The best way to sum up Weil’s perspective is to quote L’Enracinement

(The Need for Roots, transil. by A.F. Wills, 1952 : 20).

“Punishment is a vital need of the human soul… By commiitting a crime a man

places himself, of his own accord, outside the chain of eternal obligations

which bind every human being to every other one. Punishment alone can weld

him back again; fully so, if accompanied by consent on his part; otherwise

only partially so. Just as the only way of showing respect for someone suffering

from hunger is to give him something to eat, so the only way of showing respect

for somebody who has placed himself outside the law is to reinstate him inside

the law by subjecting him to the punishment ordained by the law.”

This paragraph is remarkable from several points of view. First, it must be

stressed that punishment can fully reintegrate an outcast into the community of men

only, if it is accompanied by consent. Secondly, Simone Weil’s conception of the

law as a chain of eternal obligations binding human beings to each other is not only

very distant from any actual criminal law, it is largely inspired by her own spiritu-

ality, whose elevation and intensity can be compared to that of the great mystics.

How remote Weil’s conception of punishment is from the reality of criminal law

was to be shown in a later essay, where she declares that ‘“there is one, and only

one, thing in modern society more hideous than crime — namely repressive justice”.

Weil’s mysticism also found clear expression in this same essay, entitled Human

Personality. In that part of the essay where she reiterates her views on punishment,

Simone Weil also writes :

“The treasure of suffering and violent death, which Christ chose for himself

and which he so often offers to those he loves, means so little to us that we

throw it to those whom we least esteem, knowing that they will make nothing

of it and having no intention of helping them to discover its value.” (Weil, in

G.A. Panichas, ed., 1977 : 336).

Simone Weil’s conception of punishment is in important ways similar to Saint

Benedict’s and Petrus Cellensis’ writings on monastic discipline. These conceptions

are akin not only in the sense that they are fundamentally inspired by religion, but

also in their common emphasis on the meaningfulness of punishment, on its re-

demptive value and on the importance put on the element of consent in punishment.

In certain respects, Weil’s conception contrasts very strongly with some features of

criminal punishment. For example, the element of consent is extremely problematic

in the case of criminal punishment.

en

We are now in a better position to raise some of the questions that we asked

before. Can one incorporate fundamental elements of Simone Weil’s conception of

punishment — e.g. its redemptive nature — in an attempt to justify criminal punish-

ment, while casting aside the religious and spiritual framework form which these

elements are derived and in which alone they have a concrete meaning? Both

Simone Weil and Saint Benedict believe that punishment must communicate some-

thing to the offender, which reaches to this part of himself that has remained pure

and good. However, is it not necessary that punishment be imposed with the so/li-

citudinis to which Saint Benedict refers in order to achieve this goal? In other

words, is it possible to dissociate the elements which are integrated into a specific

logic of punishment and to combine them with elements belonging to a foreign

structure (e.g. combining self-redemption with outside coercion) ?

We believe that these questions have a general meaning for penal theory, which

has a marked tendency for highly selective transpositions and for hybridization.

Transposition does not only occur between different logics of punishment, as when

the State is compared to a Pater Familiae who must be firm with his children in

order to teach them good habits. It also occurs (i) when ancient penal practices are

rediscovered and an attempt is made to introduce them within the present context,

(il) when elements from very different cultures are borrowed in order to be applied

(in theory) in the Western industrialized and labor-intensive context and (iii) when

concepts from a scientific discipline — e.g. economics — are used in penology.

Transposition is a fundamental process of innovation and we are not opposed

in principle to its use in penal theory and practice. However, we are convinced that

this process should be guided by a great degree of caution in the field of penology.

We once attended a conference on the reform of sentencing where a speaker, who

was given to draw parallels between criminal justice and economics, asserted as

self-evident that if airfares were greatly increased, fewer people would fly. From

this, it seemed for him to follow with no less evidence that if criminal sanctions

were more severe, less people would violate the law. AIl that was needed for this

analogy to break down was to notice that travellers are reasonably certain that they

will have to pay for their tickets, whereas offenders do not expect to be caught. That

the speaker had overlooked this difference was all the more unfortunate, since he

was an appointed member of the U.S. Sentencing Commission. Examples such as

these could be multiplied. They all invite prudence.

2. PUNISHMENT FOR CRIME

We shall now focus on criminal punishment and discuss some of the problems

related to this concept and to its application. The previous general discussion im-

plies that the notion of punishment has a wider scope than that of criminal punish-

ment. It might then be asked what is the specificity of criminal punishment. There

are two ways of answering this question, both of which seem to be unsatisfactory.

— 115 —

The first kind of answer asserts that the distinctive feature of criminal punish-

ment lies in its legal basis. Criminal punishment is imposed on offenders guilty of

wrongdoing that has been criminalized by the law. By definition, there is no “crime”

prior to legal criminalization (Jareborg, 1988 : 77). This answer identifies correctly

what is specific to criminal punishment. However, it makes it appear as if crimes

were the product of legal conventions which are to a certain extent arbitrary.

If we push the inquiry one step further, we may hope to acquire a completely

satisfactory answer. We could ask why it is that certain kinds of behaviour are

criminalized. There are many answers to this question, the most frequently given

being influenced by the perspective developed in Durkheimian sociology : the kind

of wrongdoing which is defined as a crime is the one that most deeply offends the

values of a society. Another answer is that crime is behaviour which most threatens

the State. All these answers fail to a certain extent in that they leave out important

exceptions : Certain kinds of behaviour should be, according to the criteria selected,

criminalized and they are not; other kinds of behaviour should not be criminalized

and they are. For example, betrayal is profoundly abhorrent behaviour, the figure

of Judas being an archetype of guilt. Yet, excepting high treason against the State,

betrayal is not criminalized. Not only is it not defined as a crime but it is actually

encouraged by the penal system, which must rely on informers to solve criminal

cases.

The point of these remarks is that the concept of criminal punishment is in

itself problematic. On the one hand, a strictly legal definition makes it appear

gratuitous; on the other land, no extra-legal criteria seem to be consistently applied,

so that we are always moving from legal to extra-legal criteria. This original am-

biguity is not the only one and we shall now review major dilemmas and uncertain-

ties that relate to criminal punishment.

2.1. The Need for a Justification of Criminal Punishment

As it was remarked by Jareborg (1988 : 75) and several others, the penal

system as we know it is a fairly recent institution, which is about 200 years old.

Oddly enough, the birth and development of this system coincides with a crisis in

its legitimacy, which can be dated back do the period of the Enlightenment. The

question of the justification of punishment has been on the criminal law agenda

since the writings of Voltaire and Beccaria; it now seems to us to be a question that

is both natural to ask and fundamental to answer. We would like to point out that

this quest for justification may have undesirable consequences.

A complete archeology of punishment is yet to be written and we have no

systematic knowledge of the history of penal law. Still, one thing clearly stands out

of the research undertaken on ancient penal law and out of the writings of philos-

ophers such as Plato (e.g. Driver and Miles (1975) on Assyrian Laws; Driver and

Miles (1968) on Babylonian Laws, Gernet (1979; 1982) on ancient Greek Law and

Benveniste (1969) on all ancient Indo-European systems of law). Criminal punish-

— 116 —

ment is referred to as a given fact, which is in no need of justification. Not only is

legal punishment seen as relatively unproblematic and justified but there is also a

tendency to consider it as a moral obligation. For example, in his study on the

vocabulary of Indo-European institutions Benveniste (1969 : 50) discusses the

semantic association between fimè (honor), tisis (revenge) and poinè (compensation

for a crime; this word is the root of the latin poena, which means punishment). An

interpretation of this association is that a crime is a violation of the victim’s honor

(timè), which can only be restored by punishing the offender. Hence it is asserted

in Plato’s Laws (IX, 871b) that the relatives of a murderer’s victim are under an

obligation to prosecute the offender. However, before doing so they must perform

rituals of purification, because their own honor is blemished by the crime per-

petrated against their parent (The Laws, IX, 866b).

Our study of other forms of punishment, such as monastic discipline in the

Middle Ages, also suggest that punishment is viewed as self-justifying. If that be

the case, it might be hypothesized that the search for an external justification for

punishment is bound to be frustrated. One is struck in this regard to see how some

propositions in penal philosophy are close to being tautologies.

In his noted article on punishment, Quinton (1954) gave a strictly logical in-

terpretation of the retributivist thesis that an offender’s guilt is a necessary condition

for his/her punishment (actually, some retributivists go further than that and assert

that guilt is also a sufficient condition for punishment). In Quinton’s reformulation,

what the retributivist claims is that “punish” is a member of a special class of verbs,

so that it is (logically) improper to say “I am going to punish you” unless you are

guilty, just as it is (logically) improper to say “I promise to do this” unless it is in

my power to do it. (The sentence “I promise to do something which is not in my

power” is manifestly absurd; so is “I am punishing you for something you have not

done”). This kind of analysis is greatly influenced by Wittgenstein’s philosophy,

particularly in The Blue & Brown Books, where Wittgenstein stresses the contrast

between the logical features of different classes of verbs.

Linguistic analysis is a powerful tool. It can be used to show how misleading

are questions such as “Do all societies disapprove of murder (rape, theft and so

forth)?” Words like “murder”, “rape” or “theft” have both a descriptive and a

normative content : murder is a guilty homicide, rape is the violation of a person’s

body, theft is unlawful possession. To ask whether a society disapproves of murder

is really to ask whether this society is consistent in its use of language : does it still

condemn what it has already disapproven of by calling it murder (rape or theft)?

The question about whether societies disapprove of murder (rape or theft) is a fitting

example of what Wittgenstein described as metaphysical question, “the characteris-

tic of a metaphysical question being that we express an unclarity about the grammar

of words in the form of a scientific question” (Wittgenstein, 1958 : 35, emphasis in

original text).

The preceding analyses may be informative, but they are also considerably

reductive. The retributivist’s justification dissolves into a logical point about the

semantics of the verb “to punish”. The naturalist’s claim about the universality of

— 117 —

blame for certain kinds of behaviour is reduced to a tautology asserting that to

blame is indeed to reprove. These analyses could be interpreted as a reminder that

punishment is really what it is implied to be in the ancient codes of law : a self-im-

posing phenomenon which does not rest upon a reality that is more fundamental or

more ultimate. Hence, when attempts are made to derive punishment from an un-

derlying principle, they either result in tautologies or metaphysical statements.

The conclusion of this discussion is not that punishment cannot truly be

justified and that one ought not to try. It is rather that the very meaning of the issue

of justifying punishment is ambiguous. This equivocity is such that it stands as an

invitation for a subversion of the issue. For example, one panelist completely turned

the tables during a workshop on the justification of punishment and asked the

audience what was the moral justification for capping sentences of incarceration at

5 or 8 years, as it has been proposed by several proponents of just deserts. The

question seemed to take everyone by surprise and no answer was offered.

2.2. What should be the object of justification ?

Having discussed the concept of justification, we shall now discuss punish-

ment. Even when taken in its legal sense, punishment is a wide-ranging notion.

Hence, asking for a justification of punishment may still not be precise enough.

First of all, instead of talking abstractly about punishment, we should base our

discussion upon the concept of a penal system. Then, we should distinguish between

at least three components of such a penal system, namely (i) the process of crimi-

nalization and its outcome, which is the criminal law itself, (ii) the adjudication of

guilt and innocence and the determination of a sentence upon the conviction of an

offender and (iii) the execution of the punishment by the correctional sub-system.

Further distinctions could be made within these components. For instance, in most

Western countries a sentence of incarceration consists of a period of imprisonment

and a period during which the offender is released on parole into the community.

One may ask for a specific justification for parole or for some other aspect of

corrections. This is not what we intend to do in this paper. All three components

— the criminal law, sentencing and execution of the sentence — will be taken as

wholes and we will not differentiate further within a component.

For the purposes of our discussion, we will also draw a distinction between

what we shall call a formal reason and what we shall refer to as a substantial

justification. A formal reason is an answer to the question of justification that takes

the following form : the reason for doing X is that one is under a legal obligation

to do so. Of course, the inquiry could be pushed back a step further and one could

demand a substantial ground for obeying the law. Within the limited scope of this

paper, we shall assume that there are a number of justified grounds for obeying the

law and we will not discuss this issue any further. À substantial justification is the

demonstration of a connection between a ground and a consequence, which is not

wholly dependent on convention.

— 118 —

2.2.1. The execution of sentences

Beginning with the last one, we shall now review the components of the penal

system and raise the issue of justification with regard to each of them. The third

component that we previously identified — the execution of sentences — is a good

example of a penal practice that can be justified by formal reasons. There is clearly

a legal obligation to execute the sentence that was imposed by the court. The real

problem with the execution of sentences is not to find an answer to question why

sentences should be executed. It is that the obvious answer — the legal constraint

— is often in contradiction with actual practice. Various factors such a prison

overcrowding make it very difficult to execute sentences of incarceration as they

were determined by the judge. Similarly, the volume of the caseload of probation

officers in the U.S. has seriously undermined the public credibility of this sanction

(see Tonry, 1990). In spite of these difficulties, formal reasons do provide a justi-

fication for the execution of sentences.

2.2.2. The determination of sentences

The justification of sentencing is an issue which is much more complex that

the preceding one. First, there is in penal literature a tacit identification between

punishment and sentences (see Canadian Sentencing Commission, 1987 : 105-107

— this report will be quoted as CSC, 1987 in the remainder of this paper). Hence,

most attempts to justify punishment focus exclusively on sentencing and do not

provide any justification for criminalization. It is assumed that if sentencing is

justified, then punishment in all of its aspects is also justified. This is a serious

mistake. The question of justifying criminalization is wholly distinct from the ques-

tion of justifying sentencing. According to a consequentialist perspective, rehabili-

tation can be used as a justification of sentences. However, it provides no ground

whatsoever for criminalization : it would be absurd to argue that we should create

new offences in order to rehabilitate those who would eventually be found guilty

of these offences. Furthermore, we shall try to argue that the really substantial issue

with regard to the justification of punishment should be raised at the level of the

penal law itself and not at the level of sentencing.

As it is well-known, there are two competing ways of justifying punishment,

namely the consequentialist or utilitarian perspective and retributivism. We have

already implied that the utilitarian perspective could not account for criminalization

and that it was limited to provide justification for sentencing on the basis of its

social benefits (the rehabilitation of offenders, the deterrence of known or potential

offenders and the incapacitation of the dangerous ones). Consequentialism does

provide what we called a substantial justification, for sentencing. However, this

justification is weak.

— Much has been made about the difference between the questions of why we

ought to punish and of how or how much we should do it. There is also an important

difference between the questions of why and of what for (this difference is clearly

reflected in German through the distinction between warum and wozu). Consequen-

tialism is basically an answer to the question “what for”. Not only are teleological

— 119 —

accounts reputed to be the weakest in philosophy — the end being given as the

starting point —, but they conflict with ethics in fundamental ways. The basic

formula for consequentialism is that the end justifies the means and it allows one

to justify scapegoating and all sorts of immoral practices, which do produce short-

term social benefits. Secondly, the goal of general deterrence, which fosters the

imposition of exemplary sentences, violates the fundamental ethical principle that

human beings are ends in themselves and should not be used as means to fulfill

goals, which are external to them (e.g. increasing the punishment of an offender

beyond what is deserved in order to deter other potential offenders). Significantly,

both general deterrence and incapacitation have been rejected as proper goals of

sentencing by the Law Reform Commission of Australia (1988 : 18, par. 37).

— Without getting into a polemic about whether any of these utilitarian goals

are actually achieved and whether, for instance, rehabilitation “works”, it can be

asserted that evaluation research on the degree to which these goals are achieved

has resulted at best into a very general and indulgent presumption that they are to

a certain extent accomplished (CSC, 1987 : 144). This presumption is so weak that

it provides no basis for a sentencing policy and a fortiori no substantial justification

for punishment, as a whole.

Because of its orientation towards past behavior, retributivism may be in a

better position to give an answer to the question of why to punish. The retributivist’s

answer is deceptively simple : someone ought to be punished because that person

is guilty of blameworthy and wrongful behavior. However, this answer is not en-

tirely satisfactory in the case of /egal punishment. For, as we have previously seen,

it is not all blameworthy and wrongful behavior that is the object of legal punish-

ment. It would seem that all we have to do in order to solve this difficulty is to

narrow the answer to crime, as does Jareborg (1988 : 107). Jareborg asserts that a

sentence ought to be imposed on someone ‘“because the person has committed a

crime”.

This new answer generates a problem that has been discussed by Wasserstrom

(1980) and many others. The concepts of crime of legal punishment are mutually

dependent and are used in their respective definitions (a crime is wrongful behavior

that entails legal punishment; legal punishment is what is imposed on persons

convicted of a crime). It would then appear that the retributivist’s answer is guilty

of circularity. However, not all logical circles are necessarily vicious and this one

can be used to make two important points.

The first point was made several years ago by Quinton (1954) and is reiterated

in various forms by several authors, such as Duff (1986). According to this view,

the core of retributivism is to assert that the connection between punishment and its

justification is logical rather than factual. As we have previously seen, Quinton

claims that to say ‘“this person ought to be (legally) punished, but is not guilty of

any offence” is to utter a logical contradiction. For Duff (1986), the criminal law is

a set of requirements that logically entail punishment (the infliction of suffering)

when they are violated. Although this interpretation of retributivism may appear

controversial, we believe that it is correct in arguing that for retributivists the rela-

— 120 —

tion between punishment and its justification is stronger than a contingent connec-

tion between two facts (or sets of facts). Recent research into the logical meaning

of “following a rule” (Kripke, 1982) reveals how complex is the question of finding

to which language-game the criminal law would belong. The common identification

between the criminal law and legal threats could be shown to be little else than an

oxymoron. The concept of law entails a strong element ef obligation, whereas there

is no logical implication that a threat must be carried out (indeed, the whole point

of a threat is to produce an effect without having to be carried out; hence, there is

à “family resemblance” between “threatening and bluffing”). In its explicit formu-

lation — at least in Canada —, the law does not say “If you do X, you will suffer

the consequences Y” but rather “Anyone doing X is guilty of a crime and must

suffer the consequences Y”.

However sketchy, the preceding remarks lead us to our second point. If we are

right in believing, with others, that retributivism is closer to logical analysis than to

empirical research, it follows that it provides a formal justification for legal punish-

ment, rather than a substantial one. Our reasoning was the following. We began by

pointing out that according to retributivism a sentence ought to be imposed on an

offender, because that person has committed a crime. Then, we emphasized that the

connection between crime and legal punishment was so compelling that it ought to

be conceived as a quasi-logical relation, legal punishment stemming by necessity

out of a criminal conviction. A crime, however, is not a natural fact that precedes

the process from which it is the outcome. The definition of crimes — criminaliza-

tion — is a legislative process that results in the production of the criminal law and

which must itself be accounted for. In the same way that we concluded that the

execution of sentences was formally justified — legally compelled — by the im-

position of sentences by the courts, we now claim that sentencing is itself nothing

but a consequence of the enforcement of the criminal law. It is, then, only at this

primary level that the substantial justification for the two other derivative levels of

punishment — sentencing and the execution of sentences — is to be found.

Unfortunately, much less effort has been devoted to justify criminalization

rather than sentencing. It may be that the justification of sentencing has drained all

the resources of inquiry or that the answer of this question appears to be obvious.

Jareborg (1988 : 107 and 113) seems to believe that all questions of justification

(why-questions as opposed to how-questions) have fairly obvious answers. He

writes (1988 : 107) :

“In our countries, today the answers are fairly obvious : Criminalization : to

suppress certain types of action or omission (general pervention)” (1).

(1) Jareborg is careful to specify that general prevention does not coincide with general

deterrence. General prevention “has also to do with people’s ‘internalization’ of the norms of

the criminal Law” (Jareborg, 1988 : 121, note 2).

— 121 —

2.2.3. Criminalization

Our goal in this discussion was to argue that the main issue of justification

concerns criminalization, rather than sentencing or the execution of sentences. Once

you have criminalization, the other stages of the penal process simply follow. It is

outside the scope of this paper to embark upon a full investigation of the substantial

justification of criminalization. However, we would like to suggest that the answers

are less obvious than it might appear at first sight. An indication of the seriousness

of the difficulties, is that Jareborg’s answer is not really an answer to the question

why but to the question what for. This represents a shift towards consequentialism,

which contrasts with his general position, usually much closer to retributivism (in

this case, just deserts).

More fundamentally, we believe that a systematic examination of the criminal

law would not only reveal that it performs other functions than general prevention

— a suppressive function — but that it may also perform functions which conflict

with general prevention. In certain instances, the function of criminalization is to

enable the police to exercise repressive powers. In Canada, Part IV.1 of the Crim-

inal Code makes it a criminal offence to intercept private communications, through

wiretapping or other such practices, unless the interception is authorized by a judi-

cial warrant. Âs it was recently acknowledged by the Supreme Court of Canada

(Duarte v. The Queen, 1990), the legislator’s intent was not to suppress the inter-

ception of private communications but to make it legal for the police (the intercep-

tion of private communications by ordinary citizens was not the problem to be

solved, because, with few exceptions, only agents of the State had the power to

require the help of telephone companies for installing wiretaps).

At the present time, a Bill is being tabled before the Canadian House of Com-

mons to recriminalize abortion. Abortion will require medical authorization accord-

ing to widely permissive criteria in order not to be a criminal offence. It is claimed

— in our mind, with justification — that the aim of this legislation was to shift to

the medical establishment the responsibility for regulating abortions, because the

State finds this responsibility too controversial to assume it. Needless to say, other

examples could be discussed, that would all suggest that criminalization is a process

that is less univocal than commonly thought.

2.3. On what ground(s) should a person be liable to legal

punishment ?

The most recent and influential version of retributivism — just deserts — gives

paramount importance to the principle of proportionality. This principle can only

help us to resolve the issue of the quantum of punishment (how much punishment).

It would be spurious to use it to answer the question of why to punish (one is not

justified to punish only because one wants to impose proportionate sentences). Since

proportionality is so clearly an answer to the question of how much and not to the

question of why, there is a tendency among just deserts theorists to believe that the

— 122 —

distinction between these two questions is always as sharp as it is obvious, and that

it can therefore serve as a framework to discuss all issues concerning legal punish-

ment. Accordingly, the question of why to punish is summarily resolved by stating

that the only legitimate ground for punishing is the commission of a criminal of-

fence. AIl other issues, such as the role of the criminal history of the offender or

the expected consequences of punishment, are treated only as determinants of the

quantum of punishment — as possible answers to the question of how (much) to

punish.

Although we recognize that the just desert approach has led to fundamental

insights, we also think that it oversimplifies the issues. First, it is too prescriptive

to take into serious account the discrepancy between norm and fact. Second, its

dichotomy between questions of why and questions of how (much) overlooks the

fact that there is considerable overlapping between these questions. Last, the con-

cept of a quantum of punishment becomes problematic, as soon as it is used to run

accross different penal sanctions, instead of measuring the severity of variations

within one kind of punishment. For example, a custodial sentence of three years is

obviously more severe than a custodial sentence of one or two years, the same

reasoning applying to variations within any one kind of sentence, which is ex-

pressed in units of time or money (e.g. two years of probation or a $ 1000 fine).

However, comparing between penal quantums becomes much more ambiguous

when different kinds of sanction come into play (according to what ratio should the

amount of a fine, the duration of a term of probation and the length of a custodial

sentence be compared ?) Postponing our judgment on whether an alleged ground for

punishment is legitimate or not and also on whether we are answering a question

of why or of how (much), we shall list the following grounds for legal punishment.

Legal grounds : persons are punished for what they did. What a person did is

interpreted here in the narrow sense of one or several criminal offences, of which

that person has just been convicted.

Personal grounds : persons are punished because of who or what they are. This

category is wide and includes all attributes of persons which may explain why they

are punished (race, ethnic origin, sex, previous criminal history, psychological at-

tributes such as dangerousness, etc.).

Situational grounds : persons are also punished because of the situation they

find themselves in. For example, juveniles are often sent to various kinds of insti-

tutions and deprived of their liberty neither on the ground of the offence they have

committed (which may be petty), nor of any failing in their character, but only

because of their situation (they have no home, their family is considered a crimino-

genic environment, they are abused by their parents, etc.).

What we are calling personal and situational grounds are not normally con-

sidered to be sufficient to warrant a criminal sanction. Nevertheless, we all could

quote numerous examples, drawn from history, where personal or situational

characteristics became grounds for punishment by the State. We shall not dwell on

these contradictions between historical fact and legal principle. We will rather raise

— 123 —

difficulties which arise though ambiguities and/or contradictions on the level of

principles. As previously remarked, the only acceptable ground for legal sanctions

is the commission of a criminal offence. It seems to follow from this that features

relating to the offence — its seriousness, as defined by harm and culpability — play

a prominent role in the determination of a sentence. Although it is true to a large

extent, this statement does not take into account the complexity of the issues, which

we shall now attempt to suggest by briefly discussing three problems.

First, we need to make a distinction between the commission of an offense as

being the main ground for a sentence and a criminal conviction as being only a

triggering mechanism for the penal process. In criminal procedures against high

profile offenders (persons involved in organized crime, in white-collar crime, in

political corruption or other forms of political deviance), the offence of conviction

is but a nail overpinning a criminal sanction, which is determined by other factors,

such as who the offender is.

Secondly, our concept of a criminal offence should be reviewed. A criminal

offence is conceived (i) as the intentional act of a rational agent, (ii) which occurs as

an event at a certain point in time. Because of the extraordinary proliferation of penal

laws, the concept of intentional behavior should be seen as spurious, in a considerable

variety of cases. This can be illustrated by traffic regulations : there are so many rules

that violating them is not so much a deed as it is a state in which any one driving a

motor vehicle finds him/herself. (The actual violation is the product of a selection,

which is made among several available possibilities by a traffic police officer). More

fundamentally, there are offences, such as vagrancy, which are not at all events, but

reflect a state of being. In these cases, it is wholly artificial to say that a person is

being punished for an offence. The offence exactly coincides with the situation in

which the person is (e.g. being homeless). Consequently, a person is, in these cirum-

stances, being punished only because of his/her situation.

Finally, there is the issue of the competing role in sentencing of the prior

criminal history of an offender vis-a-vis the seriousness of the offence of conviction.

Although it is agreed, on principle, that a person’s prior criminal history should not

be the main determinant of a sentence, sentencing abides by a tacit rule. The more

serious an offence is, the less influential is the prior criminal history (e.g. a first

offence of murder usually carries the most severe penalty). Conversely, the less

serious the offence is, the more determinant is the past criminal record (a chronic

shoplifter may be in the end imposed a severe custodial sentence).

The predominant role of the prior criminal history might be explained by the

kind of sentencing goal that is being pursued. When this goal is the incapacitation

of the most dangerous offenders, the past criminal history is used as an important

clue for predicting the future behavior of the offender. Selective incapacitation has

been the object of much criticism. However, even within a retributivist approach,

the importance for sentencing of the prior criminal history remains ambiguous. For

a retributivist, punishment is an attribution of blame. À person may be blamed for

doing something and also for failing to do something (e.g. criminal negligence).

Hence, a recidivist may be blamed both for his/her criminal conduct and for having

B 0 E

failed to learn from past punishment. This argument can be stated in several ways.

We could say, for example, that a repeated challenge of the criminal law indicates

an increasingly defiant social attitude, which deserves more blame. It could be

objected that this increase in defiance is not per se a criminal offence and that it is

not codified in the criminal law. To which it can be retorted that this is precisely

the hub of the issue : the notion of blameworthiness, on which just deserts rests at

least in part, is not explicitly codified by the law and its application is to a large

extent discretionary.

Which ever way it is justified, the prior criminal history of an offender is a

core feature of sentencing, although this may conflict with principles of justice.

Sentencing treatises such as D.A. Thomas (1979 : 8-9), and the two-dimensional

grids used for the formulation of sentencing guidelines all testify to the fact that

sentencing is an attempt to fit both the offence and the offender.

2.4. Antinomies

Speaking broadly, antinomies are contradictory propositions which can equally

be demonstrated. Christie (1981 : 13-20) makes the point that in criminal law we

3

room” instead of ““cell”

tend to use euphemisms — ““inmate” instead of “prisoner

,

and so forth — as a shield to hide the fact that the main function of the penal system

is to deliver pain. He is, of course, quite right. On the other hand, by insisting that

we use language that corresponds to the harshest practices within the penal system,

we may be inviting an increase in the degree of coercion applied in the determina-

tion and the execution of the less severe penalties. For example, a probation officer

might see it as his duty to make the life of the persons whom he supervises as

miserable as possible to live up to the harsh reputation of the system.

There are many more antinomies in criminal law and practice. We shall briefly

focus on one particular discordance, because it concerns the application of the

principle of proportionality, which is fundamental in criminal justice. As it was

noted by Durkheim (1968), proportionality is probably the oldest rule in penal law.

In ancient laws, there was an attempt at a literal application of the principle, which

often generated barbarity. The punishment was to be as much as possible a mirror

image of the crime. For example, injuries inflicted on a victim were to be met by

an equivalent mutilation of the offender to be punished. In modern times, Jeremy

Bentham tried to develop a system of penalties which embodied the ideal of being

both proportionate and symbolically transparent (e.g. an offender convicted of libel

would be publicly exposed with his tongue pierced by an iron pen — see Bowring’s

Edition of Bentham’s works, Vol. 1, p. 408).

For all its excess, the interpretation of proportionality as a requirement that the

punishment precisely mirrored the offence was an answer to a difficulty that is quite

real. Proportionality offers intuitive guidance in extreme cases (e.g. you do not fine

a murderer; you do not sentence a person to a long term in jail for a first offence

of shoplifting). However, for all the cases that lie in between the extremes, the

— 125 —

principle of proportionality must be supplemented by reason and explicit guidelines.

The magnitude of the difficulties surrounding the application of proportionality can

be shown by contrasting the logic of proportionality that prevails in the case of

property offences and in the case of offences against the person. In the case of

property offences, strictly compensating for the loss incurred by the victim is not

considered to be enough. Punishment begins when the offender is compelled to repay

more than was taken. For example, Plato states in The Laws (857, a and b) that the

victim should be repaid twice the value of what was stolen. That kind of logic still

prevails today in criminal and civil law, which allow for punitive damages.

The interpretation of proportionality follows a different kind of logic in the case

of offences against the person. The debate on capital punishment has mislead us into

believing that the death penalty is the most severe punishment that can be inflicted.

That is much too simple. At least until the 18th century, a distinction was made

between capital punishment (e.g. by hanging or beheading) and “atrocious death”.

AII that one needs to do in order to learn the meaning of “atrocious death” is to read

the description of Damiens’ execution at the beginning of Foucault (1975). The will

to inflict pain peaks into such a delirium that one would beg to be plainly killed.

Today, not only has “atrocious death” disappeared as a legitimate way of executing

someone, but some governments have appointed commissions to enquire into the least

painful way to inflict death. Although the degree of suffering that accompanies capital

punishment may be the object of infinite variations, very few people would now argue

that a murderer who has inflicted a lot of pain upon his victim should be executed in

the same way that he has killed. It is seen to be enough (or too much) that the murderer

be executed with the urbanity that is required by civilisation.

We have used an extreme case, that of capital punishment, to highlight a

contrasting application of the principle of proportionality. Even if the punishment

does not involve as much pain as the offence, in the case of offences against the

person, it is felt that there are thresholds that ought not to be crossed, because only

inhumanity lies beyond them. À very different ratio is applied in the case of of-

fences against porperty. There might be a wide array of reasons explaining why we

do not feel that a property offender has been punished if that person is made to

compensate for no more than the stolen property. Similarly, there is no dearth of

explanations for why the same kind of reasoning cannot apply in the case of murder

and, generally speaking, of offences against the person. However, we believe that

whatever may be the arguments, the issue will not be completely resolved. By

stating this, we do not mean that the issue is an emotional one, which is not

amenable to reason, but, rather, that it is a true antinomy. À true antinomy sets a

limit to our rational ability to definitely settle an issue.

3. REFORM AND REALITY

The contrast between penal ideal and penal reality is often painful and could

be the object of a book. We will briefly make four points, in relation to penal

— 126 —

practice. Excepting the first one, all our other points are closer to methodology than

to actual description of what is presently happening.

3.1. Criminal Justice Personnel and Community Corrections

We believe that most reform projects in criminal law are not based upon a

careful examination of what the penal system can reasonably be expected to

achieve, in the best of circumstances. We would be particularly critical of any

reform that would depend to a significant extent on the quality of the relationship

between persons who are being punished and those responsible for the execution of

a penal sanction. The distinctive feature of this relationship is coercion, which is at

the outset detrimental to the establishment of a positive relationship and which is

in the long run incompatible with it.

We are not suggesting that persons working in the field of criminal justice lack

human qualities or are incompetent. These persons are asked to blend assistance

with control. This may be achieved, for a time, in other kinds of environment than

the penal system; we doubt very much that it can be successfully achieved within

the latter environment.

A common saying of the police is that in order to arrest a speeding motorist,

they have to drive even faster than the offender. Research findings (Manning :

1980; Brodeur, 1981) indicate that the universes of crime and law enforcement are

structured in much the same way and actually mirror each other. For example, a

U.S. prison has all the bad features of a black urban ghetto — overcrowding,

violence, drugs and so forth —, plus an extra measure of punishment. It is extremely

difficult for someone working full-time in this kind of environment not to harden

and to adopt the attitudes prevailing there and which, needless to say, are not

conducive to the reformation of anyone.

It may be that community corrections, where an offender would be in contact

with a number of persons who are not criminal justice professionals, and where the

turnover of participants in the correctional process would be high, offers the only

hope of avoiding the hardening of attitudes that we have just discussed.

3.2. Contrasts

This brief discussion will concern methodology. Although it is customary to

contrast reality with ideals, there are actually two kinds of comparison that can be

made. Our current penal practices can be compared to an ideal model. They may

also be compared to other penal practices, which are much below our standards of

law and humanity (e.g. the situation prevailing in South Africa and in other coun-

tries that systematically violate human rights).

However, we often meet with objections, when we try to make a point about

criminal justice in general — e.g. its brutalizing effect — by referring to other

— 127 —

countries which are more repressive and where the due process of law is usually

circumvented. The situation prevailing in these countries is said to be too extreme

for us to draw any meaningful conclusions about our own system. We believe that

this kind of objection is misguided.

The gap between an ideal penal system and our own is certainly as wide as

any distance separating us from the exercise of repression in countries which pay

no respect to human rights. Yet this contrast between ideal and fact does not prevent

us from undertaking conceptual analyses which are very remote from current penal

practices. In the same way, we should not hesitate to investigate punishment in the

context of societies which are much more repressive than ours, with a view of

shedding light on our own criminal justice system. Penal systems are inspired by

justice, but they also cast a shadow, which is barbarity. We believe that we can

learn as much from its shadow as from its inspiration.

3.3. Benign neglect

With the exception of the panic over drug abuse, there does not seem to be at

present a high priority attributed to penal reform. In Canada, the Law Reform of

Canada has issued more than 91 reports and working papers; a royal commission

on sentencing was also appointed in 1984 and released its report in 1987; sub-

sequently, a Parliamentary committee was created to proceed a vast consultation on

the recommendations of the royal commission on sentencing (Canada, 1988). Not

à single reform was generated by all this research activity.

There are numerous explanations for this inertia. We shall submit one hypothe-

sis that we have tested in conversations with officers of the federal government. The

government of Canada has in fact accomplished a comprehensive reform in 1984.

The whole field of juvenile justice was reorganized. Not surprisingly, the reform

did not produce all the effects it intended. More unexpectedly, however, it also

generated effects that were not intended and are now seen by many as undesirable

(an increase in the number of youths deprived of their freedom; see Markwart and

Corrado, 1989). The fact that the reform of juvenile justice has only achieved partial

success has made the government rather suspicious of global reforms, the im-

plementation of which is very difficult to keep under control.

On the other hand, the fundamental diagnosis about adult justice that was made

by the Canadian Sentencing Commission (1987) is that it is in a state of disorder

because all the changes that were introduced into the system since 1892 were made

on an ad hoc basis and always concerned small portions of that system. To put it

in another way, any limited reform of the criminal justice system is bound to

increase the problems rather than solving them.

The present inertia may in part be explained by the dilemma that we have just

described. On the one hand, the great difficulty of keeping the implementation of a

global reform under control has made the government increasingly reluctant to

embark upon this course. On the other hand, limited reform only increases the

— 128 —

complexity and the inefficiency on the penal system. This predicament is not uniqu-

ely Canadian. If the U.S. recent reforms that were both comprehensive and ambi-

tious have basically resulted in a massive increase of the prison population, although

this was not their original purpose. Hence, there may be a growing consensus that

no reform is for the best and that it would altogether be better if the criminal justice

system were the object of a benign neglect.

3.4. Public and Media Input

The Canadian Minister of Justice has recently tabled a Bill in Parliament. Its

purpose is to increase the maximum penalty for arson from the present 14 years to

life imprisonment. It is not enough to say that the content of the Bill runs counter

to all recommendations that were made in Canada, during the last ten years, con-

cerning criminal justice. The proposed legislation is in contradiction with what we

know with the most certainty in this field.

First, there is general agreement on the fact that it is the certainty rather than

the severity of punishment that deter potential offenders. Second, it is also agreed

that persons suffering from mental illness cannot be deterred by the law. The pro-

posed legislation on arson takes no account of these facts. Arson has one of the

lowest police clearance rates; less than 15 % of these crimes are solved by the

police. Hence, there is absolutely no certainty of punishment. Furthermore, a sig-

nificant number of arsonists suffer from mental disorders (e.g. pyromania) and are

insensitive to legal threats.

It might be asked why the government is proposing such useless legislation.

The answer is fairly obvious. There have been in recent years a number of cases of

arson that received very extensive media coverage. In addition to that, the toll in

human lives — particularly firemen — has been high (according to the report of

the Fire Commissioner of Canada, arson was the cause of 42 deaths and serious

injuries to 456 civilians in 1988). The Minister is bowing to media and interest

group pressure (The Canadian Association of Fire Chiefs, the Canadian Association

of Police Chiefs, the Association of Canadian Fire Commissioners and Fire Mar-

shals and the Insurance Crime Prevention Bureau all had their representatives meet

with the Minister on several occasions). However, this is only making a token

gesture, which is costing very little money and which is likely to be favorably

reported by the press. Unfortunately, the Minister also perpetuate the myths that

increasing penal sanctions in an efficient way of protecting the public and of solving

a social problem.

It seems to us that penal reformers have not given enough attention to the

influence of the media and the lobbies in the development of criminal justice policy.

There are noted exceptions such as Wilkins (1984) and Hulsman (1982). Hulsman,

however, is typical in reducing the issue to a problem of public misinformation by

the media, which apparently could be solved by a campaign of education. This is

unfortunately too simple.

— 129 —

Events can be quantified in two ways : by their frequency and also by their

intensity (their power to generate strong emotions and lasting memories). It is a

common mistake to believe that any problem which is generated by intense rather

than frequent events is a false problem, that can be dispelled by merely stating that

it is a false problem. No amount of statistics showing that compared to other pro-

fessions few police officers are killed in the line of duty will convince the public

that police work is not dangerous. It the same way, showing that the number of

deaths caused by drugs is more than fifty times lower than the fatalities attributable

to the abuse of alcohol and tabacco, will not persuade the public that there is no

drug problem.

These considerations raise a question for which we urgently need an answer.

How can we associate public opinion to penal reforms which are not intented to

produce an escalation in punishment? Answering this question is urgent, due to the

fact that present governments tend to adjust their policies to the results of public

opinion pools.

4. CONCLUSION :

REASONABLE DOUBT IN SENTENCING

Among the problems that we have discussed, there are difficulties that can

eventually be resolved. In particular, a certain number of the practical difficulties

that we have been raising in the last part of this paper may eventually be remedied.

However, we believe that some of the theoretical problems and antinomies that we

identified do not admit of a solution that could be both complete and uncontrover-

sial. We are now imposing punishment, but we know little of its moral justification,

its nature, the principles of its application and its impact, both for an individual and

for the community. It is doubtful whether this situation will improve significantly.

In conclusion, we will briefly reflect on some of the implications of the limits of

penal knowledge.

Within the framework of a cartesian penology, the first and obvious implication

of those limitations would be the need for restraint in the imposition of punishment.

This crucial point can be the object of a further development.

The presumption of innocence is said to be one of the foundations of our

criminal justice, although its actual importance is in practice much diminished by

the very high number of offenders pleading guilty. When the State authority for

prosecution makes the decision to charge an offender and to take the case to court,

the offender is in fact presumed guilty, although that person enjoys the legal pre-

sumption of innocence. We should try to examine what would be the equivalent of

the presumption of innocence at the level of sentencing. The rationale for the pre-

sumption of innocence is that guilt must be proven beyond a reasonable doubt, since

a criminal conviction makes someone liable to the harsh consequences of punish-

ment.

— 130 —

One way of expressing the general result of our preceding analyses would be

to say that the only thing about punishment that is beyond reasonable doubt is its

painfulness. All else — justification, nature, determination, execution, impact —

can be questioned. Hence we would make the following proposal. A person con-

victed of a criminal offence is legally presumed to be deserving of punishment, but

would enjoy in fact a presumption of mitigation or assuagement, because of the

radical uncertainty which is attached to all the aspects of penal practice. This pro-

posal is only an application of the general principle that drastic measures should be

imposed upon an individual only if we are morally justified to do so and reasonably

sure of what we are doing. None of these conditions are adequately met in the

imposition of criminal punishment.

A second feature of a Cartesian penology would be to generalize the reasoning

underlying the need for a presumption of mitigation in sentencing and call for a

minimalist approach in criminal law. Such a minimalist approach would be charac-

terized by two features. At the level of theory, we would try as much as possible

to frame our questions in the negative. Instead, for example, of asking what is the

justification for criminal punishment, we would impartially investigate the con-

sequences of renouncing punishment in certain cases or circumstances. To state our

point more generally, we believe that we should substitute “limiting impunity” to

‘doing justice” as the main topic for conceptual inquiry.

On the practical level, we should take an extremely sober perspective on what

the criminal justice system can positively achieve. Whenever we consider attributing

a positive function to the penal system — such as treating or training offenders, or

solving a social problem — we should ask whether a better result would not be

achieved outside the penal system. This is not to say that the only purpose that can

be realistically pursued by the penal system is to inflict pain upon individuals. In

this regard, we believe that there is a crucial difference between a policy which is

expressed by a double negation — not to mistreat offenders — and the pursuit of

a uniquely positive goal — to treat offenders. Within a minimalist approach, the

only kind of positivity that we can reasonably hope to attain is that which is mod-

estly expressed by a double negation. In this regard, it is doubtful whether prisoners

can be trained or given an education while being incarcerated. However, all efforts

should be made to avoid that prisoners loose the skills which they had prior to their

incarceration and regress to a state of despondency.

There is one final trait implicit in Cartesian ethics, which should become an

explicit feature of Cartesian penology. Cartesian ethics are social ethics. As much

as Descartes is solipsistic in his approach to epistemology, as much he seems ready

to rely upon the customs of a community, insofar as they are moderate, in the field

of morals. Cartesian penology should be in principle open to outside influence,

whether it be exercised by the general public, pressure groups or experts. However,

this will to break out from the insularity of the penal law has to be matched by a

very critical appraisal of public opinion, vested interests and hollow expertise. No

country devotes more efforts to criminological research, nor more resources to crime

control, than the U.S. Paradoxically, no Western country is afflicted with more

— 131 —

serious problems, with regard to crime rates, which show little signs of abating, and

with regard to the criminal justice system, which is collapsing. It might be said that

this situation is only the normal result of a chain reaction, the amount of crime

impacting upon the criminal justice system and the magnitude of the problems of

crime control being reflected in the sum of criminological research. This is largely

true. However, it should also be asked why this chain reaction is only triggered in

one direction, which is leading to an increase of the problems; one could also

imagine in this regard that research would enhance the performance of the criminal

justice system and that this enhanced performance would result in a decrease of

crime. Furthermore, it seems to be assumed that the size of the problems dictates

the “size” of the answers. U.S. and Canadian penal practice are actually good

illustrations of a maximalist approach, which has produced disappointing results and

which is abandoned without being replaced by a viable alternative. It may be that

a minimalist approach, which looks for the most adequate answers and not for the

most ambitious and costly ones could provide the alternative.

REFERENCES

BENTHAM, J, “Principles of Penal Law”, in The Works of Jeremy Bentham, published by John

Browring. Edinburgh, 1843, vol. 1, 1776.

BENVENISTE, E., Le vocabulaire des institutions indo-européennes. Paris, Editions de Minuit,

vol. 2, 1969.

BLACK, D., The Behaviour of Law. New York, Academic Press, 1976.

BRODEUR, J.-P., “Legitimizing Police Deviance”, in Clifford Shearing (ed.) Organizational

Police Deviance. Toronto, Butterworths, pp. 127-160, 1981.

CANADA, Sentencing Reform, A Canadian Approach. The Report of the Canadian Sentencing

Commission, Ottawa, Minister of Supply and Services Canada, 1987.

CANADA, Taking Responsability. Report of the Standing Committee on Justice and Solicitor

General on its Review of Conditional Release and Related Aspects of Corrections (David

Daubney, Chairman). Ottawa, Queen’s Printer For Canada, 1988.

CELLE, PIERRE DE (Petrus Cellensis, 1179), L’Ecole du Cloître (De Disciplina Claustrale).

Introduction, texte critique, traduction et notes par Gérard de Martel, Paris, Editions du

Cerf, Sources Chrétiennes, 1977.

CHRISTIE, N., Limits to Pain. Oxford, Martin Robertson, 1982.

DESCARTES, René, Œuvres de Descartes, publiées par Charles Adam et Paul Tannery. Paris,

Cerf, 1897-1913, 13 volumes.

DRIVER, G.R. and Mires J.C., The Assyrians Laws. Reprint of the edition Oxford 1935 with

supplementary additions and corrections by G.R. Driver, Darmstadt, Scientia Verlag

Aalen, 1975.

DRIVER, G.R. and MiLEs J.C., The Babylonian Laws. Oxford, Clarendon Press, 2 vol., 1968.

Duarte v. The Queen and Attorney General for Ontario, Attorney General of Québec. Supreme

Court of Canada, 25 January 1990 (undigested report).

Durr, R.A., Trials and Punishment. Cambridge, Cambridge University Press, 1986.

DURKHEIM, E., Les règles de la méthode sociologique. Paris, Presses Universitaires de France,

17° édition, 1968.

FOUCAULT, M., Surveiller et Punir. Paris, Gallimard, 1975.

GERNET, L., Droit et institutions en Grèce antique. Paris, Flammarion, 1982.

— 132 —

GERNET, L., Morals and Laws in Ancient Greece. New York, Arno Press, 1979.

HULSMAN, L., Peines perdues : le système pénal en question. Paris, Le Centurion, 1982.

IGNATIEFF, M., Imprisonment and the Need for Justice. Toronto, Address to the 1987 Criminal

Justice Congress, Toronto, 1987.

JAREBORG, N., Essays in Criminal Law. Uppsala, lustus Forlag, 1988.

KANT, Immanuel, The Metaphysical Elements of Justice, Part I of the Metaphysics of Morals.

Translated by John Ladd, Indianapolis, Bobbs Merrill, 1965.

KRIPKE, S., Wittgenstein, On Rules and Private Language. Cambridge, Mass., Harvard Uni-

versity Press, 1982.

Law reform Commission of Australia, Sentencing. Report No. 44, Canberra, Australian Go-

vernment Publishing Office, 1988.

MANNING, P., The Narc’s Game. Cambridge, Mass., The MIT Press, 1980.

MARKWART, A.E. and CORRADO R., “Is the Young Offenders Act More Punitive?” in L.A.

Beaulieu (ed.), Young Offenders Dispositions. Toronto, Wall & Thompson.

MATHIESEN, T., Law, Society and Political Action. Toronto, Academic Press, 1980.

MATHIESEN, T., The Politics of Abolition. London, Martin Robertson, 1974.

PLATO, “Laws”, translated by A.E. Taylor, in E. Hamilton and H. Cairns (eds.) The Collected

Dialogues of Plato. Princeton, NJ, Princeton University Press.

QUINTON, A., “On Punishment”, Analysis. Vol. XIV, pp. 512-517, 1954.

THOoMas, D.A., Principles of Sentencing. London, Heinemann, 1979.

Tonry, M., “Stated and Latent Features of ISP”, Crime and Delinquency, vol. 36, no. 1,

pp. 174-191, 1990.

VOGUE, À. DE et NEUVILLE, J, La règle de Saint Benoît. Paris, Cerf, Sources Chrétiennes (With

Latin Text), 1972.

VON HirscH, A., Doing Justice : The Choice of Punishment. New York, Hill and Wang, 1976.

WALKER, N., Behavior and Misbehavior. New York, Basic Books, 1977.

WASSERSTROM, R., Philosophy and Social Issues. Notre Dame, Notre Dame University Press,

1980.

WEIL, S., “Human Personality”, in G.A. Panichas (ed.), The Simone Weil Reader. New York,

David McKay Company Inc., pp. 313-339, 1977.

WEIL, S., The Need for Roots. Translated by A.F. Wills, London, Routledge & Kegan Paul,

1952.

WILKINSs, L.T., Consumerist Criminology, London, Heinemann, 1984.

WITTGENSTEIN, L., The Blue and Brown Books. Oxford, Basil Blackwell, 1958.

— 133 —

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Criminal careers in correction*

Ulla V. BONDESON**

A COMPARATIVE STUDY OF CORRECTIONAL

INSTITUTIONS IN SWEDEN

This paper gives in brief a theoretical background of the prisonization theory,

an empirical study of some correctional institutions in Sweden with a cross-sectional

and a panel design, presents a follow-study of recidivism for ten years and finally

a survival analysis relating prisonization to later relapse into crime.

1. Prisonization Theory

Historically, skepticism about corrections dates back as far as the Enlighten-

ment. Most concern with the demoralizing effects of prisons can be traced back to

the penal reformers of the eighteenth century. In 1777, John Howard said that

prisons were ‘“seats and seminaries of idleness and every vice” (p. 21) and Bentham

asserted :

In a moral point of view, an ordinary prison is a school in which wickedness

is taught by surer means than can ever be employed for the inculcation of

virtue. Weariness, revenge, and want preside over these academies of crime

(1891, 351-352).

The Russian scientist Kropotkin, who, in part involuntarily, had rich opportu-

nity to study Siberian, English and French prisons from the inside, documented his

experiences in Memoirs of a Revolutionist and In Russian and French Prisons. He

wrote : “Our model and modern penitentiaries (are) a hundred times more corrupt-

ing than the dungeons of the Middle Ages”. He also described prisons as “univer-

sities of crime, maintained by the state” (1899, 468).

* Paper presented at the 10th International Congress on Criminology, Hamburg, Germany,

4-9 September 1988.

** Institute of Criminal Science, University of Copenhagen, Sankt Peders Str. 19, 1453 Co-

penhagen K, Denmark.

— 135 —

Kropotkin supported his observations with statistics related to recidivism

“Figures tell us loudly enough that the supposed double influence of prisons — the

deterring and the moralizing — exists only in the imagination of lawyers”.

He refers to the French criminal statistics, which show that almost half of all

persons convicted by the courts are released prisoners. Approvingly, he quotes

Lombroso, “If those who die after liberation and those whose recidive crimes are

not discovered be taken into account, it remains an open question whether the

number of recidivistes is not equal to that of liberated prisoners” (1887, 305-306).

Are these assertions by the Russian anarchist gross exaggerations according to

the findings of later research? We will later see, that the insights of these classics

were not that far astray.

One of the first and still most comprehensive sociological studies of a prison

was conducted by Clemmer in The Prison Community, a book published for the

first time in 1940 that did not receive appreciable attention until it was reissued in

1958.

Clemmer created the concept of prisonization to signify the prisoner’s sociali-

Zzation to the inmate role. It implies that the longer an inmate stays in prison, the

more he learns the norms and customs that characterize the prison society, which

has an antisocial culture. Despite a ten-year observation period and a huge amount

of empirical data, Clemmer developed no special instrument with which to measure

prisonization ; therefore, he could not inform us about the extent and grade of this

process, nor relate prisonization to recidivism. Despite its scientific importance and

policy implications, 1 would say that, while many sociologists have followed his

lead, none, so far, has achieved Clemmer’s ambition of fully confirming the pris-

onization hypothesis.

Instead of describing the inmates’ social system and negative impact of impris-

onment, later institution research paid more attention to the social system of the

staff and to the projected positive impact of various treatment programs. Possible

explanations for this shift in research orientation are the authorities’ need to develop

more pragmatic research approaches and the need for innovations within academia.

This state of affairs seems to have led some commentators to believe the

prisonization hypothesis is defunct. Hawkins (1976, 63) articulates three criticisms

that he says “have a cumulative impact that totally undermines the prisonization

thesis both as a description and as an explanation of the social organization of the

prison and of inmate attitudes, values, and behavior”.

Contrary to Clemmer, it is said that prisonization does not show any relation-

ship to time spent at institutions, as Wheeler (1961) found a U-shaped curve imply-

ing that prisonization ceases to operate towards the end of the term of confinement.

Hawkins’ second criticism is that the prisonization hypothesis is unsatisfactory in

that it does not take the effects of variation in the penal organizational structure into

consideration. For example, he mentions studies of juvenile institutions where mod-

ern treatment ideologies destroy the solidarity among inmates, a claim made by

— 136 —

Street and Perrow (1966). His third criticism was that the prisonization studies do

not look at the subcultural tradition outside the prison. He mentions Giallombardo’s

study (1966) demonstrating that women import the social roles they learned on the

outside into the prison.

In the following I will test the prisonization hypothesis in what is probably the

largest comparative investigation available to date (Bondeson, 1974, 1989). Prisoni-

zation will be viewed as a function of time served (both in a panel and a cross-

sectional design), and also with time remaining to serve held constant, form an

institutional perspective (comparing all categories of correctional institutions), and

in the larger cultural and social context (with different global cultures in society,

and with the various subcultures related to gender, age, education, etc.).

Sweden is an uniquely interesting test case, with its treatment and democracy-

oriented correctional system. The design of this study provides us with the oppor-

tunity to make all the necessary comparisons.

Sweden has had international fame not only for having a developed social

welfare system but also for having a progressive correctional system.

Space does not allow me here to give a full description of the different types

of institutions and their different programs.

2. A Comprehensive Interview Study

An early study of mine (1968), had indicated that even in a training school for

girls the inmates could be socialized into a criminal subculture within the institution.

Despite the therapeutic efforts of the staff the inmates became members of criminal

subcultures and the effects of this criminalization could be related to later redicivism

rates.

Sample and Methodology

AIl the inmates in /3 correctional institutions were interviewed at two time

intervals in 1970. Institutions were selected that were judged to be representative of

their type. I studied 3 out of S training schools for girls, 4 out of 12 training schools

for boys, 2 out of 12 youth prisons, the only female prison, and 2 out of roughly

fifty prisons and 1 of 9 internment institutions.

The inmates had to fill in standardized questionnaires, containing more than a

hundred questions, and in addition tape-recorded interviews were conducted with

groups of inmates and with the higher echelon staff. By careful preparations and

intensive follow-up I got a response rate of 92 % totally or 96 % of those accessible.

I received between 600 to 650 usable questionnaires at each test occasion.

According to the information of the inmates, one third had been in the same

institution for up to 3 months, one third from 3-12 months and one third for more

than ! year.

— 137 —

There is a great inherent mobility between individual prisons of the same kind

and in part even between different kinds of institutions. In fact, a correctional

career could be traced already from a study of the time served by the inmates in

different types of correctional institutions. Thus, more than half of the youth pris-

oners had earlier been to training schools, as had almost a quarter of the prisoners

and half of the internees. Almost all the internees had previously been to prison and

almost half to youth prison.

Negative Effects

Despite our small, heavily staffed institutions — with inmate-staff ratios of 1:1 —

rather well integrated inmate societies emerge. The attitudes of the inmates seem to be

less antistaff oriented than has been disclosed in the American prison. But the inmates

do prefer to interact with other inmates rather than with staff and they do have more

positive attitudes towards each other than towards the staff, although some Scandinavian

authors have claimed that the inmates even prefer the staff (Balvig er al., 1969).

Sociometric choices are clearly related to the criminal status of the inmates. À

descriptive leardership question also shows that the inmate leaders are those serving

long sentences and with great experience in crime. Here we already have some signs

of the criminal subculture emerging in the inmate society.

I used several scales to measure a criminalization process. I borrowed one

attitude scale from Glaser (1964), consisting of three subscales named criminal

ideology, criminal association preference, and criminal identification (CCC).

One interesting result is that the Swedish prisoners get higher values on these

scales than their American counterparts. I cannot say whether really American pris-

oners are less criminally oriented than the Swedish prisoners due to a differential

selection process or whether possibly they would feel less willing to give sincere

answers on these attitude questions than Swedish would. The only thing I dare say

With certainty, is that I and my interviewers were not taken to be representing any

official authority, while Glaser admits that sometimes his researchers were assumed

to be correctional staff or suspected of being FBI-men!

A second scale measuring a criminal orientation was a solidarity scale, con-

sisting of questions where solidarity with other inmates would mean breaking with

the rules of the institutions. A majority of the inmates in all institutions say that

they would help other inmates in all the described situations even at the risk of

getting caught. The contrary of conclusion reached by Mathiesen (1965) could

probably be explained by the fact that he studied a special type of correctional

institution with a more psychiatric clientele.

A third instrument used was an argot-test that in my previous studies has

shown high reliability and validity. Knowing the criminal language — also called

thieves’ language — could be seen as an indicator of membership in the criminal

subculture. Since other people would know almost nothing of this language, it

clearly separates the criminal group from control groups, but it also distinguishes

— 138 —

very well between different criminal groups. The pupils of the training schools had

about 20 right answers to 40 words, while the youth and adult prisoners would have

around 28 and the internees run up to 36.

The inmates say they use this argot often, an even greater majority say the

others use it often and moreover, a clear majority say they use it more often inside

than outside the institution. The reasons given for using this language are because

the others use it, it gives a feeling of belonging, other people should not understand,

to be tough, and because it is simple.

Multivariate Analysis

The socialization processes within the correctional institutions have been

studied closely by panel-analysis and cross-sectional analysis. In as short a time

interval of two months significant increases were found for example in the argot-

knowledge of the inmates in all types of institutions. Holding time served constant

within the panel-analysis there were even greater increments for the short timers.

The cross-sectional analysis permits us to hold different measures of time

served constant and also introducing other variables to be controlled since the cross-

sectional sample is larger than the panel. Cross-sectional analysis also indicates a

criminalization process for both men and women in all types of institutions.

Holding time left to serve constant there is no support for Wheeler’s U-shaped

prisonization curve (1961). Holding different kinds of measures of previous crimi-

nality constant, i.e. controlling for selection of inmates, criminalization processes

were found both within the high and the low criminalization groups. I also created

a special index of criminal career outside the institution and compared with the

criminal career within the institution. Criminalization appears higher inside than

outside the institution and this holds for all types of institutions.

Explanations of the inmate subculture were looked for by an elaborate multi-

variate analysis. Various kinds of personal variables were introduced to test a mod-

ified import hypothesis, different kinds of interactional variables to test a differential

association hypothesis and a set of deprivation variables to test a functional hy-

pothesis. The analysis was carried out both by ecological correlations, Coleman’s

multivariate analysis and multiple regression analysis. The general finding is that

whatever set of variables was entered, the criminalization process could be ascer-

tained. Interaction with other inmates and status in the inmate society contributes

to high criminality but, a criminalization process can be observed in groups with

both high and low interaction. Deprivation, as measured by different subjective

measures, seems to contribute inversely to criminality, but a criminalization process

can be found among the low as well as the high deprivation groups.

To summarize this part of the research, it can be stated, that my hypotheses —

that there is a prisonization process in all correctional institutions and that there are

no greater differences between different types of correctional institutions than be-

tween single institutions — have been supported.

— 139 —

The subhypotheses — that prisonization is at least as strong for the younger as

for the older inmates and for the female as compared with the male inmates — have

also been confirmed.

Hence, Hawkins’ arguments against the theory of prisonization have not been

supported at any point. The prisonization curve is not curvilinear, prisonization

exists independent of variations in the structure of the penal organization and the

subcultural tradition outside the prison does not explain the prisonization process.

3. Longitudinal Studies in Correction

In a survey of longitudinal research on crime and delinquency, Farrington (1979)

states that most studies of the effects of confinement at penal institutions are cross-

sectional (e.g. Banister et al., 1973; Bauer, 1976; Hautaluoma and Scott, 1973). The

only longitudinal survey of the effects of confinement that he had found was one by

Bolton et al. (1976) involving two measurements over a total period of nineteen months.

Few studies exist that combine data on the experiences of the inmates within

the prison with data on his conduct after release. Two examples of such studies are

Glaser (1964) and Kassebaum et al. (1971), as well as my early studies (Bondeson,

1968 and 1977). This study has a similar research design.

Petersilia (1980), who has done a survey of criminal career research, says

available data suggest that sanctions may be counterproductive and that imprison-

ment may create pressures to continue a criminal career.

Later research on “Criminal Careers and ‘Career Criminals

395

has been pre-

sented by Blumstein et al. (1986). The controversy about the value of the career

concept between Gottfredson & Hirshi (1988) and Blumstein et al. (1988) will not

be dealt with here.

4. A Follow-Up Study

Recidivism data have been collected on all the subjects of this study after a

period of five years and again after ten years. All crimes and all sanctions imposed,

have been registered with exact dates for the whole period. In addition data from

other types of registers have been collected up to ten years as well.

We will first present a brief account of recidivism for a five-year follow-up period.

According to Table 1, the recidivism rates fort one or more crimes in the

criminal register (only serious crimes are taken into account) within this follow-up

period amount to 74 percent for the total sample. There are great variations among

the types of institutions as well as among the separate institutions, holding sex

constant. The highest rates are found among the training school boys (90 percent),

youth prisoners (85 percent), and internees (85 percent) followed by male prisoners

(63 percent), where the closed prison Norrtälje has a much higher rate than the open

—>j 40 e

prison Tillberga (79 percent and 42 percent respectively). Women have rates about

25 percent lower than men, with the training school girls scoring higher than the

prisoners (59 percent and 52 percent respectively).

Table 1 : Recidivism in criminal registry during a five-year follow-up,

specified as to place of relapse for the various correctional institutions

(percentages) (see below for column headings).

Institution

N

Training schools/G:

Brättegärden

17

41

29

29

24

59

Hornô

20

55

30

30

45

Ryagärden

42

29

14

52

29

67

Total

79

38

22

œ VN"UunO

42

22

59

Training schools/B:

Stigby

20

B5

15

85

90

Forsane

72

58

13

82

46

94

Fagared

49

14

3

14

71

31

84

Räby

33

48

12

76

36

88

Total

174

50

13

78

35

90

Youth prisons:

Skenäs

65

12

15

14

72

15

78

Mariefred

66

33

32

77

18

91

Total

131

24

23

75

17

85

Women’s prison

84

38

43

24

52

Hinseberg

Total

84

38

43

24

52

Men’s prisons:

117

43

27

23

42

Tillberga

Norrtälje

160

14

14

19

66

29

79

Total

277

26

12

50

27

63

Internment:

Hall

196

12

33

29

70

85

Total

196

12

33

29

70

85

AIl institutions

941

19

24

16

62

21

74

No recidivism

Recidivism during the time of present institutionalization

Recidivism during the time of later institutionalization

Recidivism when treated outside institution or during parole

Recidivism other periods

O YU R VN —

Sum of 2. - 5.

- J'Agie

It is interesting to note the extent to which recidivism takes place within “‘treat-

ment at institution” (40 percent), for example on escapes or furloughs, and during

“treatment outside the institution” or parole (62 percent). The number of recidivism

cases increased sharply during the early follow-up period, particularly up until the

first eighteen months. Within a follow-up period of four years, the recidivism rate

amounts to 70 percent totally.

The average number of relapses into serious crimes, counting each conviction

for a new offence, is 2.44 for the entire group. Counting only those who do recid-

ivate, the average number is three relapses during the five-year follow-up. There

were exactly the same recidivism rates for internees, even higher rates for youth

prisoners, but lower ones for male prisoners.

“ If less serious crimes are included in the definition of recidivism, the relapse

into crimes amounts to 81 percent for the total sample within five years. With this

wider definition, the figures amount to 94 percent for the training school boys and

92 percent for youth prisoners. Stigby runs to 100 percent, Räby to 97 percent,

Forsane to 96 percent, and Mariefred to 95 percent. These figures actually give

support to the observations previously cited by Kropotkin.

The following analysis concentrates on the fen-year follow-up, and recidivism

data are related to previous data on prisonization, controlling for some important

background variables.

5. Statistical Survival Analysis

The statistical analysis of recidivism will here be restricted to inmates of cor-

rectional institutions, i.e. excluding the training schools (1). About 650 persons

were followed from the interview in 1970 to 1981. Some had to be eliminated for

mortality reasons and others due to emigration or expulsion. However, no signifi-

cant differences have been found on the prisonization variables between included

and excluded persons.

Table 2 shows the number of recidivism cases per person for each of the six

correctional institutions, Table 3 shows the number of recidivism cases per calendar

year, and Table 4 shows the estimated medians and quartiles in the recidivism time

distributions at the six institutions.

Figure 1 shows the Kaplan-Meier estimates for the two youth prisons, Skenäs

and Mariefred, and Figure 2 shows the estimates for the other four correctional

institutions, Hinseberg, Tillberga, Norrtälje and Hall. It is seen that the survival

probabilities are higher at Skenäs than at Mariefred in agreement with the average

number of recidivism cases per person seen in Table 2. Also the curves in Figure

2 follow the order of the averages in Table 2.

(1) The statistical survival analysis was carried out in collaboration with Per Kragh Andersen.

qs

Table 2 : Number of recidivism cases per person during a ten-year follow-up

from interview in 1970 to 1981.

Institution

1

3

10

11

Hinseberg

29

14

11

Skenäs

12

10

Mariefred

Tillberga

54

19

12

29

22

11

14

Norrtälje

Hall

27

22

16

10

H OSUS LUO

;Ë

ë

î

îlî

wœo-—Uunco»

î

%ou— R —C

NL0OOULCO

Institution

12

13

14

15

Mean

Recid. percent

Hinseberg

2.16

64

Skenäs

4.52

85

Mariefred

6.91

94

Tillberga

1.69

50

Norrtälje

4.70

82

Ë

5.07

85

Hall

Ë

(2Ê)

Ë

Table 3

: Number of recidivism cases per calendar year.

Institution

70

71

72

73

74

75

76

77

78

79

80

81

Hinseberg

10

24

24

18

20

14

11

11

15

19

Skenäs

22

38

32

25

31

26

31

32

14

14

Mariefred

16

35

50

42

52

44

37

55

42

38

27

17

24

24

14

19

15

15

20

14

10

Tillberga

Norrtälje

43

113

94

72

70

73

61

59

53

38

Hall

43

116

111

85

95

100

85

92

96

>

51

NLUNS4S O—

Table 4 : Estimated medians and quartiles of recidivism time

(number of days).

Institution

Median

Lower quartile

Upper quartile

Hinseberg

981

164

2870

Skenäs

476

186

1172

Mariefred

163

79

793

2072

340

2724

Tillberga

Norrtälje

198

54

762

Hall

166

50

712

…s T4x

zo_

40

So-

_ SKENAS

\*

PCT. RECIDIVISM

so-

MARIE FRED

100 +—

T

T

T

T

0

200

12Ë)0

20€)0

2&00

3600

DAYS

Figure 1 : Kaplan-Meyer estimates for the recidivism time distribution

in the two youth prisons, Skenäs and Mariefred.

zo

40

TILLBERGA

É

so

HINSEBERG

NORRTALJE

s0—

PCT. RECIDIVISM

/

E E V

12100

HALL

T

T

T

T

0

L(IJO

1200

2060

2800

3600

DAYS

Figure 2 : Kaplan-Meyer estimates for the recidivism time distribution

in the four adult's prisons, Hinseberg, Tillberga, Norrtälje and Hall.

e s104e

Comparing the tables it is seen that even though the recidivism percentage at

Skenäs is of equal order of magnitude to those at Norrtälje and Hall, the median

recidivism time (number of days) is much higher at Skenäs. For Hall and Mariefred,

the median recidivism times are much almost identical in spite of the fact that the

recidivism percentage is higher at Mariefred. For Hinseberg, it is worth noticing

that 25 % of the women had recidivated before 164 days and at Skenäs the lower

quartile is 186 days, but the median recidivism time at Skenäs is much shorter than

at Hinseberg.

Bivariate Analysis

We will examine to what extent the significant differences in recidivism can

be explained by the distribution of covariates. The effect of several covariates on

the recidivism time distribution within each institution was examined using the

logrank test. A summary of the results of these single factor analyses within insti-

tution is shown in Table 5.

Table 5 : Summary of single factor analyses of recidivism rates for the separate

institution (p-values or NS p > 0.05).

Covariate

Hinseberg Skenäs Mariefred _ Tillberga

Norrtälje

Hall

Birthplace

Ns

Ns

Ns

Ns

0.5 %

Ns

Age

Ns

Ns

Ns

Ns

Ns

Ns

Crime

3.0 %

Ns

Ns

0.6 %

Ns

Ns

Solidarity

Ns

Ns

Ns

Ns

Ns

Ns

CCC

Ns

Ns

Ns

2.0 %

Ns

0.3 %

Argot

Ns

Ns

Ns

Ns

0.7 %

Ns

Sent/y

2.0 %

Ns

Ns

Ns

0.2 %

0.07 %

Recinst

0.02 %

Ns

Ns

NS

Ns

Ns

The covariates age and solidarity thus had no effect within the institutions. The

prisonization variable CCC did not show a uniformly clear picture from institution

to institution. The effect of the last prisonization variable argot knowledge was more

clear. At every institution the recidivism increased with argot, however, only sig-

nificantly at Norrtälje.

Furthermore, the effect of prior criminal record in the form of sentences per

year was quite uniform in that the recidivism intensity was highest in the groups

with highest sent/y-values

(

sent/y > number of sentences

)

age — 16 years

Concerning type of crime persons who committed theft and other property

crimes and to some extent drug addicts had the highest recidivism intensity. Recid-

ivism at institutions finally was significant at Hinseberg, where the small group of

sms —

women who recidivated between interview and release had a higher recidivism

intensity

(

recinst _ _number of recidivism cases

“ time from interview to release

Multivariate Analysis

Next, using multivariate analysis, we shall see to which extent the trends found

in the single factor analyses are sustained or whether the effect of some variables

can be explained by their possible association with other variables. We will be using

the Cox regression model for censured survival data.

A backward elimination procedure was applied. The only covariates that ap-

peared in the final models were argot, type of crime (theft or not), sent/y and recinst.

The final models at the six insitutions are summarized in Table 6.

Table 6.

Institution

Argot

Theft

Sent/y

Recinst

0

Hinseberg

0

1.68

Skenäs

0

0

Mariefred

0

0

!

Tillberga

0.045

0.90

0

Norrtälje

0.051

0.36

0.58

Hall

0

1.21

oeo

Space does not permit me to go into detail of the statistics. But from Table 7,

8 and 9 it can be seen that the prisonization variable argot is consistently coming

out with the strongest effect. The other prisonization variables have been eliminated

and only theft and sentences per year remain in the final model.

Figure 3 shows the estimated “underlying” survival curve for a person with all

covariates equal to O. There is a clear trend towards highest intensity at Norrtälje,

then Hall, Hinseberg and lowest intensity at Tillberga.

The variables, type of crime, sent/y, and argot cannot, however, “explain” the

entire differences among the four institutions. It is possible that the variables which

were not taken into account in the final model (age, solidarity, and CCC) could

explain some of the difference even though they were insignificant within the insti-

tutions.

Summary Results of the Survival Analysis

We have thus found that for the four institutions argot knowledge, type of

crime, and sentences per year had a significant effect on the recidivism intensity,

effects that could be considered identical at the four institutions.

= q

TILLBERGA

zo—

HINSEBERG

ao—

HALL

NORRTALJE

So-

80

PCT. RECIDIVISM

12100

T

0

100

12‘00

20]00

28100

3 810 0

DAYS

Figure 3 : Estimated survival time distribution from the Cox regression

model for in the four adult's prisons with Argot less than 20, no prior

sentences and not having committed theft.

Table 7 : Same model fit at four institutions.

Institution

Argot

Theft

Sent/y

Recinst

Hinseberg

0.026

0.49

0.26

1.42

Tillberga

0.053

0.97

-0.74

=

0.052

0.36

0.58

-0.04

Norrtälje

Hall

0.008

0.05

1.21

-0.08

Table & : Estimated common regression coefficients.

Variable

Estimated

standard error

eB

Theft

0.3356

0.1126

1.3988

0.6686

0.2089

1.9514

Sent/y

Argot

0.0373

0.0108

1.0380

Recinst

-0.0315

0.1371

0.9690

se

Table 9 : Estimates in final model.

A

Estimated

Variable

B

standard error

ep

Theft

0.3351

0.1126

1.3981

Sent/y

0.6624

0.2076

1.9394

Argot

0.0370

0.0107

1.0377

There was a significant prisonization effect : for given type of crime committed

(theft or not) and for given prior criminal record, the intensity increased by a factor

of e0,037 = 1.038 per argot score above 20, a 95 percent confidence interval for

the true factor being 1.02, 1.06.

A considerable part of the variation among prisons in recidivism time could be

explained by the three covariates, argot knowledge, sentences per year, and type of

crime in that the chi-square test statistic with three degrees of freedom for the

comparison of the recidivism time in the four prisons was reduced from 64.39

before correction for the covariates to 13.48 after correction. Even after correction,

however, the difference was significant. Of the three covariates, argot knowledge

was the most significant in the final regression model (p = 0.0005), then came sent/y

(p = 0.001) and finally type of crime (p = 0.003).

There is thus a relationship between prisonization and recidivism when con-

trolling for some crucial factors.

6. Conclusion

Both the cross-sectional and the panel analyses demonstrated a prisonization

process in all types of correctional institutions for both male and female inmates in

Sweden. The longitudinal study indicates that this prisonization process has a long

arm and affects later recidivism.

The principal goal of the Swedish correctional institutions is officially rehabil-

itation. It seems though that the crimini-political theory of individual prevention

needs to be revised since the result can rather be described as a negative individual

preventive effect.

When criminal careers can be observed in the Swedish progressive correctional

system one may presume that prisonization is more of a universal than a specific

social phenomenon.

e m4s

REFERENCES

BALVIG, Flemming et al., Faengsler og fanger. Viborg, Paludan, 1969.

BANISTER, Peter À. et al., “Psychological Correlates of Long-Term Imprisonment”. The British

Journal of Criminology, 13, 312-330, 1973.

BAUER, G.E., “Personality Deviancy and Prison Incarceration”. Journal of Clinical Psycholo-

gy, 32, 279-283, 1976.

BENTHAM, Jeremy, Theory of Legislation. London, Trübner, 1891.

BLUMSTEIN, Alfred et al, Criminal Careers and “Career Criminals”, vol. 1, Washington,

D.C., National Academy Press, 1986.

BLUMSTEIN, A., COHEN, J. and FARRINGTON, D., “Criminal Career Research : Its Value for

Criminology”. Criminology, 26:1, 1-35, 1988.

BLUMSTEIN, À., COHEN, J. and FARRINGTON, D., “Longitudinal and Criminal Career Research :

Further Clarifications”. Criminology, 26:1, 57-74, 1988.

BOLTON, Neil et al., “Psychological Correlates of Long-Term Imprisonment”. The British

Journal of Criminology, 16, 38-47, 1976.

BONDESON, Ulla V., “Argot Knowledge as an Indicator of Criminal Socialization - À Study

of a Training School for Girls”. Scandinavian Studies in Criminology, 2, 73-107, 1968.

BONDESON, Ulla V., Fängen i fângsamhället, Stockholm, Norstedt, 1974.

BONDESON, Ulla V., Kriminalvärd i frihet - intention och verklighet. Stockholm, Liber. (Rus-

sian translation 1979 : Nadzor. Moscow : Juriditjeskaja), 1977.

BONDESON, Ulla V., Prisoners in Prison Societies. New Brunswick, N.J., Transaction Books, 1989.

CLEMMER, Donald, The Prison Community. (Reissued 1958. New York, Holt, Rinehart &

Winston), 1940.

FARRINGTON, David P., “Longitudinal Research on Crime and Delinquency”. In Crime and

Justice, eds. Morris and Tonry, Chicago, University of Chicago Press, 1, 289-348, 1979.

GIALLOMBARDO, Rose, Society of Women. A Study of a Women’ s Prison. New York, Wiley, 1966.

GLASER, Daniel, The Effectiveness of a Prison and Parole System. New York, Bobbs-Merrill.

(Abridged edition, 1969), 1964.

GOTTFREDSON, Michael and HrrscHI, T., “Science, Public Policy and the Career Paradigm”.

Criminology, 26:1, 37-55, 1988.

HAUTALUOMA, J.E. and ScoTT, W.A., “Values and Sociometric Choices of Incarcerated Juve-

niles”. Journal of Social Psychology, 91, 229-237, 1973.

HAWKINS, Gordon, The Prison. Policy and Practice. Chicago, The University of Chicago

Press, 1976.

HowARD, John, The State of the Prisons in England and Wales, with Preliminary Observations

and an Account of Some Foreign Prisons. Warrington (New edition 1977, Abingdon :

Professional Books), 1777.

KASSEBAUM, G., WARD, D. and WILNER, D., Prison Treatment and Parole Survival. An Em-

pirical Assessment. New York, Wiley, 1971.

KROPOTKIN, Petr. A., In Russian and French Prisons. London, Ward & Downey, 1887.

KROPOTKIN, Petr. A., Memoirs of a Revolutionist. Boston, Houghton Mifflin, 1899.

LOMBROSO, Cesare, L'Uomo delinquente. (French translation 1887 : L’homme criminel. Paris,

Alcan), 1878.

MATHIESEN, Thomas, The Defences of the Weak. London, Tavistock, 1965.

PETERSILIA, Joan, “Criminal Career Research. A Review of Recent Evidence”. In Crime and

Justice, eds. Morris and Tonry, 2, 321-380. Chicago, University of Chicago Press, 1980.

STREET, D., VINTER, R. and PERROW, C., Organization for Treatment. New York, The Free

Press, 1966.

WHEELER, Stanton, “Socialization in Correctional Communities”. American Sociological Re-

view, 26, 697-712, 1961.

—0

SUMMARY

Prisonization is related to recidivism in this longitudinal study of inmates in

Swedish correctional institutions. About one thousand inmates of both sexes, rep-

resenting all types of correctional institutions such as training schools, youth pris-

ons, prisons and internment center, have been interviewed at two occasions and

followed up during a ten-year period.

Prisonization as defined by Clemmer was assessed using both a panel and a

cross-sectional design. The curve is not U-shaped as reported by Wheeler and re-

mains when controlling for previous criminality and other relevant background

factors. Prisonization was found in all types of institutions.

Recidivism rates for the total sample amounts to 74 % counting only relapse

into serious crimes and to 81 % including also less serious crimes for a five-year

follow-up period.

Survival analysis is applied to the adult population using a ten-year follow-up

period. Time elapsed from release until first commitment of a new crime is analyzed

using techniques for life time data with possible censored upper limits. A Cox

regression analysis shows for fixed institution, type of crime and prior sentences

that recidive intensity increases with level of prisonization, as measured by argot

Kknowledge (for further details see Prisoners in Prison Societies, Transaction, New

Brunswick, N.J., 1989).

— 150 —

Human rights in the enforcement of

sanctions involving deprivation of

liberty*

by Günther Kaiser, Freiburg/Germany

1. As is generally known, human rights are those fundamental rights every

human being as such is entitled to irrespective of its affiliation to a certain state or

particular group. I am thinking of the protection of human dignity, the right to live,

freedom from injury, the general right to privacy, equal protection, religious free-

dom, the freedom of information, the protection of marriage and family, the right

to due process of law, the right to petition and the guarantee of legal protection

(access to law). Respect for human rights applies to all regardless of race, sex,

language and religion.

In contrast to this, civil rights are those rights to which only the members of a

particular state are entiled, or, in other words, for which the status as citizen is

constitutive (1).

2. The human rights, their significance and guarantee within the system of

penal social control have been on the agenda of the international discussion for a

long time. The main emphasis of this discussion, however, is still on substantive

criminal law and particularly on the law of criminal procedure (2), while the exami-

* Text of the lecture held at the XLIInd International Course in Criminology at Miskolc,

Hungary, 24 August, 1990.

BVerfGE = Decision of the Federal Constitutional Court (BGE for Switzerland)

EuGRZ = European Journal of Basic Rights

OLG = District Court

LG = Provincial Court

(1) Hollerbach, A. : Index article “Menschenrechte”. In : Gôrres-Gesellschaft (Ed.) : Staats-

lexikon. Freiburg 1987’, pp. 1104 et seqq.

(2) To this item see the ref. in Trechsel, St. : Die Bedeutung der Europaïschen Menschenre-

chtskonvention im Strafrecht. Zeitschrift für die gesamte Strafrechtswissenschaft 101 (1989),

pp. 819-837 (819 w. ref.); furtheron, in van Dijk, P. and G. van Hoof : Theory and Practice

of the European Convention of Human Rights. Deventer, Boston 1990, pp. 226-241. Even the

Innsbrucker Meeting on Comparative Law 1987 had only taken into account problems of

human rights from a penal and procedural perspective; symptomatic'for excluding the area of

corrections from the discussion of human rights Baratta, A. : Prinzipien des minimalen Straf-

rechts. Eine Theorie der Menschenrechte als Schutzobjekte und Grenze des Strafrechts. In :

— 151 —

nation of human rights and their relevance fo the execution of liberty-depriving

penal sanctions is often neglected. This applies also to the current endeavors to

privatize penal institutions. The convicted prisoners, however, or those institution-

alized for penal reasons are also entitled to the human rights applicable to all.

Although liberty-depriving measures such as the penal commitment to a mental

hospital for drug addicts have special features, they raise similar questions together

with the execution of the prison sentence. This justifies a generally uniform per-

spective of this field of problems.

Ambulatory, liberty-restricting sanctions or noninstitutional measures — e.g.,

intensive probation supervision, community service or, of late, electronic monitor-

ing by house arrest — are also subject to inspection from the standpoint of human

rights, albeit in a reduced form; this domain, however, has to remain excluded in

this paper for thematical reasons (3).

I. DEVELOPMENT OF INTERNATIONAL

REGULATIONS AND STATUTORY FOUNDATIONS

3. A number of contemporary international initiatives are carried by the en-

deavor to create and secure a humane execution of penal sanctions depriving lib-

erty (4). The most outstanding initiatives deserving mentioning are, i.a…, the U.N.

Convention for the Prevention of Torture of Dec. 10, 1984 and the European Con-

vention for the Prevention of Torture or Inhumane and Degrading Treatment or

Punishment of Nov. 26, 1987 (5). The European Convention on Torture is subject

G. Kaiser, H. Kury, H.-J. Albrecht (Eds) : Kriminologische Forschung in den 80er Jahren.

Projektberichte aus der Bundesrepublik Deutschland. Freiburg 1988, pp. 513-542 (517); be-

sides that, see the overview on European constituve principles in the framework of the Euro-

pean Convention on Human Rights in Frowein, J.A. : Die Herausbildung europäischer

Verfassungsprinzipien. In

Festschrift für W. Maihofer zum 70. Geburtstag. Frankfurt/M.

1988, pp. 149-158 (152 et seqq.); Delmas-Marty, M. : Justice pénale et droits de l’homme.

Le Courrier du C.N.R.S. Dossiers Scientifiques n° 75, April 1990, pp. 70 et seq.

(3) C. International Penal and Penitentiary Foundation : Standard Minimum Rules for the

Implementation of Non-custodial Sanctions and Measures Involving Restriction of Liberty.

Groningen Meeting 8-12 October 1988. Bonn 1989; id. : The Elaboration of Standard Mini-

mum Rules for Non-institutional Treatment. Proceedings of the 6th International Colloquium

of the I.P.P.F., Poitiers/France, 3-6 October 1987. Bonn 1989; furthermore Kaiser, G. : Zweck-

strafrecht und Menschenrechte. Schweizerische Juristenzeitung 80 (1984), pp. 329-342 (338);

to electronic monitoring see Schmidt, A.K. : Electronic monitoring of offenders increases.

National Institute of Justice Reports No. 212/1989, pp. 2-5; Weigend, Th. : Privatgefängnisse,

Hausarrest und andere Neuheiten. Bewährungshilfe 36 (1989), pp. 289-301 (299 et seqq. w.

ref.).

(4) See the reports in EuGRZ 16 (1989), pp. 45 et seqq.; 16 (1989), pp. 469 et seqq.

(5) The text of the U.N. Convention for the Prevention of Torture is publ. in EuGRZ 12

(1985), p. 131, cf. to this recently Voyame, J. : Das UNO-Übereinkommen gegen Folter und

andere grausame, unmenschliche oder erniedrigende Behandlung oder Strafe. In : Matscher,

— 152 —

to ratification by the 24 signatory states of the Council of Europe, which, however,

has been realized only partially so far. Moreover, the Declaration of the European

Parliament on Basic Rights and Fundamental Freedoms of Apr. 12, 1989 is of

importance as a possible basis for a joint European constitution (6).

4. Particularly the Furopean Prison Rules of 1987 contain detailed regulations

governing the execution of liberty-depriving sanctions. As is well-known, they have

their origin in a recommendation of the U.N. Economic and Social Council of 1955.

On Jan. 19, 1973, the Ministerial Committee of the European Council adopted the

minimum rules as the European Minimum Standard Rules for the Treatment of

Prisoners (7) which have been revised only recently to form the European Prison

Rules (8). These regulations are considered an expression of the international con-

sciousness of law; though they are no rules of law by nature, they constitute an

internationally recognized standard (9). Their neglect can indicate the violation of

Art. 3 of the European Convention on Human Rights.

5. Furthermore, outside Europe, in Africa, Latin-America and the Middle East

regional human rights systems and unions have developed further. This finds its

organizational expression in, e.g., the African Charta on Human Rights, the Asian

Commission for Human Rights as well as the Inter-American Court of Justice for

Human Rights of the OAS, the initiatives deserving mentioning in this connec-

tion (10).

F. (Ed.) : The Prohibition of Torture and Freedom of Religion and Conscience. Comparative

Aspects. Kehl A.R., 1990, pp. 109-117. The European Convention for the Prevention of Tor-

ture is printed in EuGRZ 16 (1989), pp. 502 et seqq. Besides that, a draft of the “Minimum

Rules for the protection of juveniles deprived of their liberty” is under consideration; to this

topic Kaiser, G. : Die Entwicklung von Mindestgrundsätzen der Vereinten Nationen zur Prä-

vention von Jugendkriminalität und zum Schutz inhaftierter Jugendlicher. Recht der Jugend

und des Bildungswesens 37 (1989), pp. 44-58.

(6) Printed in EuGRZ 16 (1989), pp. 205 et seqq.

(7) Cf. Schmidt, J. : Überbelegung im Strafvollzug. Frankfurt/M. 1987, p. 57.

(8) Council of Europe : European Prison Rules. Strasbourg 1987; printed also in Prison In-

formation Bulletin, June 1987, 5, as well as in Treverton-Jones, G.D. : Imprisonment : The

Legal Status and Rights of Prisoners. London 1989, Appendix 2.

(9) Council of Europe (fn. 8), p. 29; Bolle, P.H. : Über verfassungs- und allgemeinrechtliche

Bestimmungen des Freiheitsentzuges in der Schweiz. Requiem für die verblichenen Mindest-

grundsätze. In : Der Strafvollzug in der Schweiz 1988, 2/3, pp. 42-59 (43-46); Tulkens, H.H. :

The Concept of Treatment in the European Prison Rules. Prison Information Bulletin, June

1988, pp. 8 et seqq, ; critical Doleisch, W. : Kritische Gedanken zu den Neuen Europäischen

Gefängnisregeln (European Prison Rules). Zeitschrift für Strafvollzug 38 (1989), pp. 35-37.

(10) Cf. decision of the European Parliament concerning human rights in the world and a

central policy in the area of human rights in the years 1987-1988 of 18 January 1989 publ. in

EuGRZ 16 (1989), pp. 45-52 (45, 48, 50); to the worldwide situation of human rights see

Department of State, Country Reports on Human Rights for 1988. Washington/D.C. 1989;

critical of this report Eisenberg, U., Ohder, C. in Kriminologisches Journal 22 (1990), pp. 64-

67, and Amnesty international : Annual Report 1989. Frankfurt/M. 1989.

— 153 —

6. These conventions pick up the thread of the U.N. Declaration of Human

Rights of 1948 (11), and in part also of the European Convention for the Protection

of Human Rights of Nov. 4, 1950 (12), of which the regulation in Art. 3, of central

relevance in this connection, guarantees the protection of imprisoned persons

against torture and inhumane or degrading punishment or treatment (13).

7. With regard to their content, the more recent resolutions are characterized

by the fact that they contain more organizational and procedural safeguards to

prevent and control violations of human rights in penal institutions. In its explana-

tory report on the so-called Convention for the Prevention of Torture, the European

Council states that, though torture and cruel, inhumane or degrading treatment or

punishment are prohibited by national laws as well as by a number of international

agreements, past experience has shown that there is a need for broader and more

effective international control measures. It states, moreover, that to strengthen in

particular the protection of persons deprived of their liberty, it would therefore seem

sensible to supplement the control system established by the European Convention

for the Protection of Human Rights of Nov. 4, 1950 which is based on complaints

lodged by individuals or states maintaining that human rights have been violated.

The supplement proposed is a procedure of a preventive character whose task it is

to inspect the treatment of imprisoned persons. For this reason, the convention has

set up a commission which is entitled to inspect every place under the sovereignty

of a state where persons are being deprived of their liberty by a public agency (14).

This is not least to be judged in the light of the exceptionally long length of

proceedings before the European Commission for Human Rights and the European

Court of Justice for Human Rights and in the light of the rather small chances of

success (15). In addition, there also endeavors to reform these institutions in order

to secure an improvement of their effectiveness (16).

8. Beyond the circle of states united in the Council of Europe, the Final Docu-

ment of the C.S.C.E. Follow-Up Meeting in Vienna of Jan. 15, 1989 (17) contains

(11) In detail Stern, K. : Das Staatsrecht der Bundesrepublik Deutschland, Vol. III/1. Mün-

chen 1988, Sec. 62, pp. 253 et seqq., publ. in U. Loest : Von der Würde des Menschen, Texte

und Kommentare zur Entwicklung der Menschenrechte, Bonn 1989, pp. 138 et seqq.

(12) Cf. Frowein, J.A., Peukert, W. : EMRK-Kommentar. Kehl a.Rh. 1985, pp. 1 et seqq.

(13) To the discussion of human rights before World War II and to the decision-making practice

of the European Commission on Human Rights cf. Kaiser (fn. 3), pp. 333 et seqq. w. ref.

(14) Explanatory report to the decision-making practice in the light of the European Conven-

tion for the Prevention of Torture in EuGRZ 16 (1989), pp. 504-51 1.

(15) Kaiser, G. : Strafvollzug im internationalen Vergleich. In : H.J. Hirsch et al. (Eds) :

Gedächtnisschrift für H. Kaufmann. Berlin et al., 1986, pp. 599-621 (602); id. (fn. 3), pp. 334

et seqq.

(16) Cf. index of the European Parliament in EUGRZ 16 (1989), p. 50.

(17) Publ. in EuGRZ 16 (1989), pp. 85-99. To the importance of the C.S.C.E. development

improving the protection of human rights in general see Reimann, H.B. : Der Beitrag des

KSZE-Prozesses zum besseren Schutze der Menschenrechte. In

Volume in honour of

H. Haug. Bern, Stuttgart 1986, pp. 217-224.

3 isds

obligations of the participating states to adhere to a humane treatment of prisoners.

In this document, the participating states oblige themselves to guarantee that each

person who is arrested or being detained in custody is treated in a humane manner

and in respect of the dignity also inherent in an imprisoned person, that the U.N.

Minimum Rules for the Treatment of Prisoners (18) as well as the U.N. Code of

Conduct for Prison Officers shall be complied with, that they shall prohibit torture

and other kinds of cruel, inhumane or degrading treatment or punishment and take

effective legal, administrative, judicial or other measures to prevent and punish such

practices. Moreover, the participating states guarantee that they shall consider join-

ing the Convention Against Torture and Other Cruel, Inhumane or Degrading Forms

of Punishment if they haven’t done so yet. They also guarantee that they shall

protect the individual against all psychiatric or other medical practices which violate

human dignity or basic rights and that they shall take effective measures to prevent

and punish such practices (19).

IL. CONCRETIZATION OF INTERNATIONAL

PRINCIPLES AND OBLIGATIONS IN NATIONAL

LEGISLATION

9. In order to gain relevance, international regulations need to be translated

into national laws. Throughout Europe, the system of human rights is concretized

by national legislation and other legal provisions. Although it is a generally recog-

nized fact that the convicted prisoner is also entitled to the human rights applicable

to all, the extent and form of their restrictability was a much disputed issue for a

long time. According to West European and North-American constitutional tradi-

tion, human and civil rights may only be restricted by or on the basis of a formal

law. In its Art. 26, the Declaration of Human Rights of the European Parliament of

Apr. 12, 1989 also follows this tradition (20).

10. In contrast to this, the rights of prisoners were, until quite recently, able to

be restricted by mere administrative decision. While in the United States the

socalled hands-off-doctrine was in favour, in West Germany the reason given for

this was the “special relationship of power” the prisoners were subject to and which

was supposed to constitute an adequate basis for encroachments on basic

(18) Cf. the U.N. Resolution “Body of Principles for the Protection of AIl Persons Under Any

Form of Detention of Imprisonment” of 9 December 1988, publ. in International Commission

of Jurists : The Review No. 42/1989, pp. 82-89.

(19) Vienna closing document in EuGRZ 16 (1989), p. 89. However, the Vienna closing

document has only programmatic character; it is regarded as “international soft-law” and

expresses the practice of nations in special fields; see Tretter, H. : Die Menschenrechte im

abschlieBenden Dokument des Wiener KSZE-Folgetreffens vom 15 Januar 1989. EuGRZ 16

(1989), pp. 79, 80.

(20) Publ. in EuGRZ 16 (1989), pp. 204-207.

— 155 —

rights (21). In the 70s however, since the decision of the Federal Constitutional

Court (22), the opinion already supported before in the relevant literature (23), ie.,

that the basic rights of prisoners may only be restricted by or on the basis of a

formal law has become generally accepted. Consequently, restrictions are no longer

possible on the basis of administrative prison regulations.

11. In numerous European states there are laws which juridify the execution

of prison sentences and penal measures and regulate the legal status of the pris-

oner (24). In general, these legal provisions are not restricted to the standardization

of negative prohibitions of violations of the dignity of prisoners ; rather, they regu-

late the prisoner’s status, rights and duties to tolerate beyond that in a positive

manner. They therefore concretize what corresponds to the current comprehension

of human dignity and a humane execution of liberty-depriving sanctions (25).

Moreover, there is a call for interpreting and implementing the national regula-

tions (26) in respect of the international conventions — i.e., in agreement with the

human rights — irrespective of the intrastate validity of these conventions (27) and

that this should apply irrespective of the legal-systematic order of regulations,

which, as is generally known, vary from state to state.

12. It is true that many countries have set forth special prison laws (German

Democratic Republic, Italy, the Netherlands, Austria, Spain, Hungary and West

Germany), but in others (France, Scandinavia as well as in the Eastern European

countries) solutions still prevail which are based on the law of criminal procedure

or the law relating to the execution of punishment still prevail. Moreover, regula-

tions relating to the execution of prison are also contained in substantive criminal

law (Switzerland) or even in the constitution (Spain) (28). However, the laws and

the single regulations set forth by the authorities in the course of their implementa-

tion have to comply with humanitarian basic principles without exception. Further-

(21) Instead of all Hesse, K. : Grundzüge des Verfassungsrechts der Bundesrepublik Deutsch-

land. Heidelberg 1988/6, side notes no. 321 et seqq.; Morlok, M. : Strafvollzug und Grundre-

chte. In

G. Bemmann, A. Manoledakis (Eds) : Probleme des staatlichen Strafens unter

besonderer Berücksichtigung des Strafvollzugs. Deutsch-Griechisches Symposion Komotini

1989. Baden-Baden 1989, pp. 45-56 (45 et seqq.); Niebler, E. : Die Rechtsprechung des

Bundesverfassungsgerichts zum Strafvollzug. In : Festschrift für W. Zeidler, vol. 2, Berlin et

al., 1987, pp. 1567-1588 (1570).

(22) BVerfGE 33, p. 1.

(23) Calliess, R.-P., Müller-Dietz, H. : Strafvollzugsgesetz. München 1979?, p. 9 w. ref.

(24) Kaiser (fn. 15), pp. 599 et seq., 602 et seq.; more recently see also Dünkel, F., van Zyl

Smit, D. (Eds) : Strafvollzug heute und morgen — Perspektiven der Verbesserung von Le-

bensbedingungen und Rechten der Gefangenen. Freiburg 1990 (unpubl. hitherto).

(25) To the “humanization” cf. Bôhm, A. : Die Entwicklung des Strafvollzugs und des Sank-

tionssystems von 1945 bis in die Gegenwart. In : M. Busch, E. Krämer (Eds) : Strafvollzug

und Schuld-problematik. Pfaffenweiler 1988, pp. 39-50 (45).

(26) To this item see fn. 24.

(27) Feest, J. in alternativ-Kommentar zum St Vollz G. Neuwied et al., 1982° vor Sec. 1, p. 2.

(28) Kaiser (fn. 15), p. 602.

— 156 —

more, concerning Eastern Europe, improvements in the execution of sentences

coupled with the guarantee of human rights are expected in the course of the further

political development (29).

13. This interlinking of guarantees of human rights, constitution, legislation

and single acts can best be illustrated by the example of West Germany where the

Prison Law of March 16, 1976 was created in consequence of the realization that

the constitutional rights of prisoners may only be restricted on a statutory basis (30).

Meanwhile, this statute has repeatedly been subject to and borne judicial review by

the West German Constitutional Court (31). Neither the fact that measures imposed

by the prison administration in accordance with prison law had to be quashed

repeatedly by the competent courts, nor the fact that substantial improvements in

the status of prisoners are lacking in the prison reality contrast with this (32).

14. With regard to life in prison, the formation of a preventive on-the-spot

commission as planned by the European Convention on Torture is an important step

to supplement the international protection of human rights by the bodies established

by the European Convention for the Protection of Human Rights. The commission

has already started work.

IIIL. CONCRETIZATION AND CONTROL THROUGH

COURT RULINGS

15. We are able to receive information about the sore spots which occur reg-

ularly in everyday prison life not least by looking at court rulings relating to prison

matters. The legal proceedings instituted by prisoners clearly show the prisoners°

main concerns. It therefore stands to reason that especially appeal proceedings and

judicial decisions show whether and to what extent the human rights are enforced

and guaranteed.

(29) See the articles regarding Poland, D.D.R., Hungary and the U.S.S.R. in Dünkel/van Zyl

Smit (fn. 24). To the reality of corrections in the East European countries in the time before

the political change-overs cf. Schroeder, F.-Ch. : Menschenrechte im Strafverfahren und Straf-

vollzug. In : Menschenrechte in den Staaten des Warschauer Paktes. Bericht der unabhängigen

Wissenschaftlerkommission. Deutscher Bundestag, 11. Wahlperiode, Drucksache 11/1344,

pp. 195-208 (204 et seqq.).

(30) BVerfGE 33, p. 1; Calliess/Müller-Dietz (fn. 23), pp. 8 et seqq.; Niebler (fn. 21),

p. 1568; Schôch, H. in

G. Kaiser, H.-J. Kerner, H. Schôch : Strafvollzug. Ein Lehrbuch.

Heidelberg 1982*, pp. 101 et seqq.

(31) Ref. in Niebler (fn. 21), pp. 1573 et seqq.

(32) Feest, J., Selling, P. : Rechtstatsachen über Rechtsbeschwerden. Eine Untersuchung zur

Praxis der Oberlandesgerichte in Strafvollzugssachen. In

Kaiser/Kury/Albrechts (fn. 2),

pp. 247-264 (261).

— 157 —

16. The ruling practices of the European Commission for Human Rights and

of the European Court of Justice for Human Rights are of prime interest on account

of their international importance. This is not in contradiction with the fact that

countries with an independent administration of justice that grant the prisoners the

possibility of applying to the courts have already achieved a high or even higher

standard as concerns the realization of human rights in penal institutions. It is

assumed that the most severe violations of human rights occur where no court or

independent control agency is able to shed light upon the everyday life of prisoners.

17. Out of a total of 2,000 individual appeals that the European Commission

for Human Rights had to deal with in the first 15 years of its existence, 40 % of

which had been lodged by prisoners, only 4 were considered well-founded. The

disappointing way the appeals were dismissed and the fact that a firm standpoint

was rarely taken were complained about. For this reason, essential impulses for the

prison reform by the ruling practice of the European Commission for Human Rights

were questioned or doubted until the early 70s (33). This situation is said to have

changed but little in the course of the 70s in spite of the fact that most of the

individual appeals were now filed against different states than before. In the late

70s and the mid 80s, only 24 % and merely 12 to 13 %, respectively, of all in-

dividual appeals were lodged by imprisoned persons (34).

18. The prison legislation of the European countries has been brought into

correspondence with the requirements of the European Convention for the Protec-

tion of Human Rights or national constitutions irrespective of the ruling practice of

the European Commission for Human Rights in that legal provisions were either

created or amended.

19. In those countries which fully guarantee the /egal protection of prisoners

there already exist different models and solutions. Apart from intraadministrative

control (in Hungary (35), England and France — in spite of a prison court) or

supervision by independent supervisory commissions (e.g., in the Netherlands) and

the so-called “ombudsman” (e.g., in Sweden), there is also the possibility of judicial

(33) Cf. Kaiser (fn. 3), p. 334; closer Ganter, H.-G. : Die Spruchpraxis der Europaïschen

Kommission für Menschenrechte auf dem Gebiet des Strafvollzuges. Bonn 1974, pp. 184,

188; Mikaelsen, L. : European Protection of Human Rights. Alphen aan den Rijn 1980, pp. 20

et seqq. ; Zellick, G. : Human Rights and the Treatment of Offenders. In : J.A. Andrews (Ed.) :

Human Rights in Criminal Procedure. A Comparative Study. The Hague et al., 1982, pp. 375-

416 (375 et seqq.); more recently Müller-Dietz, H. : Entwicklungstendenzen des Strafvollzugs

im internationalen Vergleich. Zeitschrift für Strafvollzug 38 (1989), pp. 323-333 (325).

(34) Council of Europe

Yearbook of the European Convention on Human Rights 1984.

Dordrecht et al., 1990, p. 269; regarding the decision-making practice of the European Court

on Human Rights and the European Commission of Human Rights — which in general is

known to be very slow — see Council of Europe : Digest of Strasbourg Case-Law relating to

the European Convention on Human Rights; see furtheron van Dijk/van Hoof (footnote 2).

(35) Nagy, F. : Strafvollzug in Ungarn. In : Dünkel/van Zyl Smith (fn. 24); for Hungary see

also Müller-Dietz (fn. 33), p. 325.

— 158 —

control (in West Germany, Switzerland, Austria and Sweden). Where individual

applications pursuant to Art. 25 of the European Convention on the Protection of

Human Rights are admissible, there exists the above-mentioned possibility of ap-

plying to the European Commission for Human Rights, the importance of which,

though decreasing in quantity, is of a “general-preventive” decisive nature.

However, even those countries where the juridification of the execution of punish-

ment and judicial review have achieved a high standard, the execution of liberty-

depriving sanctions is not unproblematic either (36).

20. In West Germany the questions concerning human rights in the execution

of sentences can be recognized in particular by the decisions taken by the courts.

Especially the Federal Constitutional Court (37) (the highest German court) and the

Higher Regional Courts (38) which are the special courts of last instance criminal

jurisdiction have taken numerous decisions on questions concerning human rights.

Above all, concerning the rights of prisoners an extensive ruling practice has

developed in the course of the 13 years West German Prison Law has been in force.

On the whole, as a result of this, the question concerning the legal status of prisoners

was settled and the human rights were strengthened.

21. However, the noticeable reservedness of the pertinent literature with regard

to questions concerning human rights in penal institutions contrasts with the court

rulings that exist also at international level. As emphasized at the beginning, ques-

tions concerning human rights have received increased notice lately in connection

with criminal proceedings and substantive criminal law (39). The discussion of

problems in correctional institutions, in comparison, is lagging behind (40).

(36) Feest/Selling (fn. 32), p. 262; regarding the prisoners’ right to legal representation —

when these are accused of committing criminal offences while inside prison cf. Treacy, V. :

Prisoners’Rights submerged in Semantics. The Howard Journal 22 (1989), pp. 27-50; Schôch,

H. in G. Kaiser, H.-J. Kerner, H. Schôch : Strafvollzug. Ein Studienbuch. Heidelberg 1983*,

pp. 99 et seqq.

(37) Cf. Niebler (fn. 21), pp. 1567 et seqq.

(38) Overview by Franke, J. in Neue Zeitschrift für Strafrecht 1985, pp. 307 et seqq., pp. 349-

356; Neue Zeitschrift für Strafrecht 1986, pp. 304 et seqq., 351-355; Neue Zeitschrift für

Strafrecht 1987, pp. 319 et seqq, 356-361 ; Bungert, W. in Neue Zeitschrift für Strafrecht 1988,

pp. 354-358, 399-403.

(39) See fn. 2.

(40) In this connection the F.R.G. is a concrete exception as a detailed discussion of dogmatic

basic law existed in the 70's already; to this topic cf. references in fn. 21; for England see

recently Treverton-Jones, G.D. : Imprisonment. The Legal Status and Rights of Prisoners,

London 1989.

— 159 —

IV. RIGHTS OF LIBERTY AND EXECUTION OF

SENTENCES

22. The deprivation of liberty in the execution of sentences and penal measures

deprives the prisoner of the opportunity of exercising his rights of liberty to a large

extent both ex definitione and factually. It seems however that this is nowhere

considered to be incompatible with the human rights and in particular with human

dignity. In spite of the internationally held opinion that liberty-depriving sanctions

may only be executed as a last resort and for the minimum necessary period, an

international comparison reveals that there are still great differences as regards the

duration and frequency of the imposition and execution of liberty-depriving sanc-

tions in practice in spite of concurrent basic conceptions. This is also shown by the

West European prisoner rates which vary between 40 and 115 per 100,000 inmates;

if East Europe is included the margin of variation is about twice as large (41).

On the other hand, the criminal policy demand for an abolishment of the prison

sentence as raised in particular by the abolitionists (42), is (not yet) a dictate of

human dignity or other human rights. This applies also to prison sentences between

10 and 20 years and even to life sentences, a fact that is widely criticised (43). Only

excessive, high or cruel prison sentences violate human dignity (44). The basic

prerequisites for an individual and social existence, however, have to remain pro-

tected (45).

23. The liberty the prisoner has left in spite of confinement finds expression

in the kind of accomodation, the possibilities of decorating his cell, recreation and,

(41) See Prison Information Bulletin December 1988, p. 22; Kubiak, J. : Veranderingen bin-

nen de strafrechtssystemen van de Oosteuropese staten. In : Perestrojka en strafrecht. Justitiële

Verkenningen 15 (1989), 4, pp. 8-20 (13); Lammich, S. : Demokratisierung und Strafrecht in

Ungarn. Juristenzeitung 1990, pp. 182-184; id. : Perestrojka und Strafrecht in der UdSSR.

Entwicklung des Strafrechts, der Strafrechtspraxis und der Kriminalität seit 1985. Monats-

schrift für Kriminologie 73 (1990); Kaiser, G., in Kaiser/Kerner/Schôch (fn. 30), pp. 41 et

seqq.

(42) Kaiser, G. : Abolitionismus — Alternative zum Strafrecht. In : W. Küper (Ed.) : Fest-

schrift für K. Lackner zum 70. Geburtstag. Berlin et al. 1987, pp. 1027-1046; Müller-Dietz

(fn. 33), pp. 324, 328 w. ref.; Schumann, K., Steinert, H., VoB, M. (Eds) : Vom Ende des

Strafvollzugs. Ein Leitfaden für Abolitionisten. Bielefeld 1988; Sievering, U.O. (Ed.) : Alter-

nativen zur Freiheitsstrafe. Frankfurt/M., 1982.

(43) Critical in particular Weber, H.-M. : Die Abschaffung der lebenslangen Freiheitsstrafe.

Monatsschrift für Kriminologie 73 (1990), pp. 65-81 (81) w. further ref.; Huussen, A.H.Jr. :

Deprivation of Liberty : a bourgeois alternative to corporal punishment ? In : The Centenary

of the Deprivation of Liberty in the Netherlands (Symposium), Report Groningen April 15-18,

1986, 13-26; Müller-Dietz (fn. 33), pp. 324, 329 w. ref.; see also fn. 42.

(44) Art. 3 EHRC; Nipperdey, H.-C. : Die Würde des Menschen. In

F. Neumann, H.-C.

Nipperdey, U. Scheuner (Eds) : Die Grundrechte, vol. 2, Berlin, 1954, pp. 1-50 (15);

BVerfGE 1, 332; more comprehensive with regard to human dignity Stern (fn. 11), Sec. 58.

(45) Benda, E. : Die Menschenwürde. In : E. Benda e al. (Eds) : Handbuch des Verfassungs-

rechts, Berlin et al., 1983, pp. 107-128 (117); BVerfGE 45, pp. 187 (228).

— 160 —

moreover, in the fact whether and what private objects he is left for his personal

use (46). In this connection, the prisoner is basically only subject to the statutory

restrictions of his liberty. If the law does not contain any special regulation he may

only be subjected to restrictions which are absolutely essential to maintain security

or to avert a serious disturbance of the institutional order.

V. HUMAN RIGHTS AND OBJECTIVE OF

CONFINEMENT

24. The respect for human dignity does not only find expression in the pris-

oner’s accomodation, i.e., humane containment, and in the effort to avoid detrimen-

tal effects of confinement, but also in the objective of confinement.

25. For a long time, treatment and resocialization were considered the objec-

tives of confinement. Under the influence of the Minimum Rules of the United

Nations and the New Social Defense Movement, and partially also on account of

improvements in the field of psycho- and behavior therapy, the emphasis on the

concept of resocialization has prevailed internationally so far. In 1966, this objective

was incorporated both in the International Covenant on Civil and Political Rights

which has been in force since 1976 and in 1978 even in the new Spanish Consti-

tution. The Netherlands as well as Denmark and Sweden were regarded as the

pioneers of this idea. This trend has also had a lasting impact on the execution of

sentences in socialist states, on the prison legislation of Austria, Switzerland and

West Germany and, to a lesser degree, also in England and France (47).

26. Since the early 70s, the concept of treatment has been attacked increas-

ingly, even though its generally humanising effect cannot be overlooked. To the

extent that the objections concern the lack of efficiency, they are irrelevant themati-

cally. For it is not the intent of this paper to discuss the success or failure of

resocialization in penal institutions (48), but to deal with the question as to the legal

(46) Approaches in v. Münch, I. : Die Grundrechte des Strafgefangenen. Juristenzeitung 1958,

pp. 73-76; to the actual legal situation see Niebler (fn. 21), p. 1583; for Switzerland, cf. the

decisions of the (Swiss) Federal Court of 4 April 1973, BGE 99 Ia, pp. 262 (266 et seqq.),

and of 30 June 1976, BGE 102 Ia, pp. 279 (283 et seqq).

(47) Kaiser (fn. 15), p. 604.

(48) Kerner, H.-J. in Kaiser/Schôch (fn. 30), pp. 427, 433 et seq., 477; Kaiser, G. : Krimino-

logie. Heidelberg 1988?, 266 et seqq., pp. 895 et seqq.; Cullen, F.T., Gendreau, P. : The

Effectiveness of Correctional Rehabilitation : Reconsidering the “Nothing works” Debate. In :

L. Goodstein, D.L. McKenzie : The American Prison. Issues in Research and Policy. New

York et al., 1989, pp. 23-44; Thornton, D.M. : Treatment Effects on Recidivism : A Reap-

praisal of the “nothing works” Doctrine. In B. Mac Gurk et al. : Applying Psychology to

Imprisonment : Theory and Practice, London, 1987, pp. 181-190; Schüler-Springorum, H. :

Die Resozialisierung des normalen erwachsenen Straftäters. In

Festschrift für Maihofer

(fn. 2), pp. 503-515 (507).

— 161 —

permissiblity of such endeavors and possible implications for the admissiblity of

human rights. This becomes clearly visible, if, e.g., a person is to be treated against

his will. Although, according to the West German opinion, human rights and re-

socialization in the execution of sentences do not preclude each other in principle,

and although the objective of confinement is above all considered a product of

human dignity and the principle of reintegrating the prisoner into the legal commu-

nity is even attributed constitutional quality (49), a number of unintended side ef-

fects or even inadmissible repercussions on the status of the prisoner with regard to

human rights cannot be overlooked.

27. E.g., one has to expect problems if the treatment aimed at is not granted,

if it is forced upon the prisoner or if he refuses to participate. The centuries-old

postulate dating back to the penitentiaries of Amsterdam, according to which one

should strive to compel into behaving well rather than to avenge evil (50), has

obviously become questionable. For this reason there is a general trend towards an

approval of the right to treatment on the one hand, but also of the right to refuse

treatment on the other (51). However, exceptions are also recognized, e.g. in special

critical situations which necessitate measures such as forced feeding (52). Difficult

situations as concerns decision-taking may also arise in connection with special

groups of prisoners such as drug-addicted delinquents or mentally ill lawbreakers

who lack insight into their illness, e.g., in case conventional confinement delays or

impedes the treatment aimed at or if, in case the prisoner refuses treatment, the

pressure exerted on him is increased in such a way that it is to be doubted whether

the consent finally obtained is a ‘“free” decision.

28. No objections can presumably be raised if the judge confronts a drug-ad-

dicted offender with the alternative to undergo treatment for curing drug addicts or,

in case of refusal, to tolerate being committed to a center for drug addicts or to

serve a sentence immediately which has been imposed in addition to the measure.

Although the motivation for treatment through (partial) serving of a sentence —

hanging over the offender like the sword of Damocles — and hence through a

so-called “Leidensdruck” (pressure of suffering) may seem inappropriate or even

(49) BVerfGE 35, pp. 202 (235); 40, pp. 276 (283 et seq.); 45, pp. 187 (238 et seqq.). From

these court decisions the decision-making practice even derives measures which curtail basic

rights, for example lately the possibility to curtail the liberty of art, cf. Zeitschrift für Straf-

vollzug 38 (1989), p. 374.

(50) Schôch, H. in Kaiser/Kerner/Schôch (fn. 30), p. 82.

(51) BVerfGE 10, pp. 302; 22, pp. 180 (219 et seq.); 35, pp. 202 (235 et seq.); 40, pp. 276

(284 et seq.); Kaiser, G. : Befinden sich die kriminalrechtlichen MaBregeln in der Krise ?

Heidelberg 1990, p. 28; to the situation of so-called criminal patients in Finland, which is

needing clarification, Tokala, J.-P. : Mental Patients, Criminal Patients and Due Process :

Problems of law and legal policy in involuntary treatment. In : Research Report Summaries,

ed. by the National Research Institute of Legal Policy. Helsinki 1990, pp. 3-5.

(52) Rinke, W. : Therapeutische ZwangsmaBnahmen bei Mabregelvollzug in Psychiatrischen

Krankenhaus. Neue Zeitschrift für Strafrecht, 1988, pp. 10-15 (11, 15); Kaiser (fn. 51), p. 28.

— 162 —

dysfunctional for achieving the objectives of the measures concerned (53), no ob-

jections can be raised from the standpoint of human rights, as the offender may

choose the alternative that is most in accordance with his interests.

29. Although treatment might be in the best interest of the inmate, it presup-

poses his voluntary participation and will. For this reason the prison authorities are

not permitted to dispose of the prisoner’s own personal data they have gained

Kknowledge of freely or for any purpose. At least in Germany, information shall in

future be permitted to be transmitted to the police (for the so-called “Haft-

datei””) (54), a scientific research for evaluative purposes or to statistical offices (55)

on legal authority only. An intraadministrative regulation (56) is no longer suffi-

cient. Human dignity, the general right to privacy or the right to dispose of one’s

own personal data demand that we take data protection seriously also in the execu-

tion of sentences and penal measures (57). Consequently, according to rulings of

the European Commission for Human Rights, the relevance of the human rights

with regard to the accumulation and storage of personal data is recognized. They

are considered an encroachment on Art. 8 of the European Convention on the Pro-

tection of Human Rights and hence require special justifications (58).

30. This redefinition, appropriate in the light of human rights, also has an

effect on empirical research into the execution of sentences — i.e, both on research

conducted by state agencies into this domain and on the independent science (59).

However, in West Germany, e.g., the law-makers have set forth special “research

(53) See the further-leading ref. in Kaiser (fn. 51), pp. 26 et seqq.

(54) Kerner, H.-J. : Zugang des Forschers zu aggregierten Daten und Karteien. In : J.-M. Jehle

(Ed.) : Datenzugang und Datenschutz in der kriminologischen Forschung. Wiesbaden, 1987,

pp. 201-228 (212).

(55) Kerner, H.-J. : Amtliche Datensammlungen in der Strafrechtspflege : Bundesrepublik

Deutschland. In : J.-M. Jehle (Ed.) : Datensammlungen und Akten in der Strafrechtspflege.

Wiesbaden 1989, pp. 13-44 (40); for Switzerland see Besozzi, C. : Amtliche Datensammlun-

gen in der Strafrechtspflege. Die Situation in der Schweiz. In : Jehle, loc. cit., pp. 109-138;

for Austria, cf. Gôdl, W. : Amtliche Datensammlungen in der Strafrechtspflege. Die Situation

in Osterreich. In : Jehle, loc. cit., pp. 93-108.

(56) For example No. 5 of the administrative Rules for Corrections (“Vollzugsgeschäftsord-

nung”) of the Federal Republic of Germany, publ. in Strafvollstreckung, Strafvollzug, Strafre-

gister. Beck’sche Textausgaben, München, 19837.

(57) Stoltenberg, K. : Legislatorische Erwägungen zum Datenschutz in der kriminologischen

Forschung. In

Jehle (fn. 54), pp. 178-197 (183); Kaiser, G., in Kaiser/Kerner/Schôch

(fn. 30), p. 210.

(58) European Commission on Human Rights. EuGRZ 8 (1981), p. 120; id., EuGRZ 9 (1982),

Pp3IS/4

(59) Steinhilper, G. : Glanz und Elend justizinterner Forschung. In : Jehle (fn. 54), pp. 351-

366 (356); to the command of a bond to a specific purpose in the area of data processing

HeuBner, H. : Zur Zweckbindung und zur informationellen Gewaltenteilung in der Rechtspre-

chung des Bundesverfassungsgerichts. In

Festschrift für H. Simon. Baden-Baden 1987,

pp. 231-242.

— 163 —

clauses” in the laws in order to prevent research — which is also in the interest of

imprisoned persons — from being hindered. According to these clauses, empirical

research, to the extent that it concerns the personal data of convicted prisoners and

depends on information derived from prison files and an analysis thereof, is admis-

sible if the prisoner concerned has consented or in case of a predominant public

interest. Moreover, the concerns of the prisoner which are worth being protected

may not be encroached upon (60).

31. The execution of indeterminate liberty-depriving sanctions is a further

problematic issue. The emerging international attitude towards such sanctions is

becoming increasingly reserved or even negative with justifications ranging from

constitutional objections to violations of human rights on account of disproportion-

ality. For example, in the case of a mentally ill law breaker the West German

Constitutional Court decided that the longer he is institutionalized, the higher the

demands are on the proportionality and the admissible continuation of confinement

which hence need to be examined more intensely (61). In order to avoid a violation

of the law it is necessary to check whether the reasons for the deprivation of liberty

still exist. This ought to be done at regular intervals which should not be too

large (62).

32. The same applies to persons imprisoned for life. According to rulings of

the Constitutional Court, these prisoners also have to be left the chance of regaining

their liberty by way of conditional release after having served a longer period of

time in prison (63). From this angle, however, the life sentence is, in the long run,

also a prison sentence of a relatively indeterminable duration.

In contrast to this, a number of US States have provided for an exclusion of

release from prison in case of life imprisonment. It concerns both those convicted

of murder and dangerous habitual offenders. These two groups of offenders are

hence denied the chance of being released on probation. According to rulings of the

US Supreme Court, this is not unconstitutional, as the US Constitution does not

grant a claim to early, conditional release. The Supreme Court, however, reviewed

a case where the offender had been sentenced to life imprisonment without a chance

of conditional release by the standard of the 8th Amendment (cruel and unusual

(60) Cf. the drafts to the Third Amendment of the Federal Law on Data Processing (Draft

Sec. 36) and of the Law on Administrative Procedure (Draft Sec. 3d) in Printed Matter of the

Federal Upper House (“Bundesrats-Drucksache”) No. 618/88, and the draft to the Amendment

of the Law on Criminal Procedure (“StVAG”) of 1988, publ. in excerpts as of 3rd November

1988 in Hobe, K. : Auskunft aus Akten sowie Akteneinsicht für wissenschaftliche Zwecke.

Die Regelung im Entwurf des StVAG 1988. In : Jehle (fn. 55), pp. 287-298 (291).

(61) BVerfGE 70, pp. 297 (307 et seqq.).

(62). Cf. to this item Sec. 67d und e Penal Code of the F.G.R.

(63) BVerfGE 45, pp. 187 et seqq. (229); Beda (fn. 45), p. 117; see also Molinari, F. : Das

Sanktionen-system Italiens

Rechtsgrundlagen, Praxis, Rechtsprechung des Verfassungsge-

richts. In : G. Kaiser, H.-J. Kerner : Festchrift für H. Gôppinger, Berlin et al., 1990, pp. 477-

198 (193).

e Gs

punishment); the sentence was quashed on the ground of a disproportionate appli-

cation of criminal law (64).

33. However, the possibilities of control set forth in European laws are, e.g.,

the so-called “Vollzugspläne” (treatment plans) and the documentation of the course

of confinement. Internationally, there exist possibilities of granting prison leaves

and conditional release after a certain period of time has passed and if further

prerequisites for future legal behaviour are met. In America, the only possibility left

in such a case is an act of pardon (65).

34. Resocialization as the objective of confinement is already rather problem-

atic, as it is not permitted to degrade the prisoner to a mere object of expedient

treatment (66); this dubiousness, however, applies even more to the concept of

effective containment. Although it may be justified for a certain group of prisoners,

it ought not to be carried to extremes. For this reason excessive containment at the

expense of the prisoner cannot be justified (67). Although the objective of contain-

ment or incapacitation has undergone a considerable renaissance after the move

away from the ideology of treatment in the early 70s — in view of the increasing

crime rate and the observation that a small minority of offenders is responsible for

a large proportion of criminal acts, the effort to incapacitate this group through an

extensive deprivation of liberty is understandable — such a strategy is almost in-

evitably coupled with an overcrowding of penal institutions. E.g., in 1989, the

number of convicted prisoners totaled more than 600,000 (not counting prisoners

on remand), which is the highest number ever in the history of US penal institu-

tions (68). This overcrowding, however, decisive in our context, is inevitably

coupled with repercussions on the guarantee of human rights, particularly of

humane accomodation (see VI. below).

35. Therefore it is understandable that selective incapacitation has been rec-

ommended since the early 80s instead of collective incapacitation (69). Such a

(64) See Mills, E.M. : Eighth Amendment — Cruel and Unusual Punishment : Habitual Of-

fender’s Life Sentence without Parole is Disproportionate. The Journal of Criminal Law and

Criminology 74 (1983), pp. 1372-1386 (1380 w. ref.); discussing the right to rehabilitation

Rotmann, E. : Do Criminal offenders have a Right to Rehabilitation. The Journal of Criminal

Law and Criminology 77 (1986), pp. 1023-1068.

Its Current Status and a Research

(65) Cheatwood, D. : The Life-without-Parole Sanction

Agenda. Crime and Delinquency 34 (1988), pp. 43-59 (48 et seqq.).

(66) Benda (fn. 45), p. 117.

(67) Kaiser (fn. 3), p. 604.

(68) Blumstein, A. : American Prisons in a Time of Crisis. In

Goodstein/Mac Kenzie

(fn. 48), pp. 13-22 (13).

(69) See Blumstein, A. et al. (Eds) : Criminal Careers and ““Career Criminals”. Vol. 1. Was-

hington/D.C., 1986, pp. 158 et seqq.; Barnett, A., Lofaso, A.J. : Selective Incapacitation and

the Philadelphia Cohort Data. Journal of Quantitative Criminology 1 (1985), pp. 3-36; v.

Hirsch, A. : The Ethics of Selective Incapacitation : Observations on the Contemporary De-

bate. Crime and Delinquency 30 (1984), pp. 175-194; Moriarty, L.J. : Ethical Issues of Se-

lective Incapacitation. Criminal Justice Research Bulletin 3 (1987), pp. 1-4.

— 165 —

strategy, however, presupposes a correct assessment of the offender’s dangerousness

by means of diagnosis and prognosis in order to avoid so-called “‘false positives”

and “‘false negatives”, to say nothing of the constitutionality of this procedure (70).

Apart from ethical objections that have been raised in this connection (71), it is also

argued that this strategy violates human rights. For it is possible that part of the

prisoners spend a disproportionately long time in prison on account of a consider-

able proportion of incorrect prognoses of dangerousness. Although, from the per-

spective of human rights, the classification of prisoners according to degree of

dangerousness is not altogether inadmissible, objections arise if incorrect prognoses

of dangerousness result in excessively long terms of imprisonment and if no control

procedures are implemented in the prison administration which render possible

corrections.

36. In order to eliminate difficulties, the strategy of “categorial incapacita-

tion” (72) has been developed as an alternative to the aforementioned strategies

which are prone to mistakes. According to this strategy, offenders are classified

according to types of offenses committed. Perpetrators of serious or dangerous

criminal acts with normally longer periods of imprisonment are distinguished from

perpetrators of less serious offenses. But even this strategy does not completely

eliminate the problems of thought and the implications concerning human rights,

because, as mentioned earlier, even those imprisoned for life ought not to be denied

the chance of reintegration into society.

37. The current call for privatization of penal institutions is rooted in the

discussion on the objectives of confinement, i.e., in the idea of effective contain-

ment and the resulting overcrowding of prisons on the one hand, and the presumable

failure of confinement and the “rehabilitative ideal” on the other (73). But one has

to start from the fact that the legal status of convicted prisoners in a polity may not

be impaired through the intervention of a private institution. The execution of sen-

tences is regarded as a classical field of application of the state power monopoly,

and, in the interest of limiting its power, with inherent obligations and legal

(70) Kaiser, G. : Normative Voraussetzungen und ethische Implikationen sozialwissenschaft-

licher Forschung unter besonderer Berücksichtigung der Kriminologie. Symposium für

D. Goldschmidt zum 75. Geburtstag, Berlin, 1989 (unpubl. hitherto).

(71) See v. Hirsch (fn. 69); Moriarty (fn. 69); Bettmer, F., Kreissl, R., VoB, M. : Die Kohor-

tenforschung als symbolische Ordnungsmacht. Zur Neuordnung von Kriminalität zwischen

Diversion und “Selective-Incapacitation”. Kriminologisches Journal 20 (1988), pp. 191-212

(203).

(72) See v. Hirsch A. : Categorial Incapacitation. In

Past or Future Crimes. Deservedness

and Dangerousness in the Sentencing of Criminals. Manchester, 1986, pp. 149 et seqq. ; Kaiser

(fn. 51), p. 15, fn. 58.

(73) Jung, H. : Paradigmawechsel im Strafvollzug. Eine Problemskizze zur Privatisierung der

Gefängnisse. In : Kaiser/Kury/Albrecht (fn. 2), pp. 377-388 (385); moreover to Privatization

Weigend (fn. 3), pp. 289, 291 et seqq., and National Institute of Justice : The privatization of

corrections. February 1985; see also Logan, Ch.H. : Proprietary Prisons. In : Goodstein/Mac

Kenzie (fn. 48), pp. 45-64; Doleisch (fn. 9), p. 36.

— 166 —

guarantees. It is simultaneously a domain characterized by a specific strained rela-

tion between limited restrictions of rights on the one hand and grants of rights on

the other. It therefore does not suffice to regulate these restrictions of rights by law ;

rather, the guarantees concerning human rights shall have to prove their worth time

and again in the prison routine.

The decisive question is therefore whether and to what extent the human rights

may be implemented and guaranteed in a commercialized prison system. As ex-

pected, this aspect constitutes one of the focal points of the North American discus-

sion on the privatization of prisons where even the supporters consider this the

decisive problem (74). In North American constitutional law the principle

““The

state cannot by delegation evade his own legal liabilities” is applied, a principle

which may certainly also lay claim to validity beyond that. Constitutionally oriented

comments, however, regret the fact that “private prisons operate outside direct pub-

lic scrutiny and outside the traditional checks and balances” (75). For this reason it

is feared that even strict conditions and standards are necessarily inadequate, con-

siderable dangers of misuse are feared (76) and the warning is issued that “the

private economic goal of profit must not be allowed to displace prisoners’rights to

a fair treatment” (77).

However, it is doubtful whether private prisons are able to operate economi-

cally under obligations which take into account the requirements of the human

rights on the one hand and in accordance with the investors’will on the other.

Thinking in terms of private economy, the implementation of the necessary intensive

organized public programs and control structures would probably result in the dys-

functionality of private organizations. As a consequence, the private sector of the

economy would probably soon lose interest or call for subsidies (78). Therefore, as

long as confinement is highly moulded by restrictions of rights, it is hardly possible

to commercialize the operation of whole institutions. E.g., even in the U.S.A. the

entire prison system shall not be privatized for some time to come. On the contrary,

the possible “private share” amounts to less than 1 % (79). Most of the individual

States intend to wait and see. The countermovement has mobilized, stating that it

is intolerable that confinement is put on a level with garbage collection (80) and

(74) Jung (fn. 73), p. 383 w. ref.; McConville, S. : Aid from Industry? Private Corrections

and Prison Crowding. In : D. Gottfredson, S. McConville (Eds) : America’s Correctional Cri-

sis. Prison Population and Public Policy. New York 1987, pp. 229 et seqq.

(75) Jung (fn. 73), p. 383 w. ref.; Dunham, D. : Inmates’Rights and the Privatization of

Prisons. Columbia Law Review 86 (1986), pp. 1475-1494,

(76) Jung (fn. 73), p. 384 w. ref.; Wecht, D. : Breaking the Code of Deference. Judicial

Review of Private Prisons. Yale Law Journal 96 (1987), pp. 815-831 ; Sullivan H.J. : Privati-

zation of Corrections and the Constitutional Rights of Prisoners. Federal Probation 53 (1989),

No. 2, pp. 36-42.

(77) Jung (fn

. 73), p. 384 w. ref.; Dunham (fn. 75), p. 1503.

(78) Jung (fn

. 73), p. 384.

(79) Jung (fn

. 73), p. 386 w. ref.; McConville (fn. 74), p. 234.

(80) Jung (fn

. 73), p. 386 w. ref.; Beto, G. : Don’t privatize prisons. Houston Chronicle of

10 May 1987

— 167 —

that there is a noticeable effort to steal out of the constitutional responsibility for

the execution of sentences. “Questions concerning people’s freedom should not be

contracted out to the lowest bidder” (81).

38. However, the objectives of confinement and penal policy concepts set forth

in the laws should generally be considered an andeavor to humanize confinement.

E.g., the internationally disputed concept of treatment, the principles of differentia-

tion and classification (82) as well as the endeavor to prevent detrimental effects of

confinement support a humane execution of liberty-depriving sanctions. As ex-

pected, the programs are not always realized in practice. In a number of countries

(e.g., France) not even the separation of convicted prisoners from prisoners awaiting

trial is guaranteed. The same applies to Italy and Spain where the penal institutions

often do not separate the prisoners into classes although the classification of pris-

oners and the inspection thereof every six months is required by law (83). This

shows the relevance of the number of personnel and of the equipment available to

an institution to the reality of confinement.

Moreover, the ideas as to which principles are the appropriate ones and as to

the way to solve the conflicts between them are occasionally divided. This makes

clear the different ideas regarding the appropriate accomodation of prisoners. While

the East European states and Japan favour accomodation in dormitories, accomoda-

tion in individual cells is aimed at in most Western European countries. In practice,

however, this aim has not been realized fully yet (84).

VI. HUMAN RIGHTS, ACCOMMODATION AND

CONTACTS WITH THE OUTSIDE WORLD

39. In case an offender needs to be imprisoned at all, the conditions of con-

finement are required to ensure respect for human dignity. Viewed from this stand-

point, the relevant issues are particularly the determination of the minimum space

per prisoner and the permissibility of overcrowding, the problem of monitoring

prison cells by means of peepholes and cameras (85) and confinement in a solitary

cell or a maximum security unit.

(81) Jung (fn. 73), p. 386 w. ref.; Robbins, I. : Privatization of Corrections. Defining the

Issues. Judicature 69 (1986), pp. 325-326 (326).

(82) Treverton-Jones (fn. 8), pp. 37 et seqq. : European Prison Rules (fn. 8), Rules, pp. 11-

13; Kaiser, G. in : Kaiser/Kerner/Schôch (fn. 30), pp. 205 et seqq.

(83) Kaiser (fn. 15), p. 607.

(84) Kaiser (fn. 15), p. 607.

(85) Too brief Altenhain, G.A. : Das Grundrecht der Menschenwürde und sein Schutz im

Strafvollzug. Zeitschrift für Strafvollzug 37 (1988), pp. 156-161 (158); OLG Saarbrücken

Neue Zeitschrift für Strafrecht 1986, p. 304.

— 168 —

40. According to a West German court ruling of 1967, overcrowding consti-

tutes a violation of human dignity (86). The execution of prison sentences was

stopped at that time as a consequence of this decision (87). Other states solved the

problem of overcrowding by introducing a waiting list (88). The minimum floor

space per prisoner, however, is assessed quite differently internationally with the

lower limit currently ranging around seven square meters (89).

41. Optical and acoustical supervision of prison cells is also able to be incon-

sistent with the Convention on the Protection of Human Rights. It is, however,

considered admissible, if it is regarded as necessary for reasons of treatment or law

and order within the institution — the latter being understood as a state character-

ized by safety of life, health, material assets as well as safe custody or orderly life

within the institution (90). Basically, visits of defense councils are not to be super-

vised ; exceptional cases, though, e.g. those involving terrorists, may call for special

regulations (91).

42. In West Germany the reproach of “isolation custody” has been raised

repeatedly in connection with confinement of terrorist violent criminals. It is true

that the law provides for extensive possibilities of restricting contacts in such cases

in order to protect the life and health of the prison personnel and third persons.

However, detained terrorists quite often reject contacts within the institution for

ideological or group-dynamic reasons (92). In 1978, the European Commission for

Human Rights dealt with the conditions of confinement of terrorists after it had been

applied to in such a case. Although it denied a violation of Art. 3 of the European

Convention on the Protection of Human Rights, it established a certain isolation of

imprisoned terrorists (93). The isolation of prisoners is only compatible with the

aforementioned Art. 3 where there are reasonable grounds to justify this measure

and if the prisoner is guaranteed a minimum of possibilities of information and

contact. It is doubtful whether that is the case if — as in a number of Swiss cantons

in case of pretrial detention — a sort of isolation is imposed which excludes any

contact with other persons except with the prison physician and the priest (94).

43. The maintenance of social relations with persons outside the institution

does not only serve the objective of confinement which is aimed at reintegration,

(86) OLG Hamm Neue Juristische Wochenschrift 1967, p. 202; see also Schmidt (fn. 7),

Pp. 3 et seqq., pp. 48 et seqq. ; also OLG Frankfurt, StrV 6 (1986), pp. 27 et seqq.

(87) Altenhain (fn. 85); Kaiser (fn. 3), p. 336.

(88) Kaiser, G. : Strafvollzug im europäischen Vergleich. Darmstadt 1983, p. 111.

(89) Schumann, K.F., in : Alternativ-Kommentar (fn. 27), Sec. 144, p. 568 w. ref.

(90) Schôch, H. in : G. Kaiser, H. Schôch : Juristischer Studienkurs “Kriminologie, Jugends-

trafrecht, Strafvollzug”. München, 1987°, p. 209; OLG Celle, Zeitschrift für Strafvollzug 29

(1980), p. 1878.

(91) Schôch (fn. 90), pp. 210 et seqq.

(92) Altenhain (fn. 85), p. 159; furthermore Niebler (fn. 21), p. 1585.

(93) Frowein, J.A. in : Frowein/Peukert (fn. 12), p. 33 w. ref.

(94) Frowein (fn. 12), p. 45.

— 169 —

but also the respect for human dignity. The prisoner is not permitted to be

completely cut off from his surrounding field. He may therefore not be isolated from

the outside world and his fellow prisoners by means of a so-called “contact ban”

for a longer period of time (95).

44. The basic right to information and the right to contact with the outside

world take full effect in this connection. In case of infringement they not only lead

to a violation of national prison legislation and international minimum rules, they

also assume the quality of a violation of human rights.

45. This applies especially to cases involving visits of spouses or near relatives

(that are worth being protected) or the exchange of letters or telephone communica-

tion with the defense council, parliamentary bodies or the European Commission

for Human Rights, as is shown by two latest rulings of this commission according

to which the repeated transfer of a prisoner without notification of his family and

the interception of letters of another prisoner are considered violations of Art. 8.1

of the European Convention on the protection of Human Rights. Both proceedings

are still pending in the main procedure — they shall determine whether these en-

croachments were justified (96).

VIL. HUMAN RIGHT OF RELIGIOUS FREEDOM

46. The freedom to practice religion (Art. 9 of the European Convention on

the Protection of Human Rights) is increasingly bringing up questions concerning

the execution of sentences. In this connection, the prison authorities are occasionally

confronted with tasks that are not only relatively new but also difficult to settle on

account of the institutions’ limited infrastructure. This is all the more so as not only

the nationalities but also the denominations and religious convictions of institution-

alized prisoners are highly different on account of the increasing internationality of

criminal activity, e.g., in the field of drug crime or other forms of organized crime.

The freedom to practice religion ranges from the possibility of making use of

spiritual welfare to the possession of basic books and items of religious observance.

In this connection, the practices of prisoners of all denominations are to be taken

into consideration, e.g., prayer rugs or certain dishes (97). This right also concerns

the celebration of and the prisoners’ attendance at services. Attendance may only

be prohibited in case of danger to the life and limb of third persons as well as grave

danger to the security of the institution (98).

(95) Altenhain (fn. 85), p. 159; BVerfGE 49, pp. 27 (64).

(96) Cf. European Commission on Human Rights. EuGRZ 12 (1985), p. 749, and EuGRZ 15

(1988), pp. 535 et seqq. ; critical to the practices in Great-Britain with regard to the prisoner’s

right to subscribe to magazines Sampson, À. : Reading their rights — the erosion of prisoners’

liberties. New Law Journal 139 (1989), 1296.

(97) Brand, E., Huchting, K. in : Alternativ-Kommentar (fn. 27), Sec. 53, pp. 248 et seqq.

(98) Brand/Huchting (fn. 97), Sec. 54, p. 257.

— 170 —

47. Furthermore, religious freedom has effects on supervisory measures, e.g.,

in connection with prison leaves. If a bodily search is inadmissible for established

religious reasons, the only possibility left in case of conflict is to transfer the pris-

oner to a closed institution where prison leaves are not granted, as the right of

religious freedom has priority (99).

VIIL. WORK AND VOCATIONAL TRAINING

48. Naturally, work and vocational training are also of central importance in

the execution of sentence. They primarily serve the objective of confinement, i.e.,

resocialization. Nevertheless, it is not only possible that the work assigned to the

prisoner contradicts his aptitudes, inclinations and wishes, in addition it is possibly

also degrading or unreasonably hard. Only now does it gain relevance as regards

human rights; apart from that, however, it possibly violates also national prison

legislation or international principles of confinement.

49. The same applies to the remuneration of prisoners (100). In general, the

wages of convicted prisoners are very low internationally. Although this possibly

appears to be a failure of criminal policy in view of the objective of reparation, it

cannot, however, be considered a violation of human rights yet.

IX. MARRIAGE AND FAMILY

50. Human rights are not considered violated if both spouses are imprisoned

and if their request that they be put together in the same institution is refused (101)

or if the imprisoned husband’s request that he be employed outside the institution

in the same enterprise as his wife is not granted (102). Only the request of impris-

oned spouses for mutual visits is to be judged differently (103).

(99) Neue Zeitschrift für Strafrecht 1986, pp. 238 et seqq. ; regarding religious exercises and

the equality before the law see the decision of the Swiss Federal Court of 13 November 1987,

BGE 113, Ia, pp. 304 et seqq. (307).

(100) To the problems concerning the level of remuneration Kaiser, G. in : Kaiser/Schôch

(fn. 90), p. 160; see also Zellick (fn. 33), p. 400.

(101) EuGRZ 5 (1978), pp. 518 et seq.; see also Müller-Dietz, H. : Untersuchungshaft und

Festnahme im Lichte der Menschenrechtsstandards. Unpubl. text of the conference held at the

occasion of the 4th German-Polish Colloquium in the field of penal law and criminology at

Ringberg Castle, April 1990.

(102) LG Wuppertal Neue Zeitschrift für Strafrecht 1988, pp. 476 et seq.

(103) Cf. European Commission on Human Rights EuGRZ 12 (1985), p. 749.

— 171 —

X. HUMAN RIGHTS AND DISCIPLINARY

MEASURES

51. A certain order and observance of social rules are necessary wherever

people are living together — especially under the constraining conditions of con-

finement. If a prisoner violates prison regulations the human rights permit imposi-

tions of disciplinary measures provided that the prisoner acted culpably, that the

nature and severity of the sanction is proportional to the offense and that, moreover,

maltreatment, corporal punishment and torture are avoided (104). Otherwise the

punishment imposed would constitute a violation of human dignity pursuant to

Art. 3 of the European Convention on the Protection of Human Rights.

XI. PROHIBITION OF DISCRIMINATION

The same applies to discrimination on grounds of sex, race, language, national

or social origin or religion which is prohibited by Art. 14 of the same convention

— not to mention violations of equal protection. Reality shows that often female

prisoners do not receive the same worts of benefits extended to male prisoners.

Services and vocational/educational programs are aimed primarily at male inmates,

while female prisoners find these same programs totally unsuitable for their inter-

ests.

The principle of equality forces the prison authorities to provide women in-

mates with treatment and facilities that are substantially equivalent to those provided

to male inmates (105).

XII. SUMMARY

1. Human rights, their significance and guarantee in the system of penal

social control has been discussed internationally for a long time. The discussion,

however, is concentrated upon substantive criminal law and the law of criminal

procedure. In contrast to this, the examination of the relevance of human rights to

the execution of sentences and penal measures is still neglected.

(104) To the Constitution’s prohibition of cruel and unusual punishments and the courts’

practice in the United States see Cleer, T., Cole, G. : American Corrections. Pacific Grove/Ca.

1990°, pp. 481 et seqq., emphasizing “the concept of totality of conditions” to declare an

institution to be in violation of the Constitution.

(105) Cf. Champion, D.J. : Corrections in the United States. Prentice Hall, Englewood Cliffs

1990, p. 376.

— 172 —

2. However, the discussion has received decisive impulses from more recent

international initiatives which strive to guarantee a humane execution of liberty-de-

priving sanctions. Initiatives to be named in this connection are the Commissions

on Torture and the Final Document of the C.S.C.E. Follow-Up Meeting in Vienna.

Past experience has shown that there is a need for broader and more effective

control measures.

3. Therefore the execution of sentences and penal measures finds itself chal-

lenged by human rights. It will have to accept being measured by them in future.

The scientific community is called upon to accompany this process in a critical

manner.

4. According to constitutional tradition and modern understanding, human

and civil rights may only be restricted by or on the basis of a formal law. Futher-

more, the national regulations, irrespective of the national validity of the inter-

national conventions are to be interpreted and applied in the light of these

conventions and in conformity with the human rights.

5. The ruling practices of the European Commission for Human Rights and

of the European Court of Justice for Human Rights are of prime interest on account

of their international relevance. Moreover, their harmonizing effects ought not to be

underestimated even though individual countries have already reached a high or

even higher standard concerning the realization of human rights in penal institu-

tions. The most severe violations of human rights are presumed to be taking place

where no control is exercised at all.

6. According to the ruling practice of the European Commission and Court

on Human Rights, however, the proportion of all individual applications filed by

imprisoned persons has decreased considerably since the 50s. This development is

probably more due to a higher observance of human rights by national legislation,

court rulings and penal institutions, rather than to the low innovative powers of the

ruling pratice.

7. There are endeavors to guarantee the legal protection of prisoners by

different national legal solutions. However, the execution of liberty-depriving sanc-

tions is far from unproblematic even in those countries where confinement and

judicial review have attained a high degree of juridification.

8. The criminal-political demand for an abolition of the long-term prison

sentence or the life sentence does not yet constitute a dictate of human dignity or

other human rights.

9. In penal institutions, respect for human rights not only finds expression in

humane accomodation, in the endeavors to avoid detrimental effects of confinement,

in the guarantee of the basic rights to information and religious freedom, but also

in the objectives of confinement.

10. Although the objective of treatment or resocialization has a humanizing

effect on confinement, it still poses a number of problems. Not only the right to

— 173 —

treatment but also the right to be exempted from treatment are to be recognized.

This is particularly the case if the treatment is intended to influence the conduct of

life of harmless offenders.

11. Human dignity, the general right to privacy and the right to self-determi-

nation as regards one’s own personal data call for a guarantee of data protection

also in the execution of sentences and in the realm of corrections. Encroachments

therefore require special justifications.

12. The longer the period of institutionalization is, the greater the demands are

on the proportionality and therefore on the admissible continuation of confinement.

They hence call for increased supervision. Even the prisoner serving a life sentence

must be left the chance of being set free by way of conditional release after having

spent a longer period of time in prison.

13. The objective of securing and incapacitation quite often leads to an over-

crowding of penal institutions which, as past experience has shown, is prejudicial

to human dignity. In case of classification and selection of prisoners and particularly

selective incapacitation possible stigmatizing effects and prognostic unreliabilities

need to be taken into consideration and controlled.

14. The current endeavors to privatize penal institutions appear problematic

from the perspective of human rights in particular. The objections to privatization

depend on whether and to what extent human rights may be secured in a commer-

cialized prison system. The state cannot abandon its obligation to guarantee human

rights by privatizing penal institutions.

15. Optical and acoustical supervision of prisoners may contradict the Conven-

tion on Human Rights, if it is not absolutely necessary or if, through total. supervi-

sion, the prisoner’s health and human dignity are prejudiced. This applies especially

to isolation of prisoners in solitary cells or high security units.

16. Of importance, moreover, is the guarantee of the basic right to information

and of the right to maintain contacts with the outside world, i.e., to close relatives.

The same applies to religious freedom, although the recent tendencies of crime

toward internationality often place too great demands on the possibilities and infra-

structure of prisons.

17. Disciplinary measures are admissible if they are in conformity with human

rights, i.e., if the prisoner acted culpably, the sanction imposed is proportional and

if the access to law and procedural due process is guaranted.

18. The principle of equality forces the prison authorities to provide female

inmates with treatment and facilities that are substantially equivalent to those pro-

vided to male inmates.

= 174 *

L’enseignement de la criminologie

à l’Université : observations

générales et perspectives

internationales*

Georges Picca**

1. Enseigner la criminologie à l’Université : dans quel but et suivant quelles

modalités? Les réponses ne sont pas unanimes et la situation est souvent bien

différente d’une région du monde à l’autre, ainsi qu’on a pu s’en convaincre depuis

hier au cours des débats. Mais, en outre un tel enseignement se heurte encore à des

obstacles qui ne permettent pas à ce dernier de trouver sa place à l’Université; une

analyse comparative des procédures suivies sur le plan international est donc parti-

culièrement utile. Quelques observations générales sur ces obstacles dans le

contexte international sont également nécessaires : tel est l’objet de ce rapport pré-

senté au nom de la Société Internationale de Criminologie.

Notre organisation a témoigné très tôt un intérêt particulier pour l’enseignement

de cette discipline. Il suffit de rappeler, en particulier, l’importante enquête interna-

tionale, conduite en 1956 sous les auspices de l’UNESCO par le Président PINA-

TEL et, un certain nombre de personnalités scientifiques de premier plan, sur cette

question. On doit également souligner les initiatives prises par notre Société en

faveur d’un Institut International de Criminologie, ainsi que les quelque quarante

Cours Internationaux dispensés à ce jour par notre organisation, visant à une plus

grande diffusion de la criminologie, notamment auprès des Universités. Ces diffé-

rentes initiatives auxquelles les universités ont toujours été associées, ont permis de

mesurer, à la fois, l’importance de ces dernières pour le développement de l’ensei-

gnement de la criminologie et, de percevoir également les difficultés que rencontre

parfois ce dernier pour conquérir une place dans le cadre universitaire.

2. «Avant d’être reconnue comme discipline académique, la criminologie a

encore un chemin accidenté et épineux à parcourir» observait L. Radzinowicz, en

1962, à l’occasion d’un large inventaire sur la recherche criminologique en Europe,

* Rapport présenté au XLI° Cours International de Criminologie (San Sebastiän, 16-21 octo-

bre 1989). L’ensemble des actes a été publié par A. Beristain et J.L. de la Cuesta dans la revue

de l’Instituto Vasco de Criminologfa, Eguakilore, San Sebastiän, abril 1990.

** Secrétaire Général de la Société Internationale de Criminologie.

— 175 —

publié sous le titre «In search of criminology». Force est de constater que plus de

vingt ans après — et pas seulement en Europe — ce chemin n’est pas entièrement

parcouru et, bien souvent, la criminologie n’est pas encore — ou difficilement —

admise, dans certaines universités.

Cet état de choses peut tenir à des raisons diverses, historiques ou régionales

mais, avant tout, cette reconnaissance de la criminologie, en tant que telle, apparaît

«modelée, à la fois, par les besoins perçus de la société face aux divers aspects de

la délinquance et, les mouvements d’idées qui renouvellent et redéfinissent les pro-

blématiques scientifiques contribuant à réordonner les priorités sociales et politiques

touchant à la question pénale» (Szabo, 1989).

Trois observations générales plaident pour un enseignement de la criminologie

au niveau universitaire :

— En dépit des réserves que cette première observation peut soulever de la part

des sciences sociales, il est essentiel de souligner la relation étroite existant entre

législation pénale et criminologie. Cela ne signifie pas que l’enseignement de cette

dernière doive être un corollaire de celui du droit pénal (comme cela est trop sou-

vent le cas dans certains systèmes nationaux notamment européens), mais, plutôt,

que la discipline criminologique ne peut être ignorée par la législation pénale. L’en-

seignement de droit pénal moderne est, en effet, difficilement concevable sans une

référence aux apports de la criminologie. Dès lors, l’enseignement de la criminolo-

gie se justifie déjà, par la nécessité de vivifier et, d’illustrer l’enseignement de droit

pénal par une connaissance de la sociologie du crime et des principales orientations

de la criminologie clinique. Cet apport, incontestable pour les juristes, doit permettre

la reconnaissance de la criminologie comme une discipline autonome et non comme

une simple partie du droit pénal, mais dont la connaissance est nécessaire pour les

pénalistes. L’expérience de nombreux pays montre cependant que cette relation

entre droit pénal et criminologie n’est pas satisfaisante; le premier annexant ou

ignorant la seconde.

— Une deuxième observation en faveur d’un enseignement de la criminologie,

réside dans l’intérêt de cette dernière : il s’agit de favoriser des vocations de jeunes

chercheurs.

Dans les systèmes nationaux dans lesquels la criminologie n’est pas systéma-

tiquement enseignée à l’Université se révèle le plus souvent une absence ou une

insuffisance de la recherche criminologique. La création de centres de recherches

directement rattachés aux services gouvernementaux responsables de la politique

criminelle n’a pas contribué à résoudre cette question, car la formation des cher-

cheurs demeure une des missions de l’Université.

Il est par suite nécessaire d’offrir, dans le cadre universitaire, un enseignement

permettant la formation, d’abord des futurs enseignants et, le développement corré-

latif de la recherche, suivant les traditions locales, soit dans le cadre des facultés de

droit, des sciences sociales ou de médecine, voire, sous l’autorité directe de l’Uni-

versité ou enfin dans le cadre d’instituts de criminologie. Cette répartition (qui est

parfois une compétition) à l’intérieur des structures universitaires est, en soi, une

— 176 —

question importante qui touche aux orientations et au contenu de l’enseignement de

la criminologie. Nous y reviendrons.

— Il est une troisième observation générale qui doit être retenue au soutien d’un

enseignement de la criminologie

c’est l’opportunité de dispenser une formation

spécialisée aux candidats à certaines professions en relation avec les services de la

justice pénale, la prévention ou, le travail social. C’est une question essentielle

abordée par le Professeur D. Szabo. On doit se demander, en effet, si, en l’état du

développement de la criminologie dans certaines régions, cette dernière peut, non

seulement faire l’objet d’un enseignement autonome mais, si elle peut être reconnue

par des professions pour la formation des candidats à ces professions ? On sait que

les réponses sont différentes et pas toujours positives. Le modèle canadien exposé

par D. Szabo offre certainement, à l’heure actuelle une des meilleures illustrations

positives à cette question ; l’enseignement et la recherche débouchant sur des pro-

fessions et emplois reconnus. Mais cela pose d’autres questions.

Faut-il, pour autant, prévoir cette formation uniquement dans un cadre univer-

sitaire ou, dans des écoles professionnelles ? Cette formation doit-elle s’inspirer du

modèle juridique, médical ou des sciences sociales ? Doit-elle enfin être diversifiée

en fonction des besoins professionnels ? La recherche de réponses à ces interroga-

tions est liée à d’autres questions plus fondamentales.

3. En effet, si les trois observations qui viennent d’être exposées peuvent suffire

à légitimer l’enseignement de la criminologie, il n’en demeure pas moins qu’elles

N

renvoient à une question de principe,

à

savoir la place reconnue (ou non) dans

certains systèmes nationaux, à la criminologie, en tant que discipline autonome.

On ne saurait dissimuler qu’il existe sur ce point des difficultés.

— La discipline criminologique n’est pas, une discipline qui se suffit à elle-

même, mais qui se nourrit des apports d’autres sciences. Ce caractère multidiscipli-

naire a souvent fait obstacle à la consécration de la criminologie en tant que

discipline autonome. Celle-ci est en effet l’objet de concurrence de la part de di-

verses sciences sociales qui en revendiquent le bénéfice. Il arrive, à l’inverse que,

négligée par toutes ces sciences, la criminologie ne soit pas reconnue en tant que

discipline autonome. Sur ce point, il faut faire la part de la responsabilité qui in-

combe aux procédures universitaires et, des critiques portant sur le contenu même

de la criminologie. Cependant, ainsi qu’on l’a souligné, il existe d’autres disciplines

dont l’autonomie n’est pas contestée et qui forment des étudiants, sans pour autant

posséder un corpus théorique élaboré ou incontesté.

— Quel contenu faut-il donner à l’enseignement ? C’est une deuxième difficul-

té, d’ailleurs liée à la première.

Il existe — il faut le rappeler — plusieurs approches distinctes en criminologie

qui ne peuvent qu’influer sur le contenu de l’enseignement : celle qui met l’accent

sur la personnalité du criminel, celle qui souligne les conséquences criminogènes

du fonctionnement des sociétés, l’orientation victimologique, et, enfin, la démarche

interactionniste. S’il faut tenir compte, sur ce point, des orientations dominantes qui

— 177 —

varient suivant les régions du monde, ainsi que des traditions universitaires natio-

nales, on ne peut se dissimuler que l’autonomie de la criminologie, en tant que

science, trouve là souvent de grandes difficultés à maintenir son identité. Il existe à

l’heure actuelle une très grande diversité dans le contenu des programmes et l’orientation

donnée à l’enseignement de la criminologie. Il existe, en effet, une très grande diversité

dans l’intitulé des Cours (Radzinowicz avait recensé près d’une vingtaine d’intitulés

dans l’enquête précitée…). Est-ce la même discipline qui est enseignée dans toutes les

universités des différentes régions du monde? On peut en douter.

— Quant aux méthodes de recherche, on sait qu’elles sont nombreuses et di-

verses (statistique, comparative, historique, etc.) et qu’il n’en existe aucune qui

puisse être considérée comme supérieure aux autres. C’est là une autre difficulté.

En effet, le choix des méthodes ne peut que conférer une physionomie propre au

contenu et aux orientations de l’enseignement.

— Enfin, il faut encore souligner que la criminologie est, par sa nature, une

discipline en évolution constante car les facteurs (multiples) qui agissent sur la

criminalité sont étroitement conditionnés, eux-mêmes, par les transformations de la

société. Ceci explique une certaine diversité dans le contenu de l’enseignement,

suivant notamment que l’on se trouve dans un pays industrialisé ou en voie de

développement. Nous en avons une illustration, notamment en Amérique Latine,

mais aussi dans les sociétés socialistes de l’Est Européen. Car l’idéologie est, aussi,

quelquefois présente dans cet enseignement.

Ces divers traits de la discipline criminologique ne sont pas sans relation avec

sa reconnaissance par l’Université. Ils contribuent aussi à expliquer les obstacles

auxquels peut se heurter cette reconnaissance.

Un autre aspect de la question doit être évoqué; il s’agit de la double mission

de l’Université : diffusion de la connaissance d’une part, et préparation à des for-

mations déterminées d’autre part. Dans quelle perspective faut-il inscrire l’enseigne-

ment de la criminologie ?

Sur ce point le rapport établi par notre Société, en 1956, à la demande de

l’UNESCO proposait l’organisation de cet enseignement dans une structure unique :

N

les instituts d’université (non rattachés à une faculté déterminée). La formation

professionnelle élémentaire était prévue dans ces instituts, soit à titre complémen-

taire. Dans cette dernière hypothèse, certains cours seulement devaient être dispen-

N

sés à l’institut, le reste de l’enseignement étant donné dans des écoles

professionnelles spéciales (écoles de police, de l’administration pénitentiaire, etc.).

Il faut voir là d’abord une proposition destinée à réduire la compétition entre

différents départements de sciences sociales ou juridiques internes aux universités.

Néanmoins, il semble difficile d’éviter de prévoir un enseignement à deux niveaux.

Un dernier aspect doit également être abordé : celui de l’utilité de l’enseigne-

ment. Certes la question se pose d’abord en termes de débouchés professionnels

pour les étudiants. Mais il me semble qu’il faut aller aujourd’hui au-delà. La de-

mande d’analyse criminologique devrait être croissante dans les années à venir, au

— 178 —

moins dans certains Etats, et il est par suite nécessaire de se préparer à satisfaire

cette demande par la formation d’experts au niveau universitaire et de praticiens au

niveau professionnel. Des tendances dans ce sens se révèlent déjà de la part des

autorités responsables de la prévention et la sécurité (notamment dans les villes), et

du secteur privé et commercial (sociétés de surveillance). Il faut voir là notamment

une conséquence du développement de la prévention «situationnelle» qui a entraîné

des études du marché, se situant souvent dans des perspectives éloignées de la

recherche de type universitaire, mais suscitant une demande inédite d’analyse cri-

minologique dans des secteurs sensibles, où le recours à des experts est sollicité. Il

y a une voie d’avenir en faveur d’un accroissement et d’une meilleure formation

d’experts de types nouveaux dans ce secteur.

4. Quelles sont les perspectives internationales de l’enseignement de la crimi-

nologie ?

A. Si l’on se réfère à la pratique internationale, on constate que l’enseignement

de la criminologie se situe le plus souvent (lorsqu’il existe) à deux niveaux : pro-

fessionnel et universitaire. Il s’agit, en effet, de répondre à des besoins, et à des

demandes, de nature différente. Si l’enseignement universitaire est ici le seul objet

du débat, il ne faudrait pas, pour autant, négliger cet aspect professionnel de l’en-

seignement de la criminologie. C’est, en effet, dans la pratique que la criminologie

trouve sa principale légitimation, elle n’est pas antinomique avec une recherche

fondamentale indispensable. Au surplus, il n’est pas certain qu’il faille séparer de

manière aussi radicale les deux niveaux d’enseignement et de formation.

A. Les obstacles auxquels se heurte encore l’enseignement de la criminologie

à l’Université sont de trois ordres. C’est par suite dans trois directions qu’il faut agir

pour lever ces obstacles.

a) Le premier obstacle tient à la nature des structures universitaires. Sur ce

point, encore, le rapport de notre Société, déjà cité, soulignait les constrastes entre

les systèmes universitaires de type continental et ceux de type anglo-saxon, au

regard de l’enseignement de la criminologie. Ces structures ont permis, ou permet-

tent, en effet, avec plus ou moins de facilité, selon les pays, la reconnaissance de

la criminologie comme discipline autonome.

Dans les systèmes nationaux, de tradition très ancienne, — le plus souvent —

dominés par un certain impérialisme juridique, la reconnaissance de la criminologie

est le plus souvent difficile et lorsque celle-ci est admise, c’est en général sous la

forme d’un enseignement complémentaire à option. C’est le cas de plusieurs Etats

européens. La complémentarité du droit pénal, si elle paraît aller de soit est néan-

moins souvent conflictuelle, la principale contestation de la criminologie, en tant

que discipline autonome, venant fréquemment des pénalistes.

Dans la mesure où les structures universitaires ne font pas une place suffisante

aux sciences sociales (ce qui est le cas souvent de ces systèmes traditionnels) la

reconnaissance de la criminologie est encore plus délicate. En revanche, la preuve

contraire a été apportée. Lorsque les enseignements de sociologie particulièrement

actifs et dynamiques existent, comme c’est le cas dans de nombreuses universités

— 179 —

Nord-américaines, ils ont souvent permis le développement de l’enseignement cri-

minologique. Le financement privé ou étatique et le degré d’autonomie de l’univer-

sité jouent également un rôle important.

Il faut, enfin, prendre en considération des procédures internes et des usages

des universités tenant à la répartition des enseignements, à l’intérêt et au prestige

respectif qui s’attachent à chacun. La situation est très inégale dans ce domaine

selon les Etats, mais néanmoins, on doit constater que — à quelques exceptions près

— la discipline criminologique n’est pas favorisée dans la distribution des ensei-

gnements. Ceci notamment par rapport, soit à des enseignements traditionnels plus

prestigieux (ce qui est le cas dans le domaine juridique), soit, surtout, face à des

enseignements nouveaux à forte connotation pratique et aux retombées économi-

ques (informatique, droit des affaires, etc.).

b) Cette observation — qui nous paraît très importante — doit conduire à

prendre en considération un autre obstacle plus général. Il est relatif à la place

reconnue aux sciences sociales, dans le système universitaire, et dans la nation. La

criminologie n’a d’autre possibilité de classement, sur le plan des disciplines, que

celle offerte par les sciences sociales; l’enseignement de la criminologie se trouve,

par là même, orienté dans une voie difficile. Les sciences sociales (il faut le rappe-

ler) n’ont pas le même poids que les sciences physiques ou de la vie. On comprend

aisément que lorsqu’il s’agit de répartir des moyens financiers la priorité ira de

préférence à la biologie ou à la physique nucléaire qu’à la criminologie. Les consé-

quences se manifestent à la fois sur le recrutement des enseignants, l’attribution des

crédits, mais aussi les débouchés, que ce soit sur le plan de la recherche comme de

l’emploi.

N

c) Un autre élément est appelé à

influencer en outre de façon significative

l’enseignement de la criminologie à l’Université; c’est la part, plus ou moins

grande, réservée à la recherche et la liaison de cette dernière avec l’enseignement.

Certes, il est logique de penser (comme nous l’avons précédemment souligné) que

c’est d’abord par l’enseignement que l’on peut susciter des vocations de chercheurs.

Il n’en demeure pas moins que la complémentarité entre enseignement et recherche

se vérifie également dans le processus inverse. L’expérience montre que la demande

et le fonctionnement de programmes de recherche dans certaines universités a

contribué à faciliter la reconnaissance d’un enseignement. La recherche fournit les

matériaux qu’il appartient à l’enseignement de diffuser; elle peut aussi constituer

une méthode d’enseignement. Plus généralement, l’enseignement unifie, coordonne

et stimule la recherche. Mais en outre, l’enseignement supérieur peut être orienté

vers la préparation des candidats à la recherche comme c’est le cas dans les ensei-

gnements de doctorat, troisième cycle ou post graduate. Dès lors, la relation ensei-

gnement et recherche ne doit pas être négligée pour le développement de

l’enseignement de la criminologie.

5. Que faut-il conclure de ces observations générales qui visent principalement

à stimuler le débat, tout en respectant les différentes communications nationales ?

— 180 —

On retrouve dans les diverses régions du monde et à des degrés divers, l’in-

fluence de ces différents facteurs dans la place respective occupée par l’enseigne-

ment universitaire de la criminologie.

D’autres facteurs doivent naturellement être aussi pris en considération

ils

tiennent à des données culturelles ou institutionnelles, régionales ou nationales.

L’histoire des universités et la tradition jouent un rôle non négligeable sur ce point.

La pression, plus ou moins forte de la criminalité et, l’importance des réponses de

la société ne sont pas — non plus — sans influence sur le développement de

l’enseignement de la criminologie.

L’avenir de cet enseignement est également conditionné par la reconnaissance

de la criminologie dans la nation, mais aussi sur le plan international, comme une

discipline autonome, rassemblant un corps de connaissances à caractère scientifique

pouvant être mises en commun et aisément transposables sur le plan pratique, afin

d’améliorer l’analyse du phénomène criminel ainsi que les politiques sociales mise

en œuvre pour prévenir et traiter cette conséquence du fonctionnement des sociétés.

C’est dire que, si l’avenir de l’enseignement de la criminologie à l’université

n’est pas entièrement entre les mains des criminologues, ceux-ci ont un rôle décisif

à jouer, pour en favoriser la reconnaissance et le développement. Nous connaissons,

sur ce point, suffisamment d’exemples significatifs dans diverses régions du monde

pour nous montrer raisonnablement confiants. Une telle initiative telle que ce 41°

Cours International se situe résolument dans cette perspective.

— 181 —

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Conclusiones generales del XLI

Curso Internacional de Criminologia

Reynald OTTENHOF*

Los participantes del XLI Curso Internacional de Criminologfa, reunidos en

San Sebastiän del 16 al 21 de Octubre de 1989, después de haber escuchado las

conferencias de eminentes especialistas venidos del mundo entero, de los represen-

tantes de las Naciones Unidas y de la Sociedad Internacional de Criminologfa,

emiten los siguientes votos :

1. El desarrollo estructural de la enseñanza universitaria de la Criminologia

aparece como una imperiosa urgencia, en funciôn de las necesidades manifestadas

por cada una de las sociedades y de las personas concernientes.

2. Desde la perspectiva interdisciplinar criminolégica, importa llevar a cabo en

las mejores condiciones y con los medios necesarios la contrataciôn, la formaciôn

y el estatuto de ensefñantes especializados en esta disciplina. Se considera oportuno

incluir también — como optativos — estudios bâsicos teolégicos y deontolégicos.

3. Las Universidades deben promover la creaciôn y el desarrollo de Institutos

de Criminologfa especializados en la enseñanza, la investigaciôn y la formacién

profesional en Criminologfa.

4. Se invita a las Organizaciones Internacionales usen de su autoridad con

vistas a permitir el desarrollo de la enseñanza de la Criminologfa de manera armo-

niosa en todas las regiones del mundo, y en particular de trabajar para la creaciôn

de un Instituto Internacional de Criminologfa.

S. Urge la planificaciôén y puesta en marcha del plan Erasmus en el campo

criminolégico.

6. Parece oportuna la creaciôn de asociaciones de criminélogos (o la amplia-

ciôn/intensificaciôn de las ya existentes) en los émbitos nacionales y autonémicos.

7. Conviene fomentar, en todas las partes donde sea posible, las iniciativas

regionales tendentes a un mejor reconocimiento de la Criminologfa como disciplina

cientffica auténoma, en una cosmovisiôn humanista, respetuosa de los derechos del

hombre, comprometida en la protecciôn de los valores sociales fundamentales.

8. Se desea la creaciôn de un premio «Juan del Rosal», destinado a recompen-

sar periédicamente a un criminélogo de lengua española.

San Sebastiän, 21 Octubre 1989

* Presidente del Comité Cientffico.

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