AIC_1994

ANNALES INTERNATIONALES DE CRIMINOLOGIE

INTERNATIONAL ANNALS OF CRIMINOLOGY

ANALES INTERNACIONALES DE CRIMINOLOGIA

ANNEE 1994 (volume 32 — 1/2)

‘_‘Sl Ta },

Æ\

> SS T

z

'Dl\“°

Cgﬁ

Li Q7

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 MIYAZAMA (Asie), Louise SHELLEY (Amérique du Nord).

Table des matières

Table of contents

Indice

Avant-propos

... .............................

Preface

ov.o.oo0.......eucuectetooen.n00.0.....—.0.0.60.0..000%..0.002..0.0.0000.0000002..0.00..—.....................

Nota preliminar

... .............................

In Memoriam : Professor F.H. Mc Clintock

A. Bottoms

Theoretical and Research Topics in international Criminology

H.-J. Kerner

.cn ......................................................................

11

Conflicts and Convergences in theoretical

and methodological Perspectives

F. Sack

.oocacoesetonuceccua…nena—C.G..—00.0..0.0...00.00.00.%%............ee............................

39

Criminalization, Decriminalization and Republican Theory

J. Braithwaite, Ph. Pettit

... ....................e.….....c.................................

61

The Enigma of Japan as a testing ground

for cross-cultural criminological studies

S. Miyazawa

81

Comments on : Professor L.W. Sherman,

“Defiance and the Science of Criminal Sanction”

M. Killias

coccotntcccecccann..0. C00 000000000000 .0.e.......................

105

Violence against the Elderly, Types, Patterns, and Explanations

E.À. Fattah

.cco..tesencecn.00.—.0.0000..0...0.0200.t2.00002%%00.%2%0%%0............................

113

Victimization and Crime : Normative and Individual Standards

of Evaluation

W. Bilsky, P. Wetzels

s... ..................................................................

135

— 5—

Avant-propos

Ce numéro des Annales complète, pour l'essentiel, la publication des actes

officiels du 11Ÿ Congrès international de criminologie (Budapest, 1993).

Il comporte également des articles de recherche. Jorge Palma nous a

apporté son aide en espagnol. Nous lui en savons gré

Preface

The main purpose of this issue of the Annals 1s to publish the second part

of the official proceedings of the 1 !th International Congress of Criminology,

Budapest, 1993.

It also contains some research papers. The editors would like to thank

Jorge Palma for his assistance in Spanish.

Nota preliminar

Este nûmero de los Anales persigue, esencialmente, la publicatiôn de las

actas oficiales del décimoprimer Congreso internacional de criminologia

(Budapest, 1993).

Incluye también articulos de investigaciôn. Agradecemos a Jorge Palma

por la ayuda que nos ha aportado en español.

Georges KELLENS

The following appreciation of the life and work of Professor F.H. McClin-

tock was written by Professor A.E. Bottoms of Cambridge University, who

studied as a postgraduate student under (the then) Mr. McClintock in 1961-62,

and then worked as his junior research colleague from 1964-70. In a slightly

edited form, the appreciation was published in The Independent newspaper on

] June 1994.

Professor F.H. McClintock

Frederick H. McClintock (always known as Derick), who has died aged

68, was one of the first British scholars to spend his whole career in the study

of criminology, and he made a significant contribution to the development of

the subject in both England and Scotland.

Beginning life in disadvantage as an orphan, Derick McClintock was for-

tunate to be fostered by a loving Unitarian couple in South London. He was

educated at Colfe's Grammar Schoo! and the London Schoo!l of Economics.

where he read economics and sociology. Immediately after graduation, he was

recommended by Morris Ginsberg, the sociologist and philosopher, to Dr

(later Sir) Leon Radzinowicz, then seeking a research officer for the fledgling

and tiny Department of Criminal Science at Cambridge. McClintock remained

at Cambridge for 25 years, first in the Department and later (from 1960) as one

of the founding staff members of the new and much larger Institute of Crimi-

nology, the first major interdisciplinary department of criminology to be estab-

lished in a British university.

During this quarter-century, Derick McClintock led many important

projects of empirical research, despite (by modern standards) primitive data-

processing facilities. This research was in two main areas : first, the analysis of

crime patterns (including studies of sexual offences, violent crimes, robbery,

and an overview of all crime in England and Wales); and secondly, the evalua-

tion of treatment programmes for offenders (including studies of probation,

attendance centres and borstal training). The contribution of these meticulous

and dispassionately-conducted studies to the early development of criminol-

ogy in Britain was immense.

His Cambridge contribution was not limited to research. The advent of the

Institute meant a new role for McClintock as a teacher, à task in which he

excelled because of his clarity of mind and his empathy with his students; and

he was twice an able Acting Director of the Institute (1962-63 and 1972-73).

_ 9__

To his great pleasure, he was also elected a founding Fellow of Churchill Col-

lege in 1962.

In 1974 Derick McClintock moved to the newly created Chair of Crimi-

nology at Edinburgh University. By that time, as he noted in a 1975 paper,

there had been ’a change in the main criminological focus” with a growing

interest in ’the processes of criminal justice within the socio-legal system”.

Given his skills in empirical research and his always wide-ranging theoretical

interests, he was very well placed to give a lead to Edinburgh in this new con-

text. His solution was to persuade the University, in 1983, to juxtapose crimi-

nology and jurisprudence in a unique (and highly creative) Centre of

Criminology and the Social and Philosophical Study of Law, of which he was

twice the Director (1983-86, 1989-92). He was also elected Dean of the Fac-

ulty of Law (1982-85), and won widespread respect in both roles.

During his time at Edinburgh, McClintock was the author of a number of

papers setting out his now wider vision of criminology, but sadly the hoped-for

magnum opus in this genre never quite materialised. Farsightedly, however, he

recognised the growing importance of international (and especially European)

intellectual links, to a much greater extent than did most British criminologists

at the time; and he played a special role in representing Britain within the

International Society of Criminology. He received two well-merited interna-

tional honours : an honorary LL.D. from Uppsala University, Sweden, in 1974,

and the Sellin-Glueck Award in 1982 from the American Society of Criminol-

ogy

À catalogue of achievements risks obscuring the man beneath. So let it be

said that many, including myself, have benefited from his wise and caring

career advice; his genuine interest in the development of younger scholars was

very evident. Other personal memories that his death have brought to mind

include watching him interview borstal boys with a very real empathy, based

on his own disadvantaged background; and joining him and his wife, Franca,

on summer outings with their large and boisterous family. Derick McClintock

was, emphatically, not one of those social scientists who have forgotten how to

be human.

Anthony Bottoms

Frederick Hemming McClintock, born London

13 March

1926, died

Edinburgh 22 May 1994. Married 1959 Franca Tognazzi; four sons, three

daughters.

— 10 —

Theoretical and Research Topics in

International Criminology ‘

Closing Remarks on the Scientific Content of the 11" International

Congress on Criminology, Budapest, August 1993

Hans-Jürgen KERNER

President of the Scientific Commission

International Society for Criminology, Paris

Professor and Director, Institute of Criminology

University of Tübingen, Germany

INTRODUCTION

In his presidential address at the Closing Session of the 11th International

Congress on Criminology drew Albert J. Reiss Jr., the President of the I.S.C.,

attention to several major changes in our modern world, their consequences

for crime patterns in our societies, and the implications of each change for

penal policy and the control of crime. Under the headline of ‘“Crime and Jus-

tice in a Changing World” he concentrated his speech on the concept of actual

and threatening ‘“harms” to individuals and their collective welfare. His sub-

9 66

35 e

topics were “the control of harms

,

control of transnational harms

9

the lim-

its of national sovereignity”, and ‘“a search for alternatives to sovereign penal

justice”. By dealing with these problems he opened the participants' minds for

future policy implications of our criminological endeavours. His final sugges-

tion was “that we might turn to seeking a better understanding of how to build

compliance systems rather than upon perpetuating deterrence systems, and that

we do so without the necessity of punishment”’.

Besides the practical and policy implications of these stimulating schol-

arly thoughts, the I.S.C. as such was not efficially aiming to deliberate practi-

(1)

This 1s à shightly revised and adapted version of my presentation at the Closing Session

of the Congress on Friday, August 27, 1993.

— 11—

cal conclusions and policy-oriented recommendations. As a private association

of scholars and scholarly interested practitioners from all over the world it can

concentrate on the more analytic aspects of crime and crime control, and can

thus avoid the manyfold constraints more official bodies like the United

Nations or the Council of Europe are faced with when organizing international

meetings.

However, as President of the Scientific Commission of the I.S.C., | was

asked to prepare for the Executive a few substantive statements with regard to

preliminary scientific conclusions one could draw from an overview of the

Congress activities. These statements were to be presented in a way non-crimi-

nologists would be able to understand them. They will be dealt with in the fol-

lowing chapter. ! shall then concentrate upon the task the program has

challanged me with, 1.e. to provide the audience of the Congress Closing Ses-

sion With the scientific results of the 11th International Criminological Con-

gress. I would like to let aside the basic question whether or not a truly

scientific meeting should or even could get any firm results in the core sense of

the term. For practical reasons neither me nor anyone else would be in the

position to present ‘“the” results of a plethora of work that was being done dur-

ing an intensive week by more than eleven hundred participants in plenary ses-

sions, workshops, round tables, paper sessions, field isits, and other kinds of

(sometimes spontaneous) activities, in all about 300 “events” within and out-

side the Congress facilities. It would also be too daring and impossible to try to

fully summarize the papers that were given and the discussion remarks that

were exchanged during the different meetings. Several persons, however,

helped me in skipping through written materials, in looking at selected meet-

ings, in asking participants questions about significant Congress topics, and in

other endeavours; in particular [ wish to mention Eva Fôldesi and express my

thanks to her for her constant and creative support. Based upon the collected

notes | can suggest to follow an alternative way of handling the matter: in a

first step I will draw an analytical sketch of what the Congress participants

were dealing with in terms of focal concerns and more detailed topics of inter-

est. In a second step I shall ask then, very briefly, where the International

Criminological Congress is standing, in scholarly terms, in comparison to the

recent development of thinking about crime and crime control in other parts of

the scientific community.

STATEMENTS ON CRIME

AND CRIME CONTROL

Many papers and discussion remarks were explicitly dealing with the

actual crime situation in general in different regions of the world, with particu-

lar forms of crime threatening individuals or societies, and with the actual han-

dling of the crime problem, crime suspects, or convicted offenders. Neither is

it possible to summarize here the richness of arguments and insights nor to

harmonize the partly very different points of view as expressed by the speakers

and discussants. À few rather global as well as preliminary substantive state-

ments, however, may be allowed in order to depict the situation as it can be

characterized from a more liberal and distant point of view:

(1) Registered crime 1s increasing in many countries, particularly in coun-

tries in transition if not in turmoil like, for example, some of the Central and

East European States. Those developments, however, have the capacity of

deeply influencing also, by processes of repercussion, the situation in neigh-

bouring States, even remote ones, as one can see, for example, in Western

Europe.

(2) There 1s certain evidence that a substantial part of the rising official

crime rates, as shown by public and official data sources, is a consequence of

changes of the legal concepts of the structures of the different old systems fad-

ing away or breaking down. Further on they appear to be a consequence of

accordingly altered reporting manners and recording rules or procedures. So

far the responsible authorities are expected to tell the people (and the media)

how official figures on offenses and offenders can be interpreted and what

kinds of cautions have to be taken care of.

(3) Nota bene: An independent press is in the position to report freely of

more interesting ‘“social facts”, including criminal events, than a controlled

press. So in any State or societal system reducing former restrictions, the pub-

lic will be faced with “waves” of problems that are just waves of new ways of

getting people informed about already existing realities. Therefore the unease

and the concern arising among the population 1is, to a certain extent, a normal

consequence of changing structures of public opinion formation. À truly

informed public may hopefully get used to the new situation within a couple of

years.

If so there remains the problem of the sometimes inaccurate or sensation-

seeking type of crime reporting as it 1s liked by the so-called Yellow Press. In

the relevant congress meetings unanimous conclusions with respect to the

— 13—

causal influences of such reporting upon fear of crime and the enhancing of

law-and-order politics could still not be made.

(4) Even if we leave short-hand developments aside: national (and even

more international) crime statistics are, as a rule, still far from being reliable

and valid measurement instruments of the ‘“‘reality of crime” even when the

meaning of the term is restricted to only those events that come to the

knowledge of law enforcement authorities. Without further efforts to eliminate

recording gaps (data collection) and in refining the statistical categories (data

presentation) there will be only slow progress in allowing authorities (and the

public) a more precise and realistic assessment of the extent of the crime prob-

lem and domestic security. In several Congress workshops exchanged partic1-

pants who are working on these matters views on model statistics, and on

alternative measurement techniques like crime victimization surveys that will

hopefully help to improve considerably the situation in the near future.

(S) Fear of crime is - not only due to media influences - widespread

among substantial parts of the population in many countries of the present

world, and it has to be taken seriously by scientists, by practitioners on the

daily ‘““front of affairs”, and by policy-related authorities.

(6) The fear seems partly caused, as several scholars assume, by a deep-

seated anxiety about the immediately experienced and potentially long- range

general life consequences of the ongoing rapid social, economic and political

changes. So far it can hardly be altered by direct actions of the law enforce-

ment and criminal justice agencies.

(7) As far as fear of crime is based upon personal experience as a victim of

an offense (= direct victimization) or communication with significant others

about their relevant experience (= indirect victimization) people turn out to be

quite realistic. They generally do not expect the law enforcement and criminal

justice agencies to clear each case. They mostly do not want harsh punishment

of the offender(s). Further on they often do not need intensive assistance to

“solve” all their problems having led to or being caused by the criminal event.

They expect, however, the authorities to take note of the event, and to duly

acknowledge the impact of victimization, including giving consolidation or

advice if asked for. These kinds of reaction seem increasingly lacking in eve-

ryday law enforcement practice due to the sheer volume of cases agencies

have to deal with. Therefore seems the non-reaction or detached bureaucratic

reaction by the individual practitioner understandable. Structurally speaking,

such behavior leads, nevertheless, to an alienation between the normal popula-

tion and the institutions of control. People further like to receive restitution or

to get compensated for the damage caused by the victimization. Victim aid

— 14—

schemes are expected in cases of very severe crimes, where damage or injury

caused long-standing personal or interpersonal trouble.

(8) Fear of crime as a personal matter can and should, as recent studies

show, be well distinguished from ‘“‘concern about crime” among the popula-

tion. Even people who are not at all or at least not very fearful of becoming a

crime victim may well be concerned about the development of crime in their

neighbourhood, in the larger region or in the whole state or nation they are

belonging to. This feeling can be seen in different contexts of interpreting the

world and of the basic personal evaluation of the imminent dangers stemming

from the international situation. Further on it can be influenced by the status of

state, societal or economic affairs, the state of fundamental and commonly

shared values in the population, and of the ‘“human condition” as such. Given

those contextual determinants, the law enforcement and criminal justice sys-

tem have very limited possibilities to influence successfully people's attitudes

within a short period of time.

(9) Irrespective of those fundamental questions one should note, however,

that the actual concern about crime and its development seems, to a certain

extent, backed up by objective facts. The process of disintegration of the hith-

erto dominant world order, the civil wars, the (also otherwise determined)

huge migration movements, the cross-border moving of persons and the

increasingly less controlled (legal and illegal) trade of goods and commodities,

and the only partially planned/controllable processes of restructuring single

states respectively societies create an increasing amount of crime as well as

new forms of crime. National law enforcement and criminal justice systems

are not always well prepared to deal effectively and efficiently with such

developments, but people seem in these societies in general to assess this

situation quite correctly. In many cases (e.g. in Central and East Europe) the

authorities suffer from a lack of the essential material ressources. Police vehi-

cles, communication systems, and other equipment remain (sometimes by far)

behind the optimal modern standards. So far, the demand for quick

improvement of this situation is obviously justified. However, one should not

forget that concern about crime 1s also linked with people's trust in police (and,

to a lesser extent, with trust in the judiciary), and that this trust 1s fundamen-

tally hampered in so-called totalitarian states or authoritarian regimes. There-

fore technical improvement alone, without adequate investment in hiring

professional personnel (i.e. also democratic professionality) will hardly guar-

antee a lasting reform in former totalitarian states.

(10) À higher amount of more or less petty crime in everyday-life situa-

tions is considered by many criminologists as the “price” every modern society

has to pay for getting more freedom. Other criminologists point out that minor

— 15 —

crime may be the other side of the coin of wealth and affluence in (post)indu-

strial societies. The predominant 1f not pervasively “prescriptive” (mate-

rialistic and symbolic) cultural aims of these societies and the uneven

distribution of legitimate means among the different parts of the population

may be responsible for such a development. Relative deprivation might be felt

more sharply in generally rich countries rather than in generally poor societies.

It might be worthwile to include in further comparative analyses the obviously

high amount of pilfering in former socialist economies. The pilfering of ‘‘soci-

etal property” represented in state-owned or collectively owned firms, plants,

agro-economic estates and other structures might have been the equivalent of

what we consider pethy crimes in modern societies. More generally speaking,

it seems still wise to remember that societal norms structurally imply devi-

ance. Crime as a social fact depends on fundamental social phenomena and

developments as it was shown by one of the world's most famous sociological

criminological scientists already at the end of the 19th century, by Emile Dur-

kheim.

(11) To sum up: part of the present rise in crime figures is due to rapid

changes. This leaves hope for quasi automatically falling crime rates as soon

as state/political and socio-economic situations will (begin to) stabilize. How-

ever, the level of crime in formerly strictly controlled states/societies (as e.g. in

Europe the states east of the iron curtain) will remain considerably higher than

at any time before the social transition took place.

(12) However, a dramatic rise of severe crimes cannot be seen as inevita-

ble. For the time being 1s of high concern professional and organized crime. In

several workshops during the Congress it was stated that cross-border crime 1s

increasing. This type of crime deserves our special attention. So-called tran-

snational criminal activities are transgressing the traditionally known bounda-

ries of criminal groups, or endemic milieus, or socio-ethnic orientations as, for

example, in the case of the (old) Mafia. Politics, economics, and the sub-

terrannean sector are becoming more and more intertwined. Environmental

crimes, economic crimes, corporate crimes etc. are going to be perpetrated in

highly professional and organized manners.

(13) The detection and control of corruption seems worthwhile since cor-

rupt authorities and/or other institutions or persons of high position or esteem

contribute substantially to delegitimizing the means and institutions of the

State in the eyes of (major parts of) the population. Abiding to (penal) law,

accepting if not actively contributing to law enforcement procedures, and

trusting in the correctness and ‘“‘justice’’ of the criminal justice machinery: all

this depends on the relevant convictions shared by the general population.

— 16 —

(14) Privatization of social control, in particular of crime control, was also

dealt with in workshops during the Congress. Promises and dangers were dis-

cussed controversely. On the one side, proponents argue that crime control has

gone out of the control of state (police) forces, and that therefore citizens have

good reason and the right to help themselves. On the other side, opponents

point out the danger, that the rich and the powerful might create forces beyond

the reach of state power and beyond any worthwhile societal control. The bur-

den of crime 1s feared to fall upon the poorer parts of the population not yet or

no more capable to buy security.

(15) Apart from this debate recent research results presented at this Con-

gress confirm the already well-founded conclusion drawn by criminologists

that the traditional belief in (formal) law enactment and law enforcement as

shared particularly by many legally trained legislators, jurists/lawyers, and

policemen 1s causing unrealistic expectations. Given the complexity of mod-

ern socio-economic systems, and given the still expanding fragmentation of

institutions and modes of informal social control in late-industrial or already

post-industrial societies, acts or codes of penal law and their enforcement are

of limited value in preventing and combatting crime. Expanding the number or

the reach of substantive or procedural penal laws may eventually result in

nothing more than frustration due to the fact to overburden the control appara-

tus even more.

(16) Criminal policy never remains untouched by movements in general

policies. Unruly times encourage the call if not the collective demand for sim-

ple solutions to complex problems. So far Congress participants from a couple

of Western and Eastern states reported a rising public/publicized denounce-

ment of the law enforcement and criminal justice agencies for “mollycoddling

criminals”, and consequently a rising demand for new or at least harsher pen-

alties. No firm remedy was being offered in the relevant meetings, since the

situation in every single state may be different from any other state so far. In

general, however, Congress participants, based upon relevant empirical

research, pointed again at the danger of politicians/legislators' adoption of a

rigid policy against criminals per se. There seems still no sound scientific evi-

dence whatsoever available to back up the popular belief that harsh punish-

ment will deter (potential) criminals and will help to solve quickly the

problems of crime. Certainty of detection and velocity of reaction showed

comparatively better results. Further research 1s needed to clarify in a convin-

cing manner the extremely complex interdepencies in this field.

(17) More police, more penalties, more prisons etc., etc. as such are just

“more of the same” in the sense of traditional answers to the development of

crime. They will for sure not solve the crime problem. Those measures, 1f oth-

— 17 —

erwise necessary, e.g. by reason of modernizing the institutions, have to be

embedded in a broader concept of crime prevention and control. Making

intense use of societal mechanisms of informal dealing with problems, that

lead to offences or are the consequence of offences seem to be a more promi-

sing Way. In particular ‘“wars’”’ on crime that perceive their object as an outer

“enemy’” may be futile from the beginning. Participants analyzed the sentenc-

ing systems and the imprisonment policies in different parts of the world. The

United States served many discussants as the most peculiar example of a nega-

tive circle of crime, crime control practice, and public opinion about crime and

crime control. Considerable dissensus remained, nevertheless, about the direc-

tion of causal chains and about concrete ways out of the present misery.

(18) Participants repeatedly questioned the necessity of imprisonment as a

measure of effective crime control. At this Congress as well, critical scholars

argued in favour of at total abolition of the prison system. The rather main-

stream reformers presented in several workshops research results, giving fur-

ther evidence that at least a reduction in the imposition and execution of prison

sentences will work comparatively well, even in states that are already relying

to a considerable extent on other penalties. The empirically founded message

1s therefore: alternatives to prison sentences are possible without endangering

domestic security.

(19) Several workshops dealt with recent developments in restorative jus-

tice. This term pertains to several overlapping concepts such as mediation,

conflict resolution, victim-offender-reconciliation, restititution, and redress.

Growing acceptance of the idea can be detected in many countries. In every-

day law enforcement and criminal justice practice there 1s, however, still only

a very small fraction of cases dealt with in this way. Much debate 1s also still

going on whether restoration should primarily be conceived of as a substitute

to criminal proceedings, as a modern mode of informal dealing with offenders,

or as an additional criminal penalty to be used by the criminal justice system

when reacting formally to an alleged offense. Besides these and other theoreti-

cal and policy-oriented questions there were reports from different states

showing that any ‘‘model” used so far in practice had concrete beneficial

results. Large-scale experiences were presented from Austria where the new

Juvenile Justice Act of 1988 (coming into force 1989) had a remarkable impact

on the whole system of reacting to juvenile deliquency and crime. There was

unanimous agreement in the relevant workshops that further implementation

of reform programs, based on the various concepts of restorative justice, (or at

least experiments) should be encouraged.

(20) Victim-aid movements and schemes are already to a remarkable

extent implemented in a few (Western) countries. It was shown in several

— 18 —

workshops that they are basically useful in meeting the needs and rights of

crime victims. The national victim compensation laws or schemes based and

enacted for example on the model of the European Convention (Council of

Europe, Strasbourg) should be improved, and should include foreigners who

have become victims of violent offenses.

(21) Causes of crime, determinants of recidivism, ways out of criminal

careers, modes of offender treatment, and suitable structures of dealing effec-

tively with crime through state and/ or private organs (institutions or associa-

tions) need further in-depth research. The exchange of views of practitioners

and scholars, the sharing of experience and research results, the promulgation

of successful experiments or lasting models of crime prevention, and the

mutual understanding of theory and praxis should be disseminated and sup-

ported as far as possible by the responsible state bodies and other authorities.

TOPICAL ANALYSIS OF THE CONTENT

OF THE CONGRESS

The main theme of the Congress was “Socio-political Change and Crime -

A Challenge for the 21st Century”. Nevertheless, the pre-announcement, we

had disseminated all over the world, offered only à few topics explicitly to this

theme. Concerning the different other topics foreseen for the Morning Plenary

Sessions and the Afternoon Panel Sessions, the presenters were advised, and

the potential participants told, that those presentations should treat their object

in view of the general Congress theme. Until a few months before the begin-

ning of the Congress I feared that this main theme would become something

like an endangered species, for the proposed papers and workshops left it

uncertain whether the challenging topic would really be treated in a substantial

way. However, the situation improved eventually.

On the Congress site the speakers and discussants in the Morning Plenary

Sessions referred partially to the problems of change. One Afternoon Panel

Session was totally devoted to “Social Transition and Crime in Central and

Fastern Europe”. Questions of social transformation or social turmoil were

intensively dealt with in more than 10 Workshops. Several of these workshops

concentrated on the European scene, whereas in selected workshops special

emphasis was put on critical developments in Africa, Asia and Latin America.

Altogether 70 papers or otherwise elaborated contributions were explicitly

related to the general Congress theme. (For the sake of simplification I hence-

— 19 —_

forth will use the term “workshop” for the events even when they were in fact

round tables, paper sessions or ad-hoc meetings.)

In one of the keynote speeches it was asked why the Congress organizers

had decided to choose the term ‘‘socio-political change” instead of the term

“socio-economic change”. This is a good question, indeed. I cannot answer it

convincingly. The only circumstance I remember out of the many meetings

with different boards and small preparatory groups 1s that these terms were in

fact debated basically as well as the detailed wording of the Congress head-

line. Scholars in the mainstream tradition stressed above all the tensions

among (and, later on, the actual breakdown of) the real-socialist states. Prob-

lems were, to a certain extent, delineated by them in the context of a structural-

functionalist theory tradition that normally does not stress economic concerns.

À few also hoped that participants might use the fresh chance to discuss in

Budapest in one way or the other what the prospects of socialist or marxist

crime theories were in the light of differential experiences in this or in other

parts of the world. This hope was not fulfilled, though. No single workshop

was devoted to marxist theorizing. ! could not even make out a single paper

doing so explicitly or referring at least in part to a similar theory construction

or testing. Scholars in the critical criminology tradition stressed above all the

tensions among and between the so-called First, Second and Third World or

the future crisis along the line of the so-called North-South conflict. They see-

med to have structural aspects of power and domination in mind. They pointed

at problems of abuse of power in general and at concrete phenomena like

torture, corruption, and transnational corporate crime in particular. With regard

to conflict theories of deviance, they were no doubt implicitly dealing with

economics but saw no need of putting this on the forefront of their arguments.

In the present situation I personally guess that the socio-economic situa-

tion may be indeed pervasive as far as the European East-West transition sce-

nario is concerned. In former Yougoslavia and in other parts of the world,

however, I rather tend to discern an intricate mixture of economic, social,

historical, racial, ethnic, religious, and mentality-related influences which are

glooming like a dangerous old volcano awakening again after having been

dormant for years or even decades.

Other participants remarked that terms like economic breakdown, social

turmoil or socio-moral vacuum would be more suitable to denote the real situ-

ation, at least in certain countries. That point of view seems also fruitful for

further analytical endeavours.

We had a large workshop on forture. Ît was prepared by participants work-

ing specially on this topic and adhering in part to anti-torture movements.

— 20 —

Crimes against humanity (including torture) were dealt with in 5 workshops

with about 35 papers. In addition, 4 workshops and 18 papers dealt with

human rights issues and 15 papers, belonging to 5 workshops, treated prob-

lems of war crimes. This was acknowledged by many participants. However,

others made critical remarks about the Congress agenda as such. For large

audiences the Congress did not provide space for debates on plenary resolu-

tions with regard to the present situation in European and other countries in

forms of blatant oppression, (civil) war crimes, and other forms of cruelty or

brutality. It 1s true that the planning bodies either forgot the topic or may have

been consciously reluctant to put these topics at the front of the congress

agenda. There 1s always a rather clear division of opinions among scholars as

to whether they should raise their hands in a meeting or to express a clear pub-

lic statement in general political/policy affairs. The I[.S.C. was already several

times confronted with particular questions, the last time during the Hamburg

Congress in 1988, but the bodies could not (yet) come to an unanimous resolu-

tion about the line to follow. I personally admit to belong to the group of more

rather hesitant people in this respect.

Putting all political, policy and moral aspects aside for this moment I have

to recall to our consciousness that in the core field of scholarly criminology

there are already a few approaches suitable for in-depth analysis of relevant

issues. Let me point for example at Charles Tilly's provocative formulation of

“state making as organized crime”. I would also like to mention Herbert

Jäger's attempts to restructure our understanding of genocide, state- deter-

mined crimes against humanity, crimes of the powerful etc. by introducing the

concept of ‘“macro crime”.

In turning to the more traditional fields of criminologists interests or

research I looked in the first place for events and contributions about to the

containment of crime or - as officials and practitionners would perhaps prefer

to say - the combatting of crime 1f not the “war on crime”. The personalized

equivalent of those orientations would be the control of criminal behavior

through informal and formal mechanisms.

The dominant catchwords are institutions of (formal) crime control and

reactions, particularly sanctions by the law enforcement and criminal justice

agencies.

The screening of Congress events and papers showed quite neatly that the

classical ‘cornerstones” of formal social control of crime and criminals, 1.e

the police on the one side and the prison system on the other side, still domi-

nate the presentations at the Congress.

The police was dealt with in 12 workshops and about 80 papers. The

prison (be it as a system or be it in particular aspects) was the subject of 11

workshops with about 50 papers. However, the presentations in substance

showed to a large extent a deviation from the traditional descriptive and

affirmative orientation or style of ‘“corrective” thinking. Most extensively,

community policing was being discussed. Several papers debated also the lim-

its of (either traditional or modern) policing and the determinants of the rising

amount and types of private security business or private policing institutions.

Other contributions problematized the still existing military type of police

training and leadership in different countries, and stressed the need for profes-

sionalisation in terms of formal (also academic) qualification and substantive

education and training in managerial (also team-oriented) skills. Concerning

prison matters, the issue of prisoners’ rights was very dominant in the debates.

Criminologists were always, and many of them still are, pre-occupied

with suitable ways of developing and administering separate systems of assist-

ance to and control of children respectively juveniles called delinquent,

endangered, in need of care, in need of service or otherwise depending on

disciplinary orientation and traditions in the national child care philosophy or

practice. Therefore it is not surprising to learn by our analysis that the topic of

juvenile justice (juvenile control, juvenile welfare, juvenile courts) was dealt

within 4 large workshops and about 30 papers. However, critics of the ‘“‘refor-

mist” juvenile welfare approach had more influence than ever before in Inter-

national Criminology Congresses. Pitfalls and shortcom- ings were analyzed

in detail and limits of reform acts/codes were deline-ated. Further on it was

emphasized that not only the judicial approach, but also socio-pedagogical or

psychotherapeutic approaches may be hampered. They are either hampered

due to false conceptualization or at least in concrete cases in which the con-

cepts are acceptable through not anticipated consequences or side effects. Às

part of the larger field, particularly diversion projects in criminal justice sys-

tems guided by the opportunity principle (as e.g. the United States) were being

compared with systems bound to the legality principle (as e.g. Austria and

Germany). The so-called net-widening effect of diversion programs could not

always be detected in more recent developments. The general climate of the

discussion, however, was more often than not in favour of Leslie T. Wilkins'

famous statement made already in the late 60ies. He argues that perhaps most

often the best the state and/or societal groups could do in dealing effectively

with deviance of minors might be said in a four letter word: “less

’9!

Even 1f we take the message of this statement serious, as we should do,

crime and delinquency prevention 1s by far not at odds in present day societies.

About 40 papers in more than 10 workshops provided ample evidence. Many

presentations followed the line which was developed in recent years by schol-

__ 22 —_

ars from different countries, and by practitionners paying more than just lip-

service to the prevention principle. The argument goes that effectice crime pre-

vention is to be considered as a highly complex affair principally transgressing

the crime field as such. It needs a lot of integrated efforts on community or

regional levels. Keywords of the discussion were for example: community

crime prevention, crime prevention councils, and integrated cross-organiza-

tional policy plans.

The adult criminal justice system was comparatively less densely dealt

with. Prosecution, criminal courts, and penal procedure taken together were

discussed in 3 workshops with approximately 15 papers. Structural aspects of

the criminal justice system as such were explicitly mentioned in 5 workshops

with about 21 papers.

When we look at the problems of reactions, respectively of sanctions to

delinquency and criminality, we learn that [.S.C.-Congresses are holding pace

with the ongoing international research issues and reform debates. We find 17

workshops with about 75 papers on alternatives to imprisonment (others than

classical probation and parole), alternative sanctions, sentencing guidelines,

structural sentencing, mediation, victim-offender-reconciliation, and restora-

tive justice as a guiding general concept. Several of these presentations show

convincingly that traditional sanctions (in particular those with deprivation of

liberty) can be reduced by far more than it was believed a decade ago, without

endangering the public security. And it was pointed out in other presentations

that the normal population 1s less punitively oriented than many policy makers

and practitionners (above all: lawyers) are prepared to believe. The basis of

this 1s that one people asks about their preferred reaction in concrete explicated

cases compared to the otherwise rather global crime-oriented questions in pub-

lic-opinion polls.

Let us turn now to the field of delinquent or criminal behavior, including

crime-prone structures and organizations. Here the classical offense types still

get continuous attention as 1t 1s aptly demonstrated by the many papers to top-

ics like child delinquency, juvenile deliquency, sexual crimes, and traffic cri-

mes (31 workshops with about 110 papers). In the long range, however, one

can detect a significant turn in our I.S.C. Congresses' orientation towards so-

called modern crimes and towards re-actualized fields of offenses that might

have long traces back in former centuries. Besides more than 50 papers on

drug and alcohol use/dependence/crime we can find nearly 50 papers on fam-

ily violence and child abuse, and about 60 papers on issues like governmental

corruption, other forms of corruption, economic and corporate crime, and

White collar crime.

_— 23 —

The present world situation is characterized, inter alia, by increasingly

open borders between countries, thus becoming more permeable. Police forces

and other agencies of control are therefore highly concerned about the obvious

danger that this development might also attract people and organizations with

criminal aims or at least intentions. Congress participants showed equal scho-

larly interest in those issues. Out of about 90 papers on the global topic of

organized crime more than 50 concentrated upon international or transna-

tional aspects. Relevant keywords were for example: transnational corporate

crime, transnational economic crime, international environmental pollution,

and cross-border crime in Europe and elsewhere. As a nota bene ! would like

to add that environmental problems did not attract much attention at this Con-

gress, notwithstanding their explicit mentioning in the official pre-announ-

cement booklet. Eventually 2 workshops (each with 4 papers) were dealing

with environmental crime and control, one was concentrating upon national

aspects and one on international questions.

Let us turn to the field of offender personality and offender treatment,

including questions of mental illness, psychopathy, determination of mens rea

and other forensic expert knowledge. Issues of this type were being the

decisively characteristic for the I.S.C. during the first decades of its existence.

They represented well the continental European tradition in criminology,

based upon the so-called two pillars of law and medicine (psychiatry). Also at

this congress a still remarkable amount of scholarly work and expertise was

devoted to such person-oriented microcriminological work. More than 150

papers were presented in more than 40 workshops. As compared to former

Congresses (excepted Hamburg), however, the relative weight of personality

assessment and treatment diminished. Nowadays many clinical experts are, in

addition, fully aware of the theoretical and methodological intricacies of the

so-called medical model in understanding and treating “criminality”.

During its founding years (1938 et seg.) this society was clearly domi-

nated by biological approaches in explaining and handling delinquency and

criminality. Therefore it may come as a surprise for some to learn that only 3

papers were explicitly pointing at the recently revitalized debate on biological

or biopsychological or neuropsychological factors in crime causation. But this

may be a result of the main Congress theme and might have led to the fact that

scholars engaged in such research abstained deliberately.

In the field of theory, methodology and (measurement) methods we made

in my opinion remarkable progress. This time about 260 papers and presenta-

tions were presented in about 55 workshops. However, the topics were not

evenly distributed.

__ 24 —

Criminal statistics and methods of improving them attracted much

consideration on both, the national and the international level (5 workshops

with about 30 papers). Alternative methods of measuring crime were also

extensively discussed, above all victimization studies (4 workshops with 22

papers) and offender self-report studies (3 workshops with about 15 papers).

Here U.N. Institutes helped us with remarkable effort and success. The first

self-report instruments administered in the late 401es and unti! the 701es were

‘“’dark number” or “dark field”-oriented, 1.e. sticking more or less to the con-

cept of getting better knowledge about the ‘’real amount’” of crime in society.

Additionally, the reasons for non-reporting or the motives for reporting

were being asked. Modern instruments as presented during this Congress are

being conceptually refined and (sometimes already primarily) pertain to a lot

of other interesting issues like attitudes towards agencies, attitudes towards

sanctions, fear of crime, risk assessment, measures taken for precaution, and

coping capacities or strategies versus the amount of help and advice felt neces-

sary either in one's own case or rather generally.

Urban crime in its different theoretical and empirical contexts was also

rather extensively discussed during the Congress (6 workshops with 35

papers). Only victimology issues (apart from the already named victimization

surveys) gained similar attendance (5 workshops with more than 35 papers).

AI other theoretical or at least theoretically influencend issues remained

clearly on a lower quantitative level.

THE LS.C. IN VIEW

OF MODERN CRIMINOLOGY

One cannot try to evaluate in the strict sense of the term what the results

of this short analysis signify for the place of the International Criminological

Congresses and the position of the I.S.C. in the context of the most recent

developments in criminological scholarship. Therefore I will only sum up my

personal opinion in the following few statements.

The I.S.C.-Congresses are surely not modernistic, 1.e. mainly oriented

towards the “latest fashion” in theories, methods or (partial) subject matters in

its diversified field relating to humanities and sciences. But the Congresses

became more modern in the sense that gradually more disciplines as only law,

medicine and clinically oriented psychology were included in the agenda and

given the chance or even equal opportunity to express their particular approach

— 25 —_

and to demonstrate genuine research results. Social sciences are by now more

welcome than ever before. Besides the otherwise traditional sociological or

socio-psychological theories on delinquency and crime one can detect contri-

butions pertaining to the fields of socio-history, systems analysis, econometric

analysis, critical legal studies, or feminism, to name but a few.

The I.S.C.-Congresses are providing now a broader platform than ever

before and allow an emotionally relaxed but substantially intense cross-

disciplinary exchange of positions, views, experiences, and empirically gained

re-search knowledge.

However, there are still shortcomings that deserve further consideration

and serious attention. If criminology is meant to be more than a loose label for

a plethora of conceptually unrelated scholarly endeavours dealing one or the

other way with ‘““deviance” or ‘““crime”, then we need more theoretically

demanding basic contributions on the core content and the delineation of gen-

uine subject matters.

Cross-societal and cross-cultural analyses are still being underdeveloped.

There 1s not only a lack of studies that are suffiently equipped to really allow

an in-depth and detailed comparative look at similar phenomena in different

states, regions or parts of the world. There 1s also still much room for concep-

tual improvement of the “‘terttum comparationis”. In other words: Phenomena

that seem to be “the same” at the surface may actually be spurious epi-phe-

nomena, i.e. determined by totally divergent context or background factors

depending on different economic, cultural and other sources, respectively

traditions and vice versa. Às it was discussed years ago in the field of compar-

ative law, one has to transcend the phenomena in order to get firm ground in

more general structures or problem-producing constellations.

The ongoing debate on the necessity of longitudinal vs. cross-sectional

approaches in the study of delinquency and crime remained up to now mainly

an U.S.-affair. Since its implications are highly relevant for the further devel-

opment of theories of crime causation and control (far beyond the most obvi-

ous issue of the age-crime-curve) the international scholarly community

should find it worthwhile to enter more openly the discussion. Since already

numerous longitudinal studies have been made and actually are going on in

different countries, more intense international exchange of experiences and ot

the results of such studies should be encouraged.

Prevention models or experiments also deserve improved international

dissemination in terms of concepts and efficient implementation procedures,

not to forget a better scrutiny of the results, also with regard to their “trans-

__ 26 —

ferability”, 1.e. their relevance in perhaps basically otherwise organized states,

societies or cultures and mentalities.

Last but not least: The I.S.C.-Congresses traditionally attract many practi-

tioners and à relatively high percentage of scholars with either practice-

oriented or policy-oriented inclinations. This frequently leads to demands for

“’practical” answers 1f not for recipes in order to get the urgent and more or less

imminent problems solved. Such concern 1s surely legitimate. During the last

few Congresses, however, the larger attendance by other “types” of scholars

either more interested in basic theories or being more fundamentally critical

towards control agencies and approaches made 1t quite clear that many seem-

inglv “obvious” problems in crime causation and crime control are more intri-

cate than hitherto conceived of. That means: The I.S.C. comes nearer to the old

wisdom in ’hard” (natural) sciences that it 1s often more promising to try again

and again to detect the right questions instead of looking immediately for

answers to problems. So eventually, if the chances of integrating the perspec-

tives will be actively used in the future, the common work of people engaged

either in practice or in theory might bring out more fruitful results for our dis-

cipline than an isolated ‘’pure” orientation.

CONGRESS STATISTICS

In order to add some additional quantitative information to the oral

presentation | tried to categorize the scholarly content of “ideas”, “concepts”

and ‘’results” that participants introduced in the working schedule of the 11th

International Congress on Criminology. I included all activities whether per-

formed at the central Congress site (EFEDOSZ Congress Centre near the Mil-

lenium monument of Hungary in Budapest) or at the second Congress site

(Eôtvôs-Loränd University in the city center of Budapest) or at other places

which were mainly organized by the Hungarian Society of Criminology.

The first unit of counting and classifying was any “event” during the Con-

gress, thus including the Morning Plenary Sessions, the Afternoon Plenary or

Panel Sessions, the fully pre-organized Workshops with invited papers and

comments, the other Workshops as grouped along announced papers and

communications. the Round-Tables, the Paper-Sessions, the Free Communica-

tions, the Practitioners' Meetings, and the Field Visits.

The second unit of counting and classifying was any “presentation”

belonging to an “event”, thus including officially invited Keynote-Speaches,

— ”

7 —

officially invited Discussant-Speaches, invited Papers, invited Discussant-

Comments, prepared Papers, prepared Statements, and previously unan-

nounced communications that were presented on the spot after notification of

the Congress Bureau.

Ât least two cautionary remarks seem indispensable.

On the one side we simplified the classification procedure. Every “‘event”

and every “presentation”’ was only counted and classified once. That means: If

several topics or sub-topics were obviously or seemingly touched by the con-

crete unit we decided to select the “leading”’ or the ‘“most appropriate” one. To

give a rather clear example: À paper on ‘““Mediation in Rape Cases” may

belong to the topic “Crime Types”, to the topic “Victim Aid”, and to the topic

“Restorative Justice”, as well. If it was actually selected by the organizers of

one Workshop on ‘Restorative Justice” or a similar Workshop on “Victim-

Offender-Reconciliation” to be presented there, we decided to classify it as

belonging to the larger topic of “Restorative Justice/Mediation etc.”. Value-

decisions were therefore unavoidable. Some papers showed precise headlines

and sub-titles and some papers had clearly elaborated abstracts. In those cases

one would have been principally in the position to administer a system of mul-

tiple classification. In a large number of other cases, however, one would have

been forced to either read the whole text of the paper, or to be present at the

event itself, and to listen to the presentation, in order to make a final decision.

The later procedure was evidently out of the Congress bureau's capacity. To

classify only the minor part of the presentations with the help of a multiple

system would eventually distort the picture up to an unacceptable degree.

On the other side we decided to include all presentations as they were

finally announced, except those cases where the Congress Bureau was

explicitly notified of a ‘“no-show” incident. It was impossible to track in detail

all changes that happened during the Congress week. For the sake of the

present analysis the possible lack of exactness regarding the “true” or ““real”

content of Congress work seems to be acceptable. Even if a paper was in fact

not presented as such, the participant could have been an active member of an

workshop and contribute just orally to the discussion. Even 1f e.g. a participant

did not show up as announced, his paper could have been included within the

presentation of another participant. We do know in fact of those and other cre-

ative solutions.

This analysis contains the ‘“space of thinking” of criminologists from

about 55 different countries coming together at a given time in a given histori-

6

cal situation. When comparing this particular

set” with other sets of

criminological meetings it might well be worthwhile to include also ideas etc.

__ 28 —_

that had been originally developed for the event but could, due to the one or

the other reason, eventually not (fully) realized on the spot.

The last I.S.C.-Congress was the 1Oth International Congress on Crimi-

nology. It was held in Hamburg in August 1988, in co-operation with a local

organizing committee composed of mainly social science oriented criminolo-

gists. It is worthwhile to note that the Hamburg Congress assembled more than

750 full participants from about 45 different countries. This Congress had the

main theme ‘’Perspectives in Criminology: Challenges of Crime, and Strate-

gies of Action”. It marked, after the Vienna Congress of 1983, a further step in

the development of the International Society for Criminology towards a real

world wide active association, including more disciplines than the classical

European ones. It was deliberatly planned as a Congress where different theo-

retical and methodological orientations should equally contribute to the dis-

cussions and deliberations. It was, in addition, conceived of as a Congress that

should provide ample opportunity for social science scholars to present ideas

and research results with regard to the institutions of social control, and

regarding the (non-) influence of reactions or sanctions upon the development

of deviant identities or careers.

In organizational terms was the Hamburg Congress a mixture of the tradi-

tional ‘“European Congress Scheme” stressing the large audiences and relying

on rather expanded complex workshops, and of the “American Congress

Model”, stressing the small and rather specified small workshops or paper ses-

sions. The Budapest Congress moved more in the direction of the American

Model (as it was already accepted for a couple of years by other European

scholarly associations as for example physicians, psychologists, and also by

the International Sociological Association including its Research Committe 29

on ‘“Deviance and Social Control”).

The world's largest and scholarly most active national criminological

association is the American Society of Criminology. The ASC membership 1s

basically of U.S. descent but, nevertheless, contains many scholars from other

countries or continents. It assembles up to 1.500 if not more participants on it's

Annual Meetings in different American cities. Nearly all modern strains of

criminology are regularly being presented at ASC-Congresses. This holds true

for theory, methodology, and substantial subject matters. So it seemed mind-

provoking to scrutinize, in a cross-sectional approach, also one of those ASC

Annual Meetings. It was decided to select the New Orleans meetings of

November 1992 and which was the most recent one to be compared with the

Budapest Congress.

__ 29 __

The condensed result of the comparative counting and classifying 1s

shown in the following six tables. Zahle ! represents the ‘’Event”-oriented

distribution of globally defined respectively ‘“general topics” criminologists

are usually dealing or confronted with in their scholarly endeavours or in their

practical tasks of law enforcement, administration of criminal justice, preven-

tion, treatment, or correctional work. The above-mentioned particularities of

orientation and organization come out quite neatly. The Budapest Congress

Was prepared - inter alia - by an international dissemination of a broschure

(with the preliminary announcement and a call for papers) that explicitly indi-

cated a lot of additional sub-topics not being strictly related to the main Con-

gress theme. Publicity reached many organizations and individuals that up to

now were not inclined, or at least not used, to join I.S.C. meetings. Due to this

approach the Budapest Congress, as compared to the Hamburg Congress,

assembled also more participants from the classical fields of criminology than

did ever before I.S.C.-Congresses. Therefore were the percentage of work

related to phenomenology of crime and criminal behavior, and the percentage

of interest in questions like offender types, personality, exculpation, and treat-

ment higher than one would have anticipated when considering only the Main

Congress Theme. The structural picture remains basically the same if we look

at table 2 that represents the ‘“Presentations”-oriented distribution of general

topics.

Since the results of our coding and classification procedure came out to be

very similar in nearly all aspects of “Events” and ‘‘Presentations’”’ we decided

with regard to the space available for this article, to produce here only those

tables that concentrate on the “Presentation” side of the affair. Tables three to

six are a condensed version of the raw results in that they depict the most rele-

vant 45 clusters out of 93 classification categories we originally used in the

screening of the material.

Table 3 contains 7 clusters on theories, and only 3 clusters on methodol-

ogy. In order to avoid misunderstandings: The ‘“zero-results” for Hamburg do

not mean that none of the presentations there were covering aspects of ecol-

ogy, geography of crime, urban crime, and/or was dealing with different

methodological aspects. The meaning of the table 1s only that many papers etc.

showed a “leading headline” stressing other aspects definitely or at least a bit

more than this particular one. So eventually those papers quasi automatically

moved (so to speak) to other fields. They mainly strengthen the dominance of

theory-orientation that was being characteristic for the Hamburg Congress in

general. The remaining “pure” methodological papers did not accumulate to a

statistically remarkable result in terms of percentage points. The rather con-

stant ASC orientation on (complex) theories, on social science topics, and on

— 30 —

distinct methodological details can be clearly seen in table 3 with regard to the

meetings in New Orleans.

Table 4 contains 6 clusters on the (main) institutions of crime and delin-

quency control, 3 clusters on alternative ways and means of dealing with

offences and/or offenders, and 3 clusters on related matters. Às one can see.,

police matters are a rather common preoccupation of all three Congresses.

Sentencing was a preferred topic in Hamburg. The U.S. and the Budapest

international community were more occupied with prison matters than was

Hamburg, seemingly reflecting the ‘’bias” of the American system towards

imprisonment, and the fact that in Budapest many participants came from

countries where deprivation of liberty 1s still being the dominant penalty not-

withstanding of beginning structural reforms. It may also be interesting to note

the rather ‘“thin’”’ percentage that matters of alternative reactions were accumu-

lated at the meetings in New Orleans. À particular orientation on Human

Rights and Minority Rights was part of the planning of the Budapest Congress,

adapting the agenda at least in part to the United Nations Crime Prevention

and Criminal Justice Branches working schedule.

Table 5 contains 16 clusters on crime types or offender groups or patterns

of criminal/delinquent behavior. Unfortunately the sub-topic of criminal career

(research), that was definitely dealt with at all three Congresses, 1s being hid-

den behind the other clusters due to the classification method. Besides that,

table 5 clearly demonstrates that ‘“drugs” are being a constant matter of recent

criminological thinking and research work. The percentage of white collar

crime, child delinquency, juvenile delinquency are also rather evenly distrib-

uted. The percentage of family violence and child (sexual) abuse as repre-

sented in Budapest indicates the fact that the American debate has now

reached the other countries to an already remarkable extent. Not surprising,

with regard to the amount of real-world problems, are the rather high percen-

tage-points that such topics as violence in general and gang crimes gained in

New Orleans. Another result seems remarkable in terms of equal representa-

tion of the different strains of criminological basic orientations. Feminist

scholars were getting in some conflict with the Budapest Congress organizers

between the second and final international Congress announcements. There

were a lot of efforts to settle the affairwhich need not to be discussed here in

detail. It is interesting to note that female crime (see table 5 on the bottom) as a

main sub-topic of papers was hardly better represented as feminism as such

(see table 3).

Table 6 has to be looked at with special care. It contains 5 clusters on

treatment matters, and two other clusters only loosely connected with each

other, i.e. genetics and problems of forensic expertise, respectively expert

— 31—

knowledge on insanity or exculpation. Apart from peculiarities of the classi-

fication scheme as such that might have ended here in too much a simplifica-

tion of the matter one should, again, be well aware that ‘’zero-results’

represent just percentage-points below ‘“.5”; single or small groups of papers

on the omitted topics could well have been presented at the Hamburg and New

Orleans Congresses. In Hamburg the small absolute number 1s nevertheless,

taken all considerations together, just another epihehomenon of the deliberate

planning and of the explicit calling for papers. In New Orleans the American

drug crises seems to have been aptly represented. In Budapest the larger range

of pre-occupation of international criminologists with different treatment mat-

ters was already clear from the results as depicted in tables | and 2.

Table !

“EVENTS” * AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF GENERAL TOPICS

ISC b)

ASC “))

ISC

New Orleans

Hamburg

Budapest

General Topic

1988

1992

1993

Theory/Methodology

43,6 %

29,2 %

17,9 %

Reactions/Institutions

36,4 %

38,8 %

29,3 %

Crime Types/

Criminal Behavior

16,4 %

28,6 %

36,4 %

Treatment of Offenders/

Expert Knowledge

3,6 %

3,3 %

13,0 %

Total Events (N)

55

363

307 *

a

Plenary Sessions, Panel Sessions, Workshops, Round-Tables, Paper Sessions,

Field Visits with Reports etc.

International Society for Criminology (Paris, France): 10th International Con-

gress on Criminology, Hamburg, FRG, September 1988

American Society of Criminology (Columbus, Ohio, USA): 1992 Annual Mee-

ting, New Orleans, LA, November 1992

International Society for Criminology (Paris, France): 11th International Con-

gress on Criminology, Budapest, Hungary, August 1993

10 Events could not be classified.

— 32—

Table 2

"PRESENTATIONS” “ AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF GENERAL TOPICS

ISC

ASC

ISC

Hamburg

New Orleans

Budapest

General Topic

1988

1992

1993

Theory/Methodology

39,6 %

29,9 %

19,4 %

Reactions/Institutions

37,6 %

40,1 %

33,9 %

Crime Types/

19,8 %

26,6 %

33,9 %

Criminal Behavior

Treatment of Offenders/

Expert Knowledge

3,0 %

3,4 %

11,6 %

Total Presentations (N)

203

1380

1.359

à

Key-Notes, Commentaries, Papers, Prepared Statements, Discussants" Com-

ments

Table 3

PRESENTATIONS AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF SPECIAL TOPICS

ON "THEORY/METHODOLOGY”

ISC

ASC

ISC

Hamburg

New Orleans

Budapest

Special Topic

1988

1992

1993

Criminological Theories

in General / Comparative

34,1 %

28,1 %

6,4 %

Aspects

Crime and Sociopolitical

Change / Development

42 %

3,9 %

15,1 %

Focus on Sociology,

Social-Psychology

30,8 %

16,7 %

3,0 %

Focus on Psychiatry,

Psychology.

Psychoanalysis

0,8 %

1,0 %

0,2 %

— 33—

Table 3 (Suite)

PRESENTATIONS AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF SPECIAL TOPICS

ON “THEORY/METHODOLOGY”

Focus on Ecology,

Crime Geography,

Urban Crime

T,5 %

9,2 %

Focus on Victimology

20,0 %

9,2 %

9,6 %

Focus on Feminism

10,0 %

3,5 %

0.4 %

Methodological

Problems inGeneral

15,3 %

4,9 %

Criminal Statistics

6,1 %

6,8 %

Self-Reported

Delinquency /

Victim Surveys

3,6 %

7,7 %

120

412

469

Total (N)

Table 4

PRESENTATIONS AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF SPECIAL TOPICS

ON “INSTITUTIONS / REACTIONS”

ISC

ASC

ISC

New Orleans

Hamburg

Budapest

Special Topic

1988

1992

1993

Police / Policing /

Community Policing /

Administrative Agencies /

Private Security

19,2 %

21,5 %

19,1 %

Juvenile Justice /

Juvenile Welfare

5,3 %

11,0 %

6,6 %

Criminal Justice /

Prosecution / Courts

5,3 %

17,3 %

10,9 %

Sentencing etc.

24,6 %

9,6 %

T,7 %

__ 34 —

Table 4 (Suite)

PRESENTATIONS AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF SPECIAL TOPICS

ON "INSTITUTIONS / REACTIONS”

Prison Systems /

Structures / Special Types

3.8 %

14,6 %

13,9 %

Probation

and Parole Services

3,1 %

2,7 %

Alternatives

to Imprisonment/

Alternative Sanctions

13,2 %

2,3 %

6,2 %

Restorative Justice /

Mediation etc.

7,9 %

0,5 %

5,0 %

Victim Aid /

2,6 %

0,9 %

3,4 %

Victim Compensation

Criminal Policy /

9,6 %

6,3 %

11,2 %

Legislation

Prevention / Mass Media

11,0 %

8,2 %

Human Rights /

Minority Problems

6,4 %

Total (N)

114

554

439

Table 5

PRESENTATIONS AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF SPECIAL TOPICS

ON "CRIME TYPES/CRIMINAL BEHAVIOR”

ISC

ASC

ISC

Hamburg

New Orleans

Budapest

Special Topic

1988

1992

1993

War Crimes / Crimes Against

Humanity / Torture

11,3 %

Governmental Crime / Crimes

of the Powerful / Political

Oppression / Corruption

18,3 %

11

9,1 %

__ 35 —

Table 5 (Suite)

PRESENTATIONS AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF SPECIAL TOPICS

ON “CRIME TYPES/CRIMINAL BEHAVIOR”

Transnational Corporate

Crime, Transnational

Economic Crime /

International Pollution

6,0 %

International Cross Border

Crime/ International

Organized Crime

5,1 %

International + National

Terrorism

6,7 %

1,1 %

2,4 %

10,0 %

T,1 %

5,3 %

Organized Crime,

Mafia Type

White Collar Crime /

Traffic Crime / Pollution /

Economic Crime

15,0 %

9,0 %

3,0 %

Alcohol and Drug Crimes

15,0 %

18,3 %

10,0 %

,

_

1,8 %

Property-Crime / Vandalism

Fraud / Gambling

_—

,

=

3,3 %

Sexual Crimes / Rape

3,0 %

8,6 %

Violence in General /

Homicide / Suicide

6,7 %

12,3 %

3,5 %

0,7 %

Gang Crimes / Gang Violence

10,4 %

Family Violence /

Child Abuse

11,7 %

10,4 %

Child and Juvenile

Delinquency

16,7 %

9,8 %

14,0 %

Female Crime

11,7 %

10,1 %

1,3 %

Total (N)

60

367

451

— 36 —

Table 6

PRESENTATIONS AT CRIMINOLOGY CONGRESSES

DISTRIBUTION OF SPECIAL TOPICS

ON "TREATMENT OF OFFENDERS / EXPERT KNOWLEDGE"”

ISC

ASC

ISC

Hamburg

New Orleans

Budapest

Special Topic

1988

1992

1993

Drug Treatment /

Alcohol Treatment

78,7 %

16,9 %

Treatment in Prisons /

Offender Clinics /

Therapeutic Institutions /

Compulsory Treatment

33,7 %

21,3 %

41,3 %

Treatment of Mentally II /

Pharmacotherapy

20,9 %

Treatment of Sexual

Offenders

4,1 %

Treatment of Violent

Offenders

0,6 %

Genetical Questions

1,7 %

Forensic Expertise /

Insanity Defense /

Mens Rea etc.

66,6 %

14,5 %

Total (N)

47

172

— 37:—

RESUME

Dans ses conclusions relatives au contenu scientifique du lle congrès

international de criminologie, le président de la commission scientifique de la

Société internationale de criminologie dresse un tableau analytique des zones

d'intérêt et des thèmes traités par les participants. Il tente ensuite de situer le

11Ë congrès par rapport aux mouvements qui peuvent être discernés dans le

développement international de la criminologie.

SUMMARY

In these closing remarks on the scientific content of the 1 1th International

Congress on Criminology, the president of the Scientific Commission of the

international society for criminology first draws an analytical sketch of what

the congress participants were dealing with in terms of focal concerns and

more detailed topics of interest. In a second step, he asks where the congress 1s

standing, in scholarly terms, in comparison to the recent development of think-

ing about crime and crime control in other parts of the scientific community.

RESUMEN

En sus conclusiones relativas al contenido cientifico del décimoprimer

congreso internacional de criminologia, el presidente de la comision cientifica

de la sociedad internacional de criminologifa expone un cuadro analftico de los

polos de interés y de los temas tratados por los participantes. Intenta enseguida

situar el undécimo congreso respecto de los movimientos que pueden obser-

varse en el desarrollo internacional de la criminologia.

__38 —

Conflicts and Convergences

of Theoretical and Methodological

Perspectives in Criminology ‘

Fritz SACK,

University of Hamburg

INTRODUCTION

It means carrying owls to Athens to call to memory of the precarious and

vulnerable status criminology has been exposed to during all its existence. Its

claim to be an ordinary and respected member of the family of scientific disci-

plines has been contested again and again and continues so to the present. This

is true against all indicators that point to the contrary. To doubt, however, the

existence of criminology in view of a congress like this here in beautiful Buda-

pest is hazardous, if only in the sense that congresses and 1ts participants do

not mean to organise or participate in an obituary or a self-denial but have the

function of enhancing their self-respect, strengthening and reinforcing their

identity and ensuring their survival and their future.

I will, therefore, choose à more benevolent view of criticism of the state

of the discipline. Criminology does not lend itself to a handy and neat defini-

tion and description of its profile. It seems to me hardly possible and still less

reasonable to talk and discuss about criminology any longer in the singular

mode. To use a concept that has not yet gained much familiarity in cri-

minology, there exist several criminological discourses in our discipline.

(1)

This 1s a shightly changed and edited version of à paper I gave at the 11th International

Congress on Criminology in Budapest, Aug. 22 - 27, 1993. Special thanks for helping me to

transform my text into a linguistically more correct and readable English and to avoid some

inconclusive arguments | owe to Tony Jefferson from the University of Sheffield. Of course.

[ assume full responsibility for what still invites to criticism in this article which certainly 1s

partly due to my reluctance to follow all his proposals for change and correction.

__ 39 —

I prefer the concept of ‘“discourse’’ which I take, of course, from Michel

Foucault to that of ‘“perspective” which is used in the programme announ-

cement of my talk. The underlying sense of ‘‘perspective” 1s based on a spe-

cific understanding that I would like rather to challenge than to share. Talking

about different perspectives implies an epistemological orientation that

assumes the identity and the ‘“‘reality” of the object of crime that can be treated

and analyzed from different perspectives while retaining its true, real and

unchangeable essence. Precisely this assumption seems to me at issue in

criminology and deserves being admitted for discussion not on the margins of

the discipline but in the center of it.

[ have organized my arguments in four steps:

First, by detailing my epistemological remarks | will propose two funda-

mental orientations in criminological reasoning;

Secondiy, I will discuss the relation between criminology and penal pol-

ICy;

My third point will deal with crime and politics;

Finally [ will treat the relationship between economics and crime.

In other words, [ have chosen to treat the topic which I was asked by the

programme committee to talk about and which appears in the title of this arti-

cle less on a formal and abstract than on à more substantive level.

1. EPISTEMOLOGICAL OPTIONS

Let me start by emphasizing that contrary to a wide-spread negligence, 1f

not ignorance of epistemological questions in empirical disciplines | would

agree with the English sociologist A. Giddens and the French sociologist P.

Bourdieu that no empirical science can dispense with philosophical roots and

assumptions. This 1s true not only in the trivial sense that philosophical

assumptions and presuppositions are “‘ultimately” and “irreversibly” impli-

cated in all human existence, but it means that they are an integrated part and

aspect of all human and social activity. They, therefore, cannot be segregated

and treated in a specific scientific discipline - like philosophy - but have to be

taken into account by the theoretical and empirical instruments that are used

for studying a specific subject-area. However, this 1s not to say, that every

empirical science has its own philosophical structure and orientation according

to its own field of research. Philosophical and epistemological conceptions

about the ways to define, to produce and to ‘accept” human knowledge claim

— 40 —

to apply to the theoretical and methodological strategies of all the different

empirical areas of research, notwithstanding their substantive specificities.

Even the long held dualistic epistemology that separates the natural sciences

from their human counterparts tends to collapse in view of constructionist and

deconstructionist philosophical positions and chaos theory as the latest devel-

opment in philosophical reasoning.

Indeed, there have been dramatic and far-reaching developments and evo-

lutions in the area of epistemology and the philosophy and theory of science.

The most fundamental attack on the basis of modern science and all 1ts

branches surely aims at the conception of the relationship between human

knowledge on the one hand and the object of this knowledge on the other

hand. It has almost become scientific commonsense that the neat and straight

idea of an objective reality that can be grasped and made visible in its pure and

uncompromised virginity belongs to those goods in the business of science

that have tremendously lost their value. AIl human knowledge - and science as

its most ‘“’objectified” and most ‘“modern” version cannot be excluded from this

philosophical finding - is ultimately and irreversibly stained and impregnated

with human interests, goals, values and metaphysical assumptions.

So, of course, 1s criminology though one can find a widespread reluctance

in the field to accept this epistemological position. Despite this aversion, how-

ever, criminology needs not too much travelling around in and borrowing from

the empire of philosophy to realize that the discipline at least in some parts is

also haunted - even more: has been shaken in some periods - by these 1deas.

Criminologists don't have to get too much involved in the vigorous and pas-

sionate philosophical debate about R. Rorty's ‘“Philosophy and the Mirror of

Nature “(1979) and its sweeping rejection of the idea that the architecture of

human knowledge has to correspond and to reflect the architecture of the

object and the reality “out there “.

Against a kind of disciplinary amnesia [ want to recall to you the long dis-

cussions and controversies during the fifties and sixties about the definition of

the subject-matter of criminology. The simple question: “What 1s crime” 1s still

an embarrassing and intricate question for criminology - despite 1ts routine and

pragmatic handling in the empirical workshops of the discipline.

The reason and source of this embarrassment became clear when

criminologists did not succeed in finding another answer to this question than

that which is given by the penal code. All attempts that were made by socio-

logists and criminologists to arrive at a law-free, independent, scientific and

authentic definition of crime have failed in the past and are doomed to fail in

the future.

— 41 —

This has, as 1s well known, confronted criminology and criminological

research with a dilemma which 1s still with the discipline and which marks a

dividing line between two different orientations in the field. The fundamental

basis of this dilemma, however, seems to belong to the convergent points in

criminology that are shared by all criminologists whatever theoretical or meth-

odological option they might prefer otherwise. Virtually nobody in the field

would deny that the penal law is a basically history-bound and society-based -

and this means for all theoretical and practical purposes: in all its ramifications

and levels a political - system of rules which lacks all the properties that the

rules of an objective and positivistic science presupposes and claims. To deny

this would run counter to all we know about the law from the philosophy, the

theory and the sociology of law.

The dilemma that criminology is confronted with by its inescapable

dependency on the penal law and its historicity and politicality has been dis-

cussed again and again and haunts its scholars to the present day. Let me for

the sake of getting at a rough typology of different criminological strategies

describe the two existing principal reactions to this dilemma.

— The first option which 1s that of the positivist school of criminology

consists in searching endlessly and restlessly - with the inbuilt principle of

hope for ultimate success - for the causes of crime by conceiving crime as

behaviour; how 1t is defined for and delivered to criminology within resp. from

the workshops of the penal law. The epistemological upshot and social product

of this means in a very literal and consequential sense to bestow upon the

historical nature of criminal laws the dignity and objectivity of laws and

regularities in the scientific meaning of these terms.

— The second option of the described dilemma is based on D. Matza's

(1964) famous definition and analysis of crime as a ‘‘fraction” - and not as an

action. This means de-emphasizing and - which is more - de-centering the

behavioural aspect of crime in favour of its normative aspect. This second

option cancelled and repealed what again Matza has sarcastically called the

greatest merit and achievement of positivist criminology, namely to separate

the straight and plainly given connection of the state and of crime (D.Matza

1969). This simple evidence, that makes one wonder how it could have been

ignored and in whose interest this happened, has released and prompted a vir-

tual flood of studies and theoretical refilections on the structure and the functi-

ons of the penal law.

This second option of the dilemma could be further divided into two dif-

ferent sub-types. The one can be characterized by a strategy that applies

empirical methods of the social sciences for the purpose of measuring and

— 42 —

describing the facticity of the criminal justice system in the sense of À. Nuss-

baums program of a “Rechtstatsachenforschung” (1968). Its main thrust and

leading research orientation can be said to produce an empirical matrix of the

functioning of the law, with the often implicit intention to contrast the lan-

guage of the law with its spoken reality, the law in the books with the law in

action, as the realist tradition in the sociology of law has emphasized since

long. The second sub-type is more theoretically oriented in the sense that it

tries to reflect upon the relationships between the penal law and the social,

economic and political structure of the society. Being a traditional concern of

the sociology of law, 1t has been vigorously revitalized by the “movement” of

Critical Legal Studies (CLS) in the last two decades.

These are to my understanding the two or three big orientations which

exist in criminology on the epistemological level and which are more than

merely different theoretical perspectives and methodological strategies. My

following reflections will deal explicitly with the second option and only

implicitly with the first one.

The place and occasion of my talk offer me the opportunity to put my

remarks in continuity with part of the discussion of the forerunner of this con-

gress five years ago in Hamburg. ! will depict two discussions we had in Ham-

burg which I will use to pinpoint the pitfalls and problems criminology 1s

faced with when dealing with its subject-matter.

Two colleagues coming from the two sides of parts of the world, in those

days (1988) still separated by the iron curtain - Jan van Dijk from the

Netherlands and Jacek Kurczewski from Poland - presented each a remarkable

and excellent communication that aroused considerable attention and debate.

Jan van Dijk talked about “The system of penal sanctions and the process of

Civilization ‘*whereas Jacek Kurczewski made à communication about ‘Crime

and abuse of power”

2. CRIMINOLOGY MEETS

PENAL POLICY

Our Dutch colleague (J.v.Dijk 1988) presented a broadly and meticulously

documented historical analysis of the permanent decrease of the prison as a

penal sanction and 1ts slow but steady substitution by less freedom-restricting

measures. He took this development as à case in point of N. Elias’ famous

socio-psycho-historical study of - as the title of his two-volumed study reads -

“the process of civilization “(1978/79) which has happened in the occidental

process of modernization, state-building and the monopolization and cen-

— 43 —

tralisation of power. Van Dijk's analysis served him also to launch some severe

attacks on colleagues of a more critical orientation in the field, notably on

authors of abolitionism. One of the main arguments of van Dijk against this

critical kind of criminology was the reproach that it would fail to assume its

proper role as a pressure-group for the civilizing process he had demonstrated.

] would like to make four follow-up remarks to van Dijk's empirical study

of the penal law - this will help me to clarify my own position with respect to

the different orientations in criminological analysis.

a) My most important remark refers to the empirical base-line of van

Dijk's theoretically ambitious argument: the assumption of a permanent

decline of prison and prison population and their losing importance for penal

strategies. Ât the time when he made his analysis, in 1988, he could - and did -

reasonably and explicitly exempt the contradictory American case as an excep-

tion from the stated rule. However, does this still hold in view of the develop-

ment since then and does it apply to the present situation where prison

population 1s increasing almost everywhere and prison construction belongs to

one of the favourite political measures in the war against crime’ Indeed, van

Dijk's whole argument is doomed to collapse if one takes a second, a more

close and a less interested look at the very empirical basis on which the main

thrust of his argument rests.

b) My second point 1s also a very general one and refers to the scientific

risk of writing what I would suggest to call success stories of the type of van

Dijk'‘s and which criminology 1is, as I would see it, specifically prone to. My

argument against this tendency would be a strictly scientific one and 1s based

on a principle that has been variously phrased and formulated by a host of

scholars. Science serves its function best when it is geared to the systematic

and empirical search for and study of failure, of unintended, unwanted,

unseen, ignored, invisible consequences. This principle could be likewise

grounded on K.R.Popper's methodological principle of critical rationalism and

on the best of the functionalist tradition in anthropology and sociology ?

c) My third remark refers to the risk of an interdisciplinary science like

criminology to make use of other discipline's concepts and theories in a some-

(2)

This principle that could be considered the central core of sociological analysis seems

to me so generally accepted that it will hardly be necessary to refer to specific authors who

have introduced and elaborated this theoretical strategy. To trace back its historical roots one

would have to start with G. W. Hegel and K. Marx, move on to B. Malinowski and M. Weber

and arrive at the work of so different authors as R.K.Merton, R. Boudon, J. Elster, N. Luh-

mann, À. Giddens, P. Bourdieu, and -again and notably - M. Foucault.

— 44 —_

what elliptical, truncated and selective way. Van Dijk's attempt to exploit Elias'

theory as a witness for his success narrative of the penal system 1gnores a lot

of empirical and theoretical arguments that have been launched against Elias

from historians as well as from sociologists 3 Apart from this, one has to grap-

ple with the cynicism of a theory of civilization, that was first published in

1936, in view of the historical events which the world has experienced since

then and after its initial conception 4. My allusion to the holocaust raises the

question how the holocaust could be normalized to fit into a theory of civiliza-

tion. The argument could be extended to political and social events and atro-

cities we are experiencing these days - while we are convening for this

conference. Furthermore, one could more generally raise the question for the

“transaction costs” of the civilizing process. These consist in my understand-

ing in costs which the civilized nations in Elias' sense which are the occidental

states have imposed on and externalized to other parts and societies of the

world - or even on parts and populations of their own societies - for achieving

their civilization process. One would wonder whether Elias could and would

have written his book ten or twenty years later. No, the assumed demise and

decrease of imprisonment, if at all one could speak of it, weighs too small to

support the civilization narrative, nor can it be explained or supported by the

theory.

d) My last and fourth argument against such criminological success-sto-

ries refers to their assumed function with respect to pressure politics. The

problem of the relationship between science and politics that is at issue here

has had a special and pointed relevance in the history of criminology - and has

so to the present day. It does not belong in my view to the glorious chapters in

the book of the history of criminology.

More than other sciences criminology has its immediate roots in political

and administrative requirements and exigencies as is known for a long time

with regard to the development of the criminal statistics. The merit, however,

to have kicked open the door to the whole range and complexity of the intri-

(3)

] would like to refer to the several volumes comprising attempt of the German anthro-

pologist H.P. Duerr to unmask Elias' theory of civilization as a myth (1988, 1990, 1993).

Duerr's method consists in, first, à diligent re-reading and re-interpreting of the very histori-

cal and cultural sources and material Elias has used for his study and, second, in drawing on

a lot of additional sources and evidence.

(4)

I would like to refer the reader to an encompassing project of the important (private)

Hamburger Institut für Sozialforschung (Mittelweg 36, 20148 Hamburg, tel.: 40-41 40 97 0)

that aims at a more general and theoretical study and reconsideration of Elias' thesis and

which extends its scope beyond Europe and to phenomena like torture, violence within and

between societies in an historical and systematic perspective.

__ 45 —_

cate relationship between criminology and penal politics, undoubtedly goes to

M. Foucault who has considerably inspired, for instance, the excellent study of

D. Garland on ‘’Punishment and Welfare” (1985) and the receiving and giving

role criminology has played in this process. If nothing else, it should be for

this reason only that one has to agree with Stan Cohen's advice to criminology

not to fall back behind the insights of Foucault on the complexities of the rela-

tionship between criminology and penal policy (1988, p. 10).

It seems to me hazardous, to say the least, to make causal attributions with

regard to the direction and the strength of the connection between science and

policy. Ît is a very slippery ground on which one moves in this area where rea-

sons and causes cannot be neatly separated from rationalizations, where talk

and rhetoric are used systematically for expressing as well as for selling - and

hiding - intentions, where delusions and self-deceptions are rather the rule than

the exception. Probably, there 1s no other applied field of the social sciences

than criminology where so permanently good will has been transformed into

bad outcomes and perverse effects, where examples for M. Weber's famous

paradox of the discrepancy between the will and its products literally

abound ”. Flattering, therefore, as it may be for criminology to conceive of

itself as a moving agency, 1f not avant-garde in criminal policy, there 1s good

reason to alert criminology against the risk of thereby also being flattened.

3. CRIMINOLOGY MEETS POLITICS

Let me now turn to the second paper of the Hamburg congress that ! want

to depict for sharpening my argument. In fact, the rest of my presentation will

treat - and extend this paper. Unfortunately, however, as far as I know, J.

Kurcewskis treatment of the topic “crime and abuse of power “has not been

published. [ have to quote, therefore, from the manuscipt.

The way he dealt with his topic for his still communist country proves to

be a paradigmatic case for the limits and shortcomings of a criminology that

disconnects itself from the wider social and political structures of the society.

Time and occasion don't allow a detailed exposition of his argument. Suf-

fice it to say that Kurczewski just denies the usefulness and appropriateness of

(5)

The most notorious case in point 1s obviously the century long project of rehabilitation

and resocialization with its thousands of programs and experiments of improving and

humanizing penal social control and changing its punitive character. Neither has this enor-

mous effort considerably reduced crime or the rate of recidivism, nor has it contributed to the

improvement of the internal structure of the prison system.

__ 46 —

the concepts of crime and abuse of power for Poland of those days. His central

question 1s this: Is one forced to choose between the grotesque application of

the positivist concept of crime as defined by the positive law embodied in the

codes, statutes and verdicts thereby creating fantasy of an order that has almost

nothing in common with the reality and the resignation from the concepts of

crime and law as the natural consequences of the lawlessness that seems to

characterise this type of society if by law the reference to the Rule of Law 1s

meant? “(p. 7).

Of course, this question is a rhetorical one - the answer is an uncompro-

mising “no”. Again in his own words: “In my opinion the countries of the real

socialism until now have developed the political structure of total character in

which the concept of law and therefore of crime doesn't hold”(p. 14). Still

more pointedly: “The practical as well as the theoretical way out of this situa-

tion is through the rejection of the naive concept of law and crime”(ibid.).

Which lesson, if any at all, does this analysis teach to criminology in gen-

eral? Before dealing with this question in some detail, let me just recall that

Kurczewski's position was at that time by no means shared by all his collea-

gues. Even some western criminologists in those days had no doubts about

using the grammar of criminology as applicable to those countries. Apart,

however, from this polemic: the more trenchant and surely controversial issue

comes up when one takes the liberty to assume that what was scientifically

right for socialist countries might not be totally wrong for other societies.

Let me offer some examples: Somalia, Yugoslavia. Iraq, Iran, Brazil,

South Africa, China - [ could continue this list - but where would I stop? As 1s

obvious, I have set fire to all the neighbour's houses but not - coming from one

of those countries who have come to be known as democratic and capitalist

societies - to my own. This, indeed, seems to me the real litmus test for my

point: do we have to include 1n this list also the countries - or some of them -

of what I would prefer to call ‘‘actually existing” capitalism? Isn't there also

with regard to them a sense in which one could say that crime and law are no

longer appropriate terms to describe and analyze their empirical reality? Isn't

there a sense of cynicism when we look at the raw material that we crimino-

logists get delivered by the penal law, and at what we don't get? Doesn't crime

and the penal law, to put 1t still differently, and more generally, prove itself

written and, what is more essential, spoken in a dialect that a growing part of

the population also in capitalist countries don't understand, nor is willing to

learn?

Criminology itself has unveiled and accumulated a lot of results and find-

ings which at least give partial answers to these questions. However, seldom it

— 47 —

interprets and theorizes them in a way that could be taken as answers to these

questions. Instead, however, of enumerating and detailing them here I would

rather like to talk about two ongoing series of events in my own country that

might help further in getting at these answers.

a) ‘‘Hate crimes”: new questions and old answers

The first series of events [ want to draw your attention to are the crimes

against foreigners that have happened during the last two or three years all

over the old and the new Germany and which have received front-page and

prime-time coverage in all parts of the world. Better known cities like Ros-

tock, less known places like Hoyerswerda, Mälin and Solingen have become

infamous and synonymous with the English penal neologism of ‘’hate

crimes” *.

What else, however, except this new name or concept does criminology

have at its disposal to deal with these criminal attacks on people who are for-

eign, strange, weak, handicapped, outsiders? Are we prepared to analyze and

do more than count the acts; study the perpetrators up and down the variables

that biology, psychology, sociology and - more recently - biogenetics have told

and taught us to study; identify among them retrospectively - prospectively

would perhaps take us a little too much time - those who resist, desist or per-

sist /? Do we have the conceptual tools to deal in scientific terms with some

commonsense wisdom that there are ‘‘actors behind” these actors, that there

exist links between those arenas that we are used to enter for our study and

those in whose name and with whose support and money we get access to the

former’ If we would be able to identify those mentioned backstage actors we

(6)

“Hate crime”, or as 1s also said, “bias crime” 1s a penal law category rather than a crim-

inological concept. Though a rather ambiguous and an easily mishandled term it is used as an

aggravating motivational qualification of certain crimes against members of minority groups

- “… Motivated entirely or in part by the victim's difference” (J. McDevitt 1993, p.356).

(7)

These terms, as is well known, belong to the conceptual and political gains that have

been produced by the most recent and methodologically most sophisticated springoff of pos-

itivist and penal law oriented criminology which is, of course, the booming and money rais-

ing research area of cohort analysis and longitudinal studies. Apparently the worldwide

increase of violence has delivered criminologists a new password for unlashing lots of funds

to follow this theoretically unsound route of criminological research, as can be gathered from

a recent review symposium in Contemporary Sociology on a US government sponsored

report of high-ranking criminologists and other scientific experts on “Understanding and Pre-

venting Violence” which is additionally upgraded by its publication under the auspices of the

National Academy of Sciences (W. Kornblum, R. Horowitz and T. Hirschi 1993)

__ 48 —

could at least administer to them all the instruments, tools and tests we have

developed and at our disposal to study the frontstage actors.

To get my point home I would like to give a more specific example: where

is the criminological theory that could have taught a well-known German poli-

tician, the long time secretary of the party in federal power for more than ten

years. the suggestion to drop in the official police statistics the information

about the national origin of the actors known to the police? One could perhaps

extend this idea and look for other gains we would get in reducing the infor-

mations that are delivered by the criminal statistics - what about dropping

them altogether? Which and whose truths would we lose?

To my knowledge most of these questions point to blind spots on the

criminological landscape. Is criminology part and parcel of the mentioned

‘’actors behind” the actually incriminated actors? I know that [ am stretching

the concept of actor to a point that notably the jurists among the readers may

find shocking and hair-raising - but has criminology by adapting 1itself to the

legal concept of crime to comply with the normative version of action as

defined in the penal law? Wouldn't criminology profit more from the concep-

tual tools of action and agency theory that have developed in the social scien-

ces in the last decade by the works of authors like À. Giddens, P. Bourdieu, H.

Joas. or Harrison C.White's fascinating Structural Theory of Social Action

(1992), to mention just a few of them who have pushed theoretical and

emplirical research in this area beyond the limits of M. Weber and the voluntar-

ism of T. Parsons?

b) Crimes of “‘transaction’’: limits of criminology

Let me now for the extension of my questions turn to the second set of

events that Germany is experiencing since the fall of the Berlin wall. The

reflections that follow are also meant as a contribution to the general theme of

this congress: Socio-political change and crime.

What can be observed and what 1s demonstrated in the new parts of Ger-

many with respect to rising crime rates and a growing fear of crime in the pop-

ulation

Is commonsense to criminologists since À. Quetelet, A. Lacassagne

and E. Durkheim: crime 1s normal and 1s a social budget that has some coun-

(3)

Though there has been an increase in the crime rates during the last years of the former

GDR there is a growth rate of crime in these new parts of Germany, as, of course, in the other

ex-socialist countries, since the fall of the wall that unsurprisingly 1s beyond the limits we are

accustomed to in all the western democracies. This development 1s reflected in the inflation-

ary rise of fear of crime in the new parts of Germany as can be seen in publications like that

of K. Sessar (1993). S. Babl (1993). K.-H. Reuband (1993)

__ 49 —_

table regularities and 1s related to the specific structures of the society. My

argument, however, is not primarily related to this ‘““normal” process of the

increase of crime according to the iron law of Quetelet and Durkheim. What I

want to draw criminologists' attention to is what I would call a certain surplus

rate of crime in these countries that by all guesses have a high probability of

happening, but still a higher probability of escaping their listing in the book-

keeping system of the penal law and of criminology ”. These crimes dontt

show up in our criminological laboratories and among our survey or otherwise

produced data, be they cross-sectionally or longitudinally generated.

I would suggest calling them transaction crimes in the double sense of the

political and economic meaning of the concept of “transaction’”’. Crimes, in

other words, that are related to this unprecedented social, political and - for all

practical reasons, first of all - economic transformations. What these crimes

consist of starts with daily frauds, acts of exploiting ignorance with, fear from,

uncertainty about and trust in the urgently wanted and needed new social and

economic system. They extend to the top-level crimes of the soldiers of fortu-

nes, gold diggers and - to use a term from R.K.Merton's famous anomie theory

- robber barons who orchestrate and who populate the suites of what is

euphemistically called the process of privatization.

There 1s still more to this seamy and ugly side of this process of transfor-

mation that takes place under our eyes and which is of a highly moral nature.

In the name of, and by the mechanisms of the moral superiority of, the capital-

ist system we produce millions of broken identities and self-concepts, devalue

skills, competences and biographies, terminate careers, cool out hopes, 1llu-

sions and expectations that we have raised and stimulated in the first place. We

do this to an extent that is as unprecedented as this historical process of politi-

cal and economic transformation 1s in itself. ! think, everybody would agree on

the paradox that inside the morally corrupted world of real socialism existed

thousands of small moral worlds populated with millions of people with

untainted moral integrity whose sense of social justice gets hurt to - again - an

10

unprecedented extent

. But there 1s also, on the other hand, a high moral

(9)

To do empirical research on these social facts would require criminology to leave

behind and transcend the categories, methodological devices and empirical procedures we

are taught to use in representing the world(s) of crime and criminals. Notably criminology

would have to take seriously ‘“‘crime” as perceived and applied in everyday behavior and

interaction.

(10) Criminology, probably social science in general, may lack the conceptual and linguistic

tools for adequately analysing and representing these social facts and products. It seems as 1f

one has to look for a different generic type of texts to grasp the sense and the structure of

these phenomena. An excellent case in point is an essay in the news-magazine “DER

SPIEGEL ” that is written by a former dissident of the GDR, now a member of the federal

parliament (K. Weiss 1993).

— sp —

prize that the colonizers have to pay. This prize consists of a sort of instituito-

nalized attitude of self-rightousness, complacence and even arrogance that

completes and closes what may be called a fatal vicious circle.

How could one translate this into a criminological “grammar”’ Surely it

would produce contradiction to talk about crimes. Perhaps it would permit us

to talk about criminogenic or etiological factors that structurally produce

crime. Is this massive process of victimisation a case for criminology's latest

offspring, for victimology? Not that easily, [ would assume, but probably

victomology should go to work and look out for the “producers” of these vic-

tims or else to introduce the complementary term to the well-known ““crimes

without victims” - ‘“‘victims without crimes”.

Or do we have to leave the arena of criminology altogether? Before doing

some steps in that direction in my last section, [ would like to introduce an 1idea

that ! have taken from Charles Tilly's extensive studies and publications on

modern West European history during the last two centuries, especially on the

mechanisms and processes of nation building and state formation. Notably for

Germany, to a lesser extent for the other ex-socialist societies, one could talk

of a situation that 1s highly comparable to such a process of state formation.

In one of his numerous articles Tilly distinguishes two opposite models

for the birth period and circumstances of state building which deserve being

quoted to a criminological public because they are cast in the words of our

discipline. What follows are parts of the first paragraph of his article: “If pro-

tection rackets represent organized crime at its smoothest, then… state making

- quintessential protection rackets with the advantage of legitimacy - qualify as

our largest examples of organized crime. At least for the European experience

of the last few centuries, a portrait… of state makers as coercive and self-seek-

ing entrepreneurs bears a far greater resemblance to the facts than do its chief

alternatives: the idea of a social contract, the idea of an open market in which

operators of... states offer services to willing consumers, the idea of a society

whose shared norms and expectations call forth a certain kind of government

“(1985, p. 169).

Misleading and risky, sometimes even irresponsible as analogies and

comparisons always are, and despite the fact that history never repeats 1tself

except, as K. Marx once observed with respect to the French history, as a

farce !!: don't we have to transcend and to transgress the limits and borders of

(11) This is a somewhat adapted version of the introduction of Marx' famous work “Der

l8te Brumaire des Louis Bonaparte”(1960). Marx modified Hegel's remark that every big

historical event happens twice by saying that the first time it appears as a tragedy and the sec-

ond time as a farce (p. 115).

_— 51 —

criminology in its average understanding in trying to analyze the events that

we are faced with and which we signify with the elegant euphemism ‘’socio-

political change” ?

The question 1s rhetorical, once more. It has, however, and this 1s my cen-

tral point, considerable consequences for criminology as a scientific enterprise.

It means that the tools and the competence of criminology are restricted to and

imprisoned in the narrow walls of normal, peaceful and consensual times and

societies - rare instances, indeed, and: anthropologists would probably talk of à

sort of scientific ethnocentrism. This would, however, explain very well why

criminology shows so much reluctance to engage with, and has so many

difficulties with analysing, those grounds and areas of social reality where

crime meets politics and vice versa.

4. CRIMINOLOGY MEETS ECONOMICS

Or should I say: where crime meets economics? As the last point of my

paper [ want to add some remarks on a theoretical issue that I consider one of

the most trenchant though least discussed and still less resolved analytical pro-

blems in and for criminology.

To begin with a widely accepted truism: more and more economic reason

wins over political reason, regulation by the market replaces increasingly reg-

ulation by the state. This takes place in all areas of politics and state activities.

The field that criminology deals with 1s not excluded, as has recently - drawing

on a wide range of empirical phenomena and literature - nicely been shown by

Nils Christie (1993). Most visible and significant is this in those parts of the

criminal justice system where the principles of the rule of law are at their

weakest, In its entrance and in its exit institutions, in the police and in prison.

How can we interpret and theorize this development? What does the

growing intrusion of economic and market rationality into all kinds of areas of

social and moral life mean for the type of society we are living in or are head-

ing to? [ would like to argue against a widespread, often more implicit than

explicit, view that fails to make a decisive distinction between the market and

the state. There 1s a tendency to conceive of the market and the state just as

two different, yet more or less exchangeable, systems or principles of social

regulation or social control. In terms of functional structuralism they are con-

sidered and conceived of as functional alternatives. The choice between these

two modes of regulation should be grounded on nothing else than considerati-

ons of expediency, efficiency. or cost-benefit-relations.

— 52 —

This perspective ignores in my view a distinction between the two modes

of regulation that 1s of vital theoretical importance. The state and the law as 1ts

main mechanism of governing 1s to all our conceptions, convictions and tradi-

tions a moral enterprise, which the market, according once more to all the

transmitted knowledge and wisdom that scholars like A.Smith, J. Bentham,

K.Marx.E Durkheim, M. Weber and many others have passed to us, is not.

Substituting state and law by market and costs 1s equivalent to weakening and

dropping the moral mode of social regulation. Imposing an economic perspec-

tive on social relations means undermining and eroding the vigour and force of

moral obligations.

To come back to the historical example of Germany's contemporary crime

problems: The outcry among the people in the new parts of Germany might be

explained by a fatal and even tragic misunderstanding. À well-known dissident

from former East Germany, Bärbel Bohley, made the embittered and

depressing statement: ‘“What we wanted was justice, what we received was the

rule of law state *. According to my view one has to modify this statement by

saying that they hoped for a new moral and political order, but have got in the

first (and probably only) place a new economic order with its institutionalized

indifference towards moral issues. (Incidentally, this sort of misunderstanding

may also be responsible for the surprising fact that the general title of the con-

gress speaks of socio-political, but not of economic change.) What carries,

however, this irony to its peak and extremes, the promise of a moral order

might not be taken as a case of a priest's fraud but as an even more tragic self-

deception of those who made the promise in the first place.

What does this all mean for criminology? Isn't this development accompa-

nied by a kind of not so subterranean feeling that crime has lost its emphatic

moralistic sense, that it is an odd and old-fashioned term that doesn't fit any

longer with the type of social relations and collective existence we are both

subjected to, and reproduce, in our daily praxis and routines’?

Suppose ! am right and these are only my words for and my inferences

from what others have expressed differently when they have spoken about a

massive loss of sense and consciousness of law, about an increasing tendency

to bracket the law, to apply 1t creatively and to adapt it to an ever faster chan-

ging world and society, to new situations, circumstances and contingencies;

suppose | have merely said differently what other colleagues like K. Sessar

(1992), in a more methodologically disciplined way for instance, have found

out about a growing discrepancy between the penal law model of the adequate

reaction to crime and the victim's and general public's model of reaction; sup-

pose further, that this all does not mean that chaos, disorder, unlimited contin-

gency has taken over. Doesnt it nonetheless require us to leave behind the

— 53 —

concepts of crime and the penal law and to acknowledge their growing inade-

quacy, lack of fitness to do the job of producing an enlightened view on the

world around these concepts?

Isn't criminology faced with a growing disregard and inattention towards

its scientific products by those it addresses, be they policy makers, victims,

perpetrators, the public? Doesn't this represent a situation that needs other

reactions than the ritualized admission and avowal that there are still a lot of

blind spots and gaps in our criminological knowledge? An admission, how-

ever, that is all too hastily and in the same ritualistic manner accompanied by

the assurance that criminology is on its right way and merely needs more

money and more resources for essentially doing more of the same? Do we

have other answers than these self-referential reactions that in the long run -

and this may be countable in years only - may end up in a situation of ever

more ‘’knowledge” for ever fewer listeners and users? À situation that well

might transcend any sense of the scientific discourse and might require us to

take refuge to the language of poetry, fiction, comedy or tragedy or a mixture

of all of it”.

These questions might sound for some as coming from those unbounded

and unbounding discourses and texts which have come to be put under the

umbrella label of postmodernism. But postmodern thought has already entered

the field of criminology though this does not show up so much in the average

literature and textbooks of criminology(see, however: Alison Young 1993). It

is the proliferating and rampant branch of feminist studies in criminology that

draws heavily and successfully upon postmodern thought.

Criminology should have a vital interest in learning from and participat-

ing in the attempts by scholars in different disciplines to grasp a new under-

standing of social developments that are in process and progress and that have

already changed and are still changing the type of society we live in. Sociolo-

gists have moved - perhaps too early and too submissively - beyond concepts

like class, status and stratification and talk about risk and new dimensions and

levels of individualism that reshape the macro-structures of society as well as

the micro-structures of our lives.

However, criminology need not only be the receiving partner in such a

discussion about these pervasive changes of modern societies which surely

have to do with the penetration of economic thinking and rationality in society.

The contributions it has to offer are tremendous. It seems worth reminding

ourselves that the penal law and crime played a paradigmatic role for sociolog-

ical theory, notably for functional structuralism in the version from Durkheim

to T. Parsons. It is presently regaining momentum with the works and studies

—— 54 —

of authors like N. Christie (1993), Stan Cohen (1985), D. Garland (1990), to

mention but a few single names among many others - and with the feminist

criminologists in general.

If one contrasts this view and these implications of the role of economics

with respect to the social order of modern societies, to the view that one finds

traditionally in criminology there are differences that are hard to reconcile and

to bridge. There 1s no need to recapitulate which key role the economic factor

has played in the history of criminology - first and foremost as an ‘’independ-

ent variable” for the explanation of crime including its finest theoretical rea-

soning, like the once hegemonic anomie theory until symbolic interactionism

and its criminological version of labeling took over in the sixties.

There has been, however, a sort of subversive invasion of economic rea-

Soning in criminology and in criminal policy that until now and due to the

notorious reluctance of a great part of criminologists to the theory part of their

business has not yet attracted that attention among us that it in my view

deserves. It comes along in a more general guise and amounts to the resurrec-

tion of the classical utilitarian economic-man model of the nineteenth century

and the renewal of its imperialistic claim of an all-embracing competence for

the explanation - and for the regulation and the governing - of human beha-

viour. Ît is variously called neo-utilitarianism, new political economy and its

most de-politicized and theoretically pretentious version presents itself as RTC

or ‘“rational choice theory”.

It would take me too far to give a somewhat exhaustive idea of this creep-

ing occupation of criminological territory by rational choice thinking. Suffice

it to mention some of them. First of all, criminal behaviour and criminal policy

belong to the favourite examples and areas of human behaviour outside the

narrower field of economics to demonstrate the pertinence of rational choice

theory. The seminal paper of Gary S.Becker on ‘“Crime and Punishment: An

Economic Approach” (1968) which released and triggered a host of empirical

and theoretical studies set the tone and paved the way in this direction. From a

more general point of view for criminology, Becker explicitly and cavalierly

claims - as do all the later authors who use this approach - to replace all

criminological theorizing whatsoever, from Sutherland to Merton to Howard

S. Becker.

The same holds true - and this leads me to an author who interferes in

criminological thinking even more and with greater influence - for the political

scientist James Q. Wilson whose famous distinction between the root causes of

crime and those that are politically and pragmatically feasible aims at the

debunking of criminological theories of all kinds. The rationale for this, as can

_ 55—_

be found most clearly in his and Herrnstein's out-of-area bestseller ‘“Crime and

Human Nature” (1985), is an eclectic kind of theoretical reasoning in an essen-

tially rational choice perspective.

The main impact, however, that the idea of “The Reasoning Criminal” (R.

Clarke and D. Cornish 1986) - has had in criminological thinking, concerns

criminal policy. The return and resurrection of classical thinking in penal

policy, known, and criticized - among others and most vividly perhaps by N.

Christie's ‘“Limits to Pain” (1980) - as neo-classicism, was in theoretical terms

an offspring and a reinforcement of rational choice thinking. It was the basis for

the huge bulk of deterrence research in criminology during the 70s and the 80s.

Since deterrence also has to struggle considerably against failure and the

lack of returns, criminal policy has moved on to a new comprehensive strategy

- accompanied and encouraged again by the behavioral model of homo oeco-

nomicus and the rational actor. The glamourous new term and policy in the

» 12

area 1s, as is well known, ‘“prevention

which to the most part boils down to

increase the costs of crime by ‘‘target hardening”, safety devices for the protec-

tion of property, environmental and architectural design, creating ‘“defensible

spaces” and establishing all kind of other forms of situational measures of pre-

vention.

There would be, therefore, enough reason for criminology to deal with

and participate in the discussion about rational choice theory on a more princ1-

pled level and not to leave this job for reasons of a badly conceived scientific

division of labour to other disciplines and authors - despite the fact that this

theoretical orientation, first, is not only going to become hegemonic in the

social sciences, but, secondly, expresses also more than any other theoretical

approach the commonsense of advanced capitalistic societies.

What indeed is at issue and needs scientific - and criminological - study

and analysis is the destructive side of the more and more morally, politically

(12) Of course, this is no new concept. To the contrary, for penal law and criminology, pre-

vention has been the leading idea of modern criminal law since Beccaria and since the

enlightenment. Yet, there 1s something decisively new about the way prevention 1s used and

defined during the last two decades in western societies. Prevention has taken on a more pro-

active, offensive and intrusive quality which for the realm of penal law can best be observed

with respect to the changing and proliferating role the police has been granted in all demo-

cratic societies. Though there exist a vast bulk of literature on this process criminology and

penal policy has not yet really come to grips with it. It seems as 1f there is a development

under way that can only be grasped in analogy to transformations of an historical dimension

such as we know it for instance from the absolutist state. | have tried elsewhere to spell out

some of these reflections (F. Sack 1993).

—— 56 —

and socially unbound technical rationality of contemporary capitalist societies.

Of particular interest for criminology are the destructive forces that the logic

of instrumental and economic rationality imposes on and implies for the social

web of human existence. Criminology should, perhaps, after having abun-

dantly shown the primordial role the family plays for the genesis of crime

move on to the question what endangers the family in the first place.

Let me add two general and concluding remarks about my criticism on the

way criminology deals with the vital relationship between crime and econom-

ics. The dividing lines between the various discourses that exist in criminology

as they do in other parts of social sciences can no longer be cast in socialist or

bourgeois terms. The ultimate reference point of and the base line for my

arguments 1s the still unfinished road to political and individual freedom that

has to go beyond the freedom to invest, to allocate economic resources and

capital - and to consume.

If there 1s any lesson which has to be retained from the global failure and

collapse of socialism it 1s surely the conviction that the state has to be

excluded as the first and foremost agency for achieving this freedom. The way

and direction of freedom has never been that from the top to the bottom, but

always from the bottom to the top. Freedom 1s still a sharply and decisively

divided good - between and inside societies. To further promote freedom and

render it accessible to larger parts of the society and to a greater number of

societies would require us to introduce democratic and participatory measures

and rules into economic institutions and decisions.

Admittedly, there 1s nothing new to this idea. The sense of triviality which

it conveys upon the reader might be due to its seeming utopian character.

However, what invites to some optimism 1s this. The principle that was at the

heart of the driving forces which have changed our world in the last 200 years

to the effect that - to use the title of M Berman's famous and celebrated book -

“AH That Is Solid Melts Into Air’” (1982) was an economic one. There is no

doubt that this very principle continues to operate at an ever accelerating rate

and that it lays behind the deep transformations we are experiencing in theses

days in our societies. There 1s, therefore, any reason to believe and to hope that

our capitalist economic structures and institutions will finally be subject to the

same processes of dissolution, destruction, and transformation they have so

successfully released, organized and achieved.

— 57 —

CONCLUSION

SOME APOLOGIES

At the end of my reflections some apologies seem appropriate. First, I

want to apologize for the moral and even emotional engagement that some

parts of this article exhibit. Hopefully, this has not invalidated all of my argu-

ments. Second, I ask the reader to pardon me that I have transgressed here and

there the limits and borders of criminology. Ît is my conviction, however, that

our discipline has to deal with these wider issues and problems 1f it wants to

continue to take part in the critical role science has assumed and played since

its beginning.

My third and last apology refers to the fact that some of the readers might

have missed more ‘““sound” facts and data and might have wanted more

answers and less questions. l would like, therefore, to conclude my thoughts

with a quotation from a scholar who works in a similar fact-based discipline as

do criminologists. In his inaugural lecture at the prestigious Collège de France,

the holder of the chair for ancient history, Paul Veyne, described his concep-

tion of doing history in the following way: ““Finally one cannot resist the

idea,…, that in historiography the questions that are sociological are more

important than the answers that are empirical….In other words, it is more

important to have ideas than to know truths;…It amounts to setting an end to

naivety and to realize that what 1s existing does not need to exist “(1988, p. 42,

transil. by the author).

Could this not also be a good advice for doing criminology?

LITERATURE

Babl, Susanne, Mehr Unzufriedenheit mit der ôffentlichen Sicherheit im vereinten

Deutschland. Eine Zusammenstellung objektiver und subjektiver Indikatoren zur

Kriminalität, in: Gewalt in der Gesellschaft. Eine Dokumentation zum Stand der

Sozialwissenschaftlichen Forschung seit 1985, Bonn 1993, pp. 61-73

Becker, Gary S., Crime and Punishment: An Economic Approach, Journal of Political

Economy 76 (1968), p. 169-217

Berman, Marshall, AIl That Is Solid Melts Into Air. The Experience of Modernity, New

York 1982, 6th ed. 1991

Christie, Nils, Limits to Pain, Oslo 1980

Christie, Nils, Crime Control As Industry. Towards GULAGS, Western Style?, Oslo

1993

__ 58 —

Clarke, Ronald, and Derek Cornish, The Reasoning Criminal, Berlin - New York 1986

Cohen, Stanley, Visions of Social Control. Crime, Punishment and Classification,

Oxford and Cambridge 1985

Cohen, Stanley, Against Criminology, New Brunswick-Oxford 1988

Duerr, Hans Peter, Der Mythos vom Zivilisationsprozess, Bd. 1: Nacktheit und Scham,

1988; Bd. 2: Intimität, 1990; Bd. 3: Obszônität und Gewalt, 1993, Frankfurt

a.Main.

Elias, Norbert, Über den ProzeB der Zivilisation. Soziogenetische und psychogenetische

Untersuchungen, 2 vol., Frankfurt 1978/1979 ( orig. publ. 1936 )

Garland, David, Punishment and Welfare. À history of penal strategies, Aldershot and

Brookfield 1985

Garland, David, Punishment an d Modern Society. À Study in Social Theory, Oxford

1990

Jacobs, Jim, Rethinking the War Against Hate Crimes: À New York City Perspective

Kornblum, William, Ruth Horowitz and Travis Hirschi, Review symposium on: Under-

standing and Preventing Violence, ed. by Albert J. Reiss, Jr., and Jeffrey A. Roth,

Washington, D.C., 1993, in: Contemporary Sociology 22 (1993), pp.344-350

Kurczewski, Jacek, Crime and Abuse of Power, unpubl. paper, September 1988

Marx, Karl, Der 18te Brumaire des Louis Napoleon, Marx Engels Werke, Bd. 8, Berlin

1960 (zuerst 1852)

Matza, David, Delinquency and Drift, New York, London, Sidney 1964

Matza, David, Becoming Deviant, Engelwood Cliffs, N.J., 1969

McDevitt, Jack, Review of: Gregory M. Herek and Kevin T. Berrill, Hate Crimes: Con-

fronting Violence against Lesbians and Gay Men, Newbury Park, CA, 1992, in:

Contemporary Sociology 22(1993), p. 356f.

Nussbaum, Arthur, Die Rechtstatsachenforschung. Programmschriften und praktische

Beispiele. Ausgewählt und eingeleitete von Manfred Rehbinder, Berlin 1968

Reuband, Karl-Heinz, Steigt in der Bundesrepublik die Verbrechensfurcht? Wider-

sprüchliche Ergebnisse aus der neuen Umfrageforschung, in: Eva Kampmeyer and

Jürgen Neumeyer, ed., Innere Unsicherheit, München 1993, S. 41-50

Rorty, Richard, Philosophy and the Mirror of Nature, New Haven, Conn., 1979

Sack, Fritz, Strafrechtliche Kontrolle und Sozialdisziplinierung, in: D. Frehsee et al.,

ed., Strafrecht, soziale Kontrolle, soziale Disziplinierung, Jahrbuch für Rechtssozi-

ologie und Rechtstheorie, Bd. 15, pp. 16-45

Sessar, Klaus, Wiedergutmachen oder Strafen. Einstellungen in der Bevälkerung und

der Justiz, Hamburger Studien zur Strafrechtliche Kontrolle und Sozialdiszi-

plinierung Kriminologie, Bd. 11, Pfaffenweiler 1992

Sessar, Klaus, Crime Rate Trends Before and After the End of the German Democratic

Republic, in: Bilsky,/Pfeiffer/Wetzels, ed., Fear of Crime and Victimisation, Stutt-

gart 1993, pp. 231-244.

Tilly, Charles, War Making and State Making as Organized Crime, in: Peter B. Evans,

Dietrich Rueschemeyer and Theda Skocpol, Eds., Bringing the State Back In,

Cambridge University Press 1985, pp. 169-191

van Dijk, Jan J.M., Strafsanktionen und ZivilisationsprozeB, Monatsschrift für Krimi-

nologie und Strafrechtsreform 72 (1989), S. 437-450

Veyne, Paul, Die Originalität des Unbekannten. Für eine andere Geschichtsschreibung,

Frankfurt 1988 ( french original: L'inventaire des différences, Paris 1976 )

— 59 —

Weiss, Konrad. Verlorene Hoffnung der Einheit, in: DER SPIEGEL (46/1993) pp. 41-

44

Wilson, James Q. and Richard Herrnstein, Crime and Human Nature, New York 1985

White. Harrison C. Identity and Control: À Structural Theory of Social Action, Prince-

ton. N.J., 1992

Young. Alison, Postmodern Criminology, Sage 1993 (forthcoming)

RESUME

Après avoir passé en revue les principaux discours qui dominent la crimi-

nologie, l'auteur examine les relations entre la criminologie et la politique cri-

minelle, et entre le crime, la politique et l'économie. Appelant à des 1dées plus

qu'à des vérités, et transgressant les limites volontiers assignées à la criminolo-

gie, 1l constate la déception de peuples qui, au lieu de l'ordre moral et politique

nouveau qu'ils attendaient d'un changement, voient s'installer un ordre écono-

mique indifférent aux enjeux moraux.

SUMMARY

After analysing the different discourses existing in criminology, the

author discusses the relationships between criminology and penal policy, and

between crime, politics, and economics. Arguing for having ideas better than

knowing truths, and for transgressing the limits and borders of criminology, he

looks at the hope of peoples who rather got a new economic order with ts

institutionalized indifference towards moral issues than a new moral and polit-

ical order.

RESUMEN

Después de haber examinado los principales discursos que dominan la cri-

minologfa, el autor analiza las relaciones existentes entre la criminologia y la

politica criminal, y entre el crimen, la politica y la economia. Refiriéndose a

ideas mâs que à verdades y transgrediendo los limites asignados naturalmente

a la criminologfa, constata la decepciôn de aquellos pueblos que, en lugar del

nuevo orden moral y politico esperado del cambio, ven instalarse un orden

econémico indiferente a los desafios morales.

— 60 —

Criminalization, decriminalization

and republican theory ‘

John BRAITHWAITE, with Philip PerTIT

Australian National University

We developed elsewhere a republican theory of criminal justice that incor-

porates a strong normative position on what should be criminalized and what

should be decriminalized (Braithwaite and Pettit, 1990). This paper draws

heavily on that book. ? Unfashionably, the theory is more general in its scope

than all of the competing theories apart from utilitarianism. Retributivism or

just deserts comprises perhaps the most influential competing theory. But the

theories of leading desert scholars such as Andrew von Hirsch have nothing to

say on what should be criminalized, on when police should decline to arrest

and when prosecutors should decline to proceed against conduct that satisfies

the definition of crime. At best, desert theorists can tell you who should get the

greater punishment among a number of offenders who have engaged in con-

duct which does meet the definition of crime, who have been arrested and who

have been convicted. Even in the limited domain of sentencing, there 1s noth-

ing in the theory of just deserts that provides an answer to the question of

whether imprisonment is or is not a morally acceptable form of punishment

(on sentencing see Pettit with Braithwaite, 1993).

Republican theory, in contrast, sets out to offer guidance on all the key

questions of criminal justice policy. We will explain how it has things to say

about what should be criminalized and about when we should decline to treat

conduct as crime even though 1t fits the definition of crime.

We were motivated in developing the republican theory of criminal justice

by what we saw as the need for a radical shift of theoretical direction to lift

criminology out of the hopelessness and cynicism of the ‘“nothing works”,

‘“’give ‘em what they deserve” era. Ultimately, the theory enables us to see that:

(1) the most serious crime problems in contemporary societies are precisely

the crime problems we are in the best position to reduce; and (2) the changes

(1)

This paper was presented at the 11th International Congress on Criminology, Budapest,

1993,

(2)

The paper also draws heavily on a paper Braithwaite presented at Queens University in

1992 (Braithwaite. 1992).

— 61 —

needed to effect these reductions have gathered significant momentum in

Western societies such as Australia during the past two decades (Braithwaite,

1993). In this paper, however, we restrict ourselves to some more foundational

claims about republican theory, simply bearing in mind that where 1t 1s all sup-

posed to lead is to a decisively changed way of thinking about the crime prob-

lem and its tractability.

WHAT IS REPUBLICAN THEORY ?

Republicanism really was the dominant political theory for several centu-

ries up to and including the 18th century. But in the nineteenth century repub-

licanism was supplanted by the dominant 19th century theories of liberalism,

Marxism and utilitarianism. It has been the continued hegemony of these 19th

century doctrines within 20th century criminology that has caused the disci-

pline to be such a dismal failure in its own terms. In advocating a return to a

pre-industrial, pre-capitalist intellectual foundation, we don’t want to be inter-

preted as advocating the creation of Montesquieu’s or Machiavelli’s or Jeffer-

son’s republics in 21st century Budapest. The intellectual challenge before us

Is to construct models of contemporary urban republics and practical strategies

for injecting republican elements into liberal urban life.

When one argues from the republican premises we will present below, one

ends up with a political theory package quite distinct from those that are cur-

rently dominant. Republicans cannot be sympathetic to the libertarian view

that the state should be kept weak because it poses a threat to individual free-

dom. Republicans walk away from Marxist views that the market order should

be weakened because 1it is exploitative or that the rule of law should be

rejected because law 1s a tool of ruling class interests. Republicans are unsym-

pathetic to the view, held by some liberals, that associational orders (unions,

industry associations, for example) should be kept weak because they threaten

individualism with a range of communitarian pathologies—vigilantism, disre-

spect for privacy, intolerance of diversity, oligarchy. Republicans equally are

unsympathetic to neo-corporatist views that direct community participation in

the democratic life of the nation should be discouraged in favour of democratic

participation that is funneled only through privileged associations such as

trade unions. Republicans of our stripe believe in strong individuals, à strong

state, strong markets, a strong associational order, strong community, and a

strong judiciary enforcing the rule of law. The republican ideal is of a separa-

tion of powers where each source of power 1s strong: strong foundational insti-

tutions exert countervailing power, each checking the abuse of power by

others. Republicans believe this because they think that freedom 1s at risk in

societies where individuals are weak, where the state 1s too weak to control

__ 62 —

vested interests, where consumers are forced to take whatever monopolies dish

up to them, where trade unions are not strong and free, where community par-

ticipation is muted, and where the rule of law is something a strong state or

powerful corporations can ignore.

Cass Sunstein (1988) advances four commitments as basic to republican-

1SM

(1) deliberation in governance which shapes as well as balances interests

(as opposed to simply doing deals between pre-political interests);

(2) political equality;

(3) universality, or debate to reconcile competing views, as a regulative

ideal:

and

(4) citizenship, community participation in public life.

We think that the elements mentioned by Sunstein are important parts of

the republican approach. But we see them as deriving from a more fundamen-

tal commitment to the value and importance of freedom, where freedom 1s

understood in a characteristic way. We describe the republican notion of free-

dom as dominion.

On the liberal understanding, freedom involves nothing over and above

the absence, however fragile and fortuitous, of interference by others. Thus

freedom is something that the entirely isolated individual—say, the atomistic

individual living alone in a state of nature—can enjoy. More than that, indeed,

it is something that the social isolate is going to enjoy more fully than the citi-

zen of a society: after all, the citizen suffers at least the interference of a coer-

cive law. On the republican understanding of freedom, however, it involves

not just the absence, but the secured absence, of interference by others. In par-

ticular, it involves the absence of interference that is secured in a public way

by the social, cultural, institutional and legal resources whereby someone is

protected: the measures that make it a matter of common knowledge that oth-

ers are deterred from interfering, will be opposed 1f they try to interfere, and

Will face the need to rectify any offence if they do succeed. Freedom in this

sense is the freedom of a city: it involves the full status of the citizen who is so

empowered vis-a-vis her fellows that she need not fear them or defer to them;

she has the objective and subjective assurance that enables her to walk tall

(Pettit, 1993a).

If the citizens of a society are each to enjoy this sort of subjective and

objective assurance against interference—this individual dominion, as we call

it—then it is more or less essential that Sunstein’s conditions are fulfilled. So

— 63 —

at least we believe. And so we think that republicans have generally assumed

(Pettit, 1993b). They have seen open governance and the deliberative reconcil-

iation of interests as the best means of sustaining the assurance required for the

enjoyment of dominion; they have naturally seen freedom as involving politi-

cal equality; and they have viewed active citizenship as an essential if people

are not to allow sectional interests to compromise the conditions for their indi-

vidual dominion.

In approaching issues of criminal justice from the republican standpoint,

we argued in Not Just Deserts that the criminal justice system should be

designed so that dominion is maximised in the society at large. The promotion

of dominion is likely to require interventionist state policies in a variety of

areas: in the social-security and medical-care areas, for example, as well as in

the provision of legal aid, educational opportunity, openness of information,

and so on. But we argued in our book that the promotion of dominion requires

very different policies in the area of criminal justice: policies of parsimony

under which the presumption is that the state should do nothing, unless the

burden of proof clearly favours intervention.

The principle of parsimony that we favour would motivate a decremental-

ist strategy of reducing levels of punishment as far as we can, at least until

clear evidence emerges that the reduction is beginning to increase criminal

activity. But what would the principle imply on the question of what activity to

designate as criminal? Would it argue for the criminalization of any conduct

that is currently not criminal or for the decriminalisation of any currently crim-

inal behaviour’

WHAT CONDUCT

SHOULD BE CRIMINALIZED ?

The classical liberal position on this question 1s that no activity ought to

be criminalized unless it causes harm to others. The best-known statement of

that position 1s found in John Stuart Mill:

The only purpose for which power can be rightfully exercised over any

member of a civilized community against his will, is to prevent harm to others.

His own good, either physical or moral, is not a sufficient warrant. He cannot

rightfully be compelled to do or forbear because it would be better for him to

do so, because it will make him happier, because, in the opinion of others, to

do so would be wise or even right. (Mill 1910 edn.: 72-3).

__ 64 —_

The two major attacks on the liberal position come from legal moralism

and legal paternalism respectively. Legal moralism would allow that an activ-

ity may be criminalized just because it is immoral or is at least regarded as

immoral in the community at large. Legal paternalism would allow that an

activity may be criminalized because it is likely to cause harm to the agent her-

self. The legal moralist questions the harm restriction in the harm-to-others

constraint; the legal paternalist questions the restriction to others.

Where would the republican stance place us in relation to the liberal, legal

moralist, and legal paternalist positions” Ît would replace the liberal concern

with harm by a concern with activities that diminish dominion. And it would

reject the legal moralist claim that the mere fact that an activity is immoral or

1s thought to be immoral constitutes a distinct reason why 1it should be crimi-

nalized. But it can, at least in principle, accept the legal paternalist claim that

activities which undermine a person’s own dominion are matters of concern as

well as activities which diminish the dominion of others.

This bold statement may cause anxiety on two fronts. First, our theory

may appear ominous, in so far as it broadens the target of concern from harm

to the diminution of dominion. And second, it may seem ominous in allowing

the criminal justice system to be directed against activities which damage only

the agent’s own dominion. But neither worry, we believe, ought to be taken

very seriously. The reason 1s that the presumption in favour of parsimony

ought to act as a severe constraint on what acts are criminalized. Thus, while

dominion might be threatened by someone spreading false rumours about

imprisonment without trial, parsimony suggests that the danger ought to be

met by a public information campaign, or by a civil remedy under defamation

law, not by criminalizing such an act. Again, while someone might be likely to

undermine her dominion through taking a certain drug, parsimony suggests

that the best way of coping with that problem might be to criminalize sale of

the drug without a prescription rather than criminalizing its use.

We tend to believe, for the record, that on a republican theory only those

activities would tend to be criminalized which threaten the persons, property,

or province of other citizens. In other words, we think that the republican com-

mitments would direct the criminal justice system towards the minimal type of

institution which the liberal applauds. Still, this is not very radical, since most

of our present criminal laws would remain. We would still want to criminalize

offences against the person such as homicide, assault, and intentional or reck-

less endangering of life through lack of occupational safety; offences against

property like robbery, burglary, theft, and fraud; and offences against people’s

province such as kidnapping, slavery, arbitrary arrest, and detention without

trial. Equally, we would continue to countenance what Feinberg (1986: 19-—22)

__ 65 —

calls derivative crimes. These are crimes which are not threats to dominion as

such but which endanger the system whereby dominion 1s protected. Examples

are carrying an unregistered hand-gun, escape from prison, tax evasion, prac-

tising medicine without a licence, and contempt of court.

But while such derivative criminal laws will often pass the republican test,

it is important to note that they require careful definition. Thus the law of con-

tempt of court is important in protecting the right to a fair trial and in ensuring

a dimension of dominion. If people disrupt trials, improperly influence a jury,

or subject the defendant to adverse publicity during the trial, then the right to a

fair trial is put in jeopardy. It is proper that the law of contempt of court should

criminalize such activities. Às things stand, however, the law of contempt 1s

often invoked, not just against such activities, but against protests by the

defendant, as when she makes voluble remarks at the trial or calls the judge a

fool. This use of the law 1s not designed to protect the right to a free trial, but to

protect the sensibilities of those who inflict punishment and to maintain order

in the courtroom. Neither of these goals justifies the application of the criminal

law. On the important matter of securing order in the courtroom, we believe

that this can be achieved by other, less invasive means than criminalization; a

perfectly adequate remedy would seem to be restraint or removal from the

courtroom until the defendant is willing to undertake not to interrupt.

Our commitment to criminalizing certain offences may be questioned on

the following lines. It may be said that as consequentialists we should want to

codify no offences at all, simply giving the state unbounded discretion to prose-

cute, try, and punish agents for acts of suitably serious intentional harm. But we

hope 1t is clear that on our theory, not only should appropriate crimes be codi-

fied in law, they should also be defined as precisely as possible. If the criminal

justice authorities are not bound by precise criminal laws, then their power 1s

relatively unchecked and there is a threat to the subjective component of

dominion. Ît is well known, for example, how the arbitrary use of the charge of

unseemly language to victimize Australian Aborigines has generated insecurity

within Aboriginal communities in their dealings with the police (Wilson 1978).

Furthermore, if criminal laws are not precisely defined, then the pursuit of rep-

robation will be 1ll-served. To the extent that laws are vague, citizens will not

pick up a clear understanding of just what 1t 1s that warrants reprobation.

We turn now to some difficult issues. We will look at three areas where

criminalization 1s controversial: crimes of offence, consensual crimes, and

strict liability crimes. We do this, not in order to defend a detailed set of pro-

posals, but in order to give a sense of the impact which a republican theory 1s

liable to have on some of the controversial matters that come up under this first

question.

— 66 —

Crimes of Offence

Making unseemly or offensive language criminal 1s a clear threat to free-

dom of speech, providing a weapon for those who wish to use the power of the

state to trample upon the dominion of others. Similarly, criminalizing blas-

phemy 1s an unjustifiable threat to religious freedom, criminalizing ‘sedition’

and offences against the flag a threat to political freedom. So too, criminalizing

public drunkenness, vagrancy, or gambling might be conceived as unreasona-

ble threats to social freedom, and criminalizing obscenity or public indecency

a threat to sexual freedom.

Issues of public indecency throw up what might seem a more difficult chal-

lenge. Suppose two young people engage in intimate sexual activities opposite

a minister of religion on a bus; for argument’s sake, imagine they are a homo-

sexual couple. You might say that the dominion of the minister is assaulted by

the behaviour, but this would be to adopt a much looser conception of domin-

ion than we have advanced. The loss of dominion can only be that which forces

the minister to close his eyes or move to another seat. But surely, you may

counter, life would be unpleasant for most of us 1f this kind of behaviour were

allowed to go in public and that we are entitled to protection from such an

intrusion on our feelings. Not wanting to dismiss this concern out of hand, our

response would be that there are better ways of dealing with the problem.

Being parsimonious and systemic in our thinking, we would prefer to

move the solution to the policing part of the criminal justice system. The

police have a role of maintaining public order and might be called in by the

minister to ask the couple to desist from causing offence. Alternatively, the

police might suggest that the minister move to another seat. In the unlikely

event that both suggestions were ignored, the conflict would undoubtedly

escalate. Ultimately, the police might have no option but to secure order by

removing the offensive persons from the bus. The police have a concern with

public order as well as with law enforcement and we would have no objection

in principle to their being able to remove those giving offence from the bus in

order to avoid an outbreak of public disorder. Maintaining public order and

thereby preventing crimes from occurring can be an important means of pro-

moting dominion.

(3)

The public order function of the police is totally a dominion-protecting function,

mainly justified by preventing crime before it occurs. The police officer pulls two drunks

apart who are abusing each other not because a crime has occurred but to prevent violence:

she keeps a crowd from milling too close to a head of state for the same reason. When public

order policing loses sight of dominion, as when it arrests the man who heckles the head of

state, it becomes dangerous.

— 67 —

The irony 1s that the very offences against morality which seem to pose

the most troubling challenge to decriminalization, such as the example above,

are those least likely to require social control by the criminal sanction. Inti-

mate sexual activity on buses 1s not a widespread problem in our society, and

this 1s so in the absence of effective criminal enforcement against the practice.

The more offensive the behaviour 1s to large sections of the populace the more

redundant the criminal justice system 1is. The minister in our example can eas-

ily spoil the couple’s experience by audibly expressing objection. The more

offensive the conduct, the greater the power of informal social control and the

more susceptible 1s criminalization to rejection on grounds of parsimony. The

less offensive the conduct, on the other hand, the more persuasive 1s the argu-

ment that criminalization is needed 1f the conduct 1s to be stopped; but in that

case, of course, it ceases to be clear why the promotion of dominion requires

that the conduct cease.

Consensual Crimes

À different kind of difficulty arises with behaviour that clearly does harm,

but where the harm 1s freely accepted by the victim. The prostitute who pro-

vides a spanking requested by a masochist does harm, at least in one ordinary

sense. But because the spanking 1s done with the consent of the victim and has

no further effects on the victim’s liberty-prospects, it does not reduce his

dominion. Thus we certainly would not want to criminalize 1t.

The case of the drug dealer who supplies heroin requested by an addict

raises different issues, however. In the long term, addiction will reduce the

dominion of the consensual victim. Ultimately, it may give her no choice but

to run every aspect of her life to service the habit; it may leave her with no

resources to resist the manipulations of dealers who use her money, or pimps

who use her body. This means that there 1s a case to consider in favour of crim-

inalizing heroin use.

But our theory is very unlikely to support the criminalization of using her-

oin, given the presumption of parsimony. Criminalizing the use of that sub-

stance is an invasion of dominion and the alleged benefits are doubtful.

Besides, criminalizing use of substances like heroin 1s likely to create an 1llicit

market, an underground organization of racketeers, and the potential for great

corruption.

We think that republican theory supports a policy of decriminalizing drug

use but requiring that substances like heroin be available only on prescription,

Wwithin the doctor-patient-pharmacist framework. We think that selling any

— 68 —

potent pharmaceuticals without a prescription should be a criminal offence

because there are so many thousands of them on the market, with such a diver-

sity of side-effects unknown to the lay person, that the state cannot be assured

that dominion 1s secure unless the transaction occurs within that framework.

But while wanting to decriminalize drug use, we would be appropriately con-

servative about the methods and time-frame for implementing a decriminaliza-

tion policy.

The damage of criminalization having been done, the state must

be very cautious in educating the community that decriminalization of drug

use 1s not intended to indicate that it no longer views such activity as a serious

problem. Decriminalization can only responsibly be undertaken after a com-

munity education campaign that reaches every group in the community, that

communicates to families and schools and peer groups that it 1s their job to

dissuade their members from drug abuse, not the job of the criminal law.

The open-system quality of the theory 1s clearly illustrated here. The the-

ory requires us to ask whether the problem 1s better dealt with by informal

social control outside the criminal justice system—via family socialization,

doctor—patient interaction, and so on. But in recommending that the drugs

problem be moved outside of the criminal justice system, the theory does not

allow the system to 1gnore the problem completely; after all, selling without a

prescription remains a crime. If the criminal law did not require a prescription,

pharmacists and doctors would not have the authority to apply their profes-

sional skills in controlling drug use. This example should clarify how one of

the challenges for an open systems approach is to co-ordinate interactions

between the criminal justice system and other systems. Lawyers are familiar

with this challenge with regard to harmonizing the criminal and civil law sys-

tems; but we can see that it is a problem of much wider import.

While we find it hard to think that criminalization would protect the

dominion of drug users, legislators who pressed this line would be required to

do a great deal of work under the strictures of republican theory. Systemic

analysis demands attention not only to the dominion of drug users but also to

the cost to dominion at the surveillance, investigation, and enforcement stages.

The republican legislators would ask for an analysis of the dollar costs of

criminalization in all these sub-systems; they would want to know how much

could be achieved for the dominion of drug users by spending these sums on

drug education programmes; they would want to know what proportion of

murders are associated with the black economy 1n illicit drugs, what propor-

tion of property crimes are associated with the need for addicts to fund their

habits. In the absence of such knowledge, republican legislators should opt for

the rest-position of minimal criminal justice intervention.

Strict Liability Crimes

À third area of difficulty in considering what to criminalize 1s strict liabil-

ity crime. We naturally assume, given our theory, that only persons who are

morally culpable for a prescribed encroachment upon the dominion of others

should be convicted: those who engage in harmful acts should be protected

from punishment which fails to take account of whether their behaviour was

intentional, reckless, negligent, or just accidental. The criminal law is a decid-

edly unparsimonious way of dealing with harmful conduct that involves no

fault, for if remaining blameless 1s insufficient to protect us from being pun-

ished, the subjective element of our dominion 1s under threat. Thus, the theory

clearly forbids crimes of absolute liability where the offender is in no way

blameworthy for the offence. However, the theory may permit what are often

called crimes of strict liability, wherein the offender did not intend to commit

the offence, but 1s nevertheless blameworthy at some lower standard of culpa-

bility.

Gross (1979: 342-740) provides an account of some forms of strict liabil-

ity (offences of ‘minimum culpability') which would be acceptable under the

terms of his theory and ours. We can reasonably hold a manufacturer strictly

liable for unintentionally selling contaminated food or drugs when two basic

requirements are met. First, it must be possible as a practical matter for the risk

of harm inherent in what was done to be appreciated by the person doing it.

Persons involved in the drug industry know in advance that much higher than

usual standards of care are required in their industry. Second, the person held

criminally responsible must have been in a position to prevent the harm and it

must have been part of her agreed responsibility to be watchful for this harm.

Thus, when the quality control manager is convicted for releasing an

impure batch of drugs, it will not do for her to be able to plead successfully

that she did not intend the people to die and that she exercised the usual degree

of care to prevent a catastrophe. The usual degree of care is not good enough.

She entered into her responsibilities knowing that society required her to take

whatever measures were necessary to obtain the special degree of care essen-

tial for her industry. À condition of reaping the benefits of selling dangerous

products is that the company must spend the extra time and money in deploy-

ing whatever extraordinary measures are required to protect the public. This is

not to deny the quality control director an ‘impossibility’ defence (nothing

could have been done) or a scapegoating defence (it was not truly she who was

responsible and in a position to prevent the harm) (see also Sadurski 1985:

242—3). But it is to insist that dominion may be best promoted overall if releas-

ing impure drugs is made a crime of strict liability.

— 70 —

We have seen in this section that republicanism conduces to the kind of

minimalist policy on criminalization also favoured by liberals. Yet the strict

liability case 1llustrates that where the threats to dominion are sufficiently pro-

found the parsimony presumption can be overriden in a way that puts the

republican on the side of criminalization. In practice, the republican legislator

would have to embark on a programme of rather widespread decriminalization

in most Western societies we know, and the only areas where there would very

likely be a need for significant new criminalization would be where changing

technology and changing economic institutions pose completely new threats to

dominion.

TAKING CRIME SERIOUSLY

Where criminalization will increase dominion, republicans therefore want

to take crime seriously. But what do republicans have to say to deconstruction-

ists who insist that what is a crime 1s an arbitrary and historically contingent

matter, reflecting perhaps the momentary perspective of those who hold the

reins of political power? Republicans should not be dismissive of the decon-

structionists observation. But we think they should point out that the world

would be a worse place (in terms of dominion) if we abandoned the concept of

crime in contemporary societies. Good consequences are achieved by describ-

ing spouse assault or occupational health and safety breaches as crimes.

Braithwaite’s experience as an Australian government business regulator

negotiating agreements with companies 1s that it is an empowering moment

when one 1s dealing with resistant or chain-dragging executives to say: “Gen-

tlemen [they always are!}] what we are talking about here is criminal conduct

by your company.” The concept of crime has deep traditional meanings in all

Western societies which the consequentialist should want to put to good use.

This, of course, is as true of consequentialists who want to destroy freedom

(by calling flag-burning a crime) as it is of republicans who wish to defend it.

But it is in our view an historically contingent fact that criminalization

increases liberty for most of the types of conduct that are criminalized in con-

temporary Western societies.

Liberty, on the other hand, is poorly served by the way Western societies

enforce the law against the conduct it criminalizes. À great deal of the conduct

that we respond to as crime would be better responded to in the ways advo-

cated by abolitionists—as troubles, problems of living, conflicts, and the like.

So we do not have to choose between feminists who want to criminalize rape

on the one side and deconstructionists or abolitionists on the other. We can.

and should, have our cake and eat it on this issue. That is, we can define con-

duct of a certain type crime, while preferring not to /abel it as crime or punish

— 71 —

it as crime in most of the cases where the conduct is detected. There 1s abso-

lutely no tension between participating in struggles to inject clarity into the

criminal law while problematizing particular instances of conduct that might

fit the detinition. In the first enterprise, the deconstructionist will be foe; in the

second, friend.

Like left realists, therefore, we think that republicans should take crime

seriously as a politically progressive concept. There is a progressive effect in

writing a book called Corporate Crime in the Pharmaceutical Industry that

upsets people in the industry because they do not think of the conduct

described as criminal. At the same time, the republican must struggle against

retributivists who want to treat crime as a master category: “If the conduct fits

the definition of crime, it must be treated as a crime”. As we have shown in the

book, this essentialism must be resisted because 1t has bad consequences for

dominion (Braithwaite and Pettit, 1990).

Nurturing Dialogue as an Alternative to the Criminal Process

Republicans believe in dialogue, reasoning with wrongdoers, seeking to

effect change by persuading criminals that the harm they are doing to others

should stop and be compensated. Partly this is about the belief that voluntary

change and internalization of moral commitment delivers superior protection

to the community (when 1t can be obtained) than coerced change. But 1it 1s also

about the value of dialogic, participatory social control itself within a mean-

ingful community. This 1s where liberals think republicans are utopian. Liber-

als think the communities do not exist in contemporary societies to make

dialogic social control a possibility. In this, the liberal 1s both myopic and

politically mischievous—myopic because liberals do not look beyond geo-

graphical neighbourhoods in their search for community, mischievous because

liberal ideology has been the major destroyer of community during the past

two centuries.

We follow MacIntyre (1984: 500-501)—and indeed Rawls (1993)—in

thinking that disagreement on basic ethical paradigms 1s frequently compatible

Wwith consensus on the moral status of specific practical questions. Our enter-

prise here 1s a case in point: it 1s easier to get large numbers of people to agree

that dialogue 1s à good thing than 1t is to get any substantial number of people

to agree with a republican or hermeneutical or fallibilist theory of dialogue.

We see this in the decisions of our highest courts, where the justices agree a lot

of the time, but rarely agree for reasons that are based in identical values or

common abstract philosophies. This 1S why deconstructionists can play such

havoc with their work. But if we take MacIntyre (1988: 364-5) seriously, nihil-

_ 72 —

ism 1s not justified in the face of such deconstruction. This 1s because dialogue

between incompatible traditions can see one tradition generate solutions for

the second in terms that are coherent within the second tradition. After all the

wooing and wondering among the justices, the supreme court decision, woven

together from slender and contrary opinion, can knit a fabric of communal

conviction that inspires civic purpose and practical problem solving. The out-

come can generally be regarded as sensible, but for several philosophically

incompatible reasons. In contrast, solitary criminal court judges who sentence

without any communal wooing and wondering about their remedy are at max-

imum risk of dishing up tomorrow's poison as today's medicine.

Pursuing Empowerment

For Habermas (1984), dialogic processes can only facilitate communica-

tive rationality to the extent that intersubjective reflective understanding 1s

unconstrained by deception and domination. For most of us, Habermas's aspi-

ration for uncoerced and undistorted dialogue among competent individuals 1s

utterly utopian. Of course ideals can be useful as yardsticks for measuring

progress even 1f they are never fully realisable. However, domination 1s such a

recurrently intractable fact of life, the destruction of power such an impossible

agenda * that republicans are advocates of the alternative strategy of checking

power with countervailing power (Braithwaite and Pettit, 1990: 87-88). Ayres

and Braithwaite (1992a) have argued for tripartssm—fully empowering public

interest groups as third players of the regulatory game with the state and the

firm—as a strategy of checking of power. Tripartism 1s conceived as a strategy

enabling the evolution of cooperation within negotiated regulation while pre-

venting the evolution of capture and corruption. That is, tripartism 1s seen as a

structural solution to the regulatory dilemma that the same conditions that

make for win-win solutions through the evolution of cooperation also make for

the evolution of capture and corruption.

Republicans believe in an enriched conception of citizenship. Freedom 1s

constituted by an active citizenry. But because entrenched centers of power,

particularly corporate power, often seek to crush active citizen groups, republ1-

cans must lobby for a republican state that proactively empowers and

resources citizen groups. Because of the way freedom 1s defined for the repub-

lican, poor and powerless citizens cannot enjoy dominion in a world of great

inequality of wealth and power. For this more fundamental reason, the politics

(4)

Destroying domination 1s an especially dismal agenda with corporate crime where

large corporate actors are by definition centers of power.

— 73 —

of citizen empowerment vis a vis corporate and state concentrations of power

is central to the republican agenda.

Seeing Multiple Motivations

and Contradictory Regulatory Effects

One reason republicans like to deal with problems through dialogue 1s that

they have a preference for dealing with actors as responsible citizens. This

extends to corporate actors, which the republican seeks to nurture as responsi-

ble corporate citizens. When we are dealing with responsible citizens, shame

and pride are seen as having enormous regulatory power. Indeed, reintegrative

shaming and the praise of virtue are seen as powerful in constituting responsi-

ble citizens (Braithwaite, 1989). The 18th century republicans were seen by

their Hobbesian critics as naive in this regard. For Hobbes (1949) and Hume

(1963), institutions could not be based on the hope that citizens would be

responsible. Rather, they should be designed for knaves.

Geoffrey Brennan

and James Buchanan (1985: 59) argue in The Reason of Rules for institutions

that economize on virtue. This they advocate because 1t is likely that the harm

inflicted by those who behave worst will not be compensated for by the good

of those who behave better than average. Against this, Ayres and Braithwaite

(1992b), like Goodin (1980), argue that the trouble with institutions that

assume people will not be virtuous is that often they destroy virtue.

Braithwaite’s own observations of business regulatory inspectors, as with

police on the streets, is that if they treat people as knaves, knavery is often

returned in full measure. Toni Makkai and Braithwaite, in an article called

‘“The Dialectics of Corporate Deterrence,” fail to find a general deterrence

effect for compliance of nursing homes with the law. What they conclude lies

behind this, based on their fieldwork, is a group of cases where deterrent

threats improve compliance and another group of cases where it makes things

WOTSE.

Some of the most brutish and nasty business people will put their best self

forward, their socially responsible self, if they are treated as responsible citi-

zens. Street level law enforcement, with either common or corporate crime,

seems to us about getting people who have multiple selves to put their best self

forward. But what about when they don't? Debate over punishment versus per-

suasion for dealing with corporate criminals has proceeded on both sides from

a much too static analysis. The argument 1s that punishment is better than per-

suasion, or vice versa. Alternatively, the argument is the optimistic vision that

we can pick which are the right cases for medicine and which for poison. We

reject all three types of argument in favor of a dynamic strategy. This 1s: first

persuasion (try to get the regulated actor to put their responsible self forward);

— 74 —

second, when citizenship fails (as it often will) shift to a deterrent strategy;

third, when deterrence fails (as it often will for reasons detailed elsewhere:

Ayres and Braithwaite, 1992b; Makkai and Braithwaite, 1992), shift to inca-

pacitation (e.g. corporate capital punishment). We would think 1t terribly crude

if debates about the international regulation of states were transacted in the

discourse of the optimal level of military threats. We expect, and get, even

from our most simple minded political leaders, more subtle dynamic strategiz-

ing about the circumstances in which one shifts from persuasion to deterrent

threats to incapacitative strikes.

In international relations, as in business-government relations, the best

possible world 1s one where actors see themselves as having profound respon-

sibilities for peaceful problem solving. The republican must aspire to nurturing

responsible citizenship in pursuit of such a better world. However, the obliga-

tion of the republican to be vigilant on behalf of the dominion of the powerless

requires that clear signals be given to business of the willingness to escalate to

tougher and tougher law enforcement should there be abuse of the trust we

expect of responsible citizens. Displaying (rather than threatening) an enforce-

ment pyramid with a capacity for escalation to awesome incapacitative meas-

ures motivates cooperative regulation at the base of this pyramid (Ayres and

Braithwaite, 1992a: Chapter 2).

AN ACCOUNTABILITY MODEL

FOR ORGANIZATIONAL CRIME

We were asked with this paper to give special emphasis to organizational

and environmental problems. Brent Fisse and Braithwaite have developed an

accountability model for organizational crimes (Fisse and Braithwaite, 1994),

which can be strongly justified in the republican terms outlined above, though

one does not have to be a republican to find value in the model. Among the

problems that the accountability model seeks to solve are:

|. The slide away from individual responsibility for organizational crimes

when it is so much easier and more efficient simply to prosecute the corpora-

tion.

2. The failure to do anything about the responsibility of individuals and

collectivities for environmental and other harms where that responsibility falls

short of legal standards of responsibility.

3. The tendency for prosecutors when they do charge individuals for

organizational crimes to oversimplify in a way that artificially concentrates

blame in one or two sets of hands. In this way, the traditional criminal process

conduces to scapegoating, usually of more junior employees.

— 75 —

4. The tendency for large organizations to have private justice systems

grounded in different conceptions of responsibility from those provided for in

the criminal law, thus causing a clash between culture and law (and therefore

injustice) when the public justice system takes over from the private justice

system.

5. The failure of the criminal process to give proper weight to values that

may be more important to dominion than punishment—compensation, man-

agement restructuring, industry restructuring, reform of industry self-regula-

tion systems, reform of government regulations that failed to prevent the

offence, preventive staff training, corporate compliance systems, industry-

wide compliance education. Repeatedly, the criminal justice system punishes

organizational crime without paying attention to what must be done to prevent

recurrence.

It is hard to summarize a book in a page or two, but here 1s the essence of

the Accountability Model for responding to these and a number of other prob-

lems. The guiding principle of the Accountability Model 1s that all who are

responsible for a serious corporate offence should be held responsible,

whether they be individuals, corporations, subunits of corporations, gatekeep-

ers such as auditors, or government regulators. But the ideal of holding every-

one responsible in proportion to their degree of responsibility does not mean

holding them criminally responsible because very few of the responsible

actors will be criminally culpable. Recklessness, negligence, laziness, dishon-

esty and weakness are among the many forms that sub-criminal responsibility

can take. Moreover, for most of those who are criminally responsible, à parsi-

monious reluctance to invoke criminality will usually advance dominion.

[magine we have a company that turns on a tap releasing substantial

amounts of toxic waste into a river in the dead of night—a prima facie case of

serious corporate criminality exists. What the accountability model proposes 1s

a very short trial that simply proves the actus reus of the corporate offence—

the waste came from the factory and the pollution resulted. No attempt is made

to prove corporate intent or negligence; no attempt is made to identify the cul-

pable individuals. Moreover, under the model, proving the actus reus of the

corporate offence to a civil standard (on the balance of probabilities) is suffi-

cient. Then the court invites the company to conduct (possibly with the assist-

ance of outside counsel) a rigorous internal enquiry into why the pollution

occurred. Who turned the tap? Who approved this action? Who turned a blind

eye to it?’ Where did corporate compliance systems fall down? Where was

employee training wanting’ Was there something about the structure of the

organization, or of the industry, that enabled the pollution to occur? Was there

something that external gatekeepers (e.g. environmental auditors) or regulators

— 76 —

might have done to prevent the pollution? Was there a technology capable of

being adapted to prevent such an incident?

Then the company would prepare a plan of action that was responsive to

the problems diagnosed in the self-investigation report. Which executives of

the company would be disciplined? Who would be retrained? What new com-

pliance systems would be put in place? What compensation would be volun-

teered? Would new gatekeepers be installed? What kind of organizational

restructuring would occur? What new corporate policies or new standard oper-

ating procedures would be put in place? What R and D investments would be

made in environmental protection technology? What follow-up would be

implemented to monitor whether all of these reforms effect change in the

organization's environmental performance” Who would be responsible for the

monitoring and the reporting back to the court or the regulatory agency on the

results of the monitoring program?

À republican court receiving such a report can then make the following

judgement. Can we do better by dominion by withdrawing the axe the court is

holding over the corporate head, by allowing the company to get on with this

program of corporate reform and internal discipline under its private justice

system. Or 1s the report a white-wash, an insufficiently strong response to a

deep problem? Îf so, 1s it better to send them back to do it again or to let the

axe fall, to proceed with a fully fledged criminal trial against the corporation

and perhaps several further criminal indictments against responsible individu-

als?

Readers will have many questions about the feasibility and desirability of

effectively decriminalizing much law enforcement against serious corporate

wrongdoing in this way. Brent Fisse and Braithwaite try systematically to

address these concerns. Moreover, the concerns that people have about such a

radical strategy are also being explored through praxis in Australian corporate

regulation that is influenced by their model (see Braithwaite, 1992). All we

hope to have attempted to illustrate in the brief treatment here 1s that with cor-

porate regulation, there are many shades of decriminalization, including forms

of decriminalization that result in more demanding control of organizational

crime than the criminal law traditionally accomplishes. Preliminary Australian

praxis with the model has delivered the dismissal of chief executive officers

who always would have enjoyed protection from criminal prosecution, com-

pensation payouts beyond what courts could have enforced and a panorama of

creative organizational reforms, even to the point of substantial restructuring

of one of Australia’s largest industries (see Braithwaite, 1992). These are some

of the senses in which declining to enforce the criminal law against conduct

that is clearly criminal can serve dominion well.

— 77 —

Needless to say, such radical reform 1s troubling to retributivists who

believe in equal punishment for equal wrongs. We seek to show in Not Just

Deserts that there is an intriguing paradox of decriminalization here. This 1s

that philosophies that give primacy to just deserts, because of certain sociolog-

ical facts about the world, result in desert being dispensed where it is least

deserved (on junior scapegoats, for example). Parsimonious republican pun-

ishment, we conclude, can result in more equitable punishment practices in the

face of these sociological facts, even though it does not set out to achieve

equal punishment as its primary objective.

CONCLUSION

Drawing on our previous work, in this paper we have described the foun-

dation of a republican political theory as choosing to do that which will max-

imise dominion. Dominion is a republican conception of freedom that puts a

premium on the public securing of objective and subjective assurance against

interference. While republican theory supplies no algorithm for ascertaining

what should be criminalized and decriminalized, it sets a framework for

resolving these questions. Republicans put great store in dialogic institutions,

including courts, so long as courts can be reformed to be more open, deprofes-

sionalized, so that less constrained dialogue among citizens might be enabled.

We argue within this framework that republicans should support fairly wide-

spread decriminalization, while upholding criminalization in areas where new

technologies and new economic institutions pose new threats to dominion.

Republicans share with left realists a commitment to taking crime seriously;

we are minimalists rather than abolitionists with regard to criminalization. The

Accountability Model for corporate offenders 1s one of the modalities of dia-

logue that can constitute an alternative to the criminal process while putting

more bite and effectiveness into law enforcement than has been achievable

under the criminal trial paradigm.

REFERENCES

Ayres, Ian and John Braithwaite 1992a. Responsive Regulation: Transcending the

Deregulation Debate. Cambridge: Cambridge University Press.

Ayres, Ian and John Braithwaite 1992b. Designing Responsive Regulatory Institutions.

The Responsive Community 2: 41-47.

Braithwaite, John 1989. Crime, Shame and Reintegration. Cambridge: Cambridge Uni-

versity Press.

Braithwaite, John 1992. ‘“Corporate Crime and Republican Criminological Praxis”

Paper to Queens University Conference on ‘““Corporate Crime: Ethics, Law and the

State”.

__ 78 —

Braithwaite, John 1993. ‘“Inequality and Republican Criminology”, in J. Hagan and R.

Peterson (eds.), Crime and Inequality, Palo Alto: Stanford University Press.

Braithwaite, John and Philip Pettit 1990. Not Just Deserts: À Republican Theory of

Criminal Justice. Oxford: Oxford University Press.

Brennan, Geoffrey and James M. Buchanan 1985. The Reason of Rules: Constitutional

Political Economy. Cambridge: Cambridge University Press.

Feinberg, Joel 1986. Harm to Others, Volume !. Oxford: Oxford University Press.

Fisse, Brent and John Braithwaite 1994. Crime, Accountability and Corporations. Syd-

ney: Cambridge University Press.

Goodin, Robert E. 1980. ‘“Making Incentives Pay” Policy Sciences 12: 131-145.

Gross, Hyman 1979. À Theory of Criminal Justice. New York: Oxford University Press.

Hobbes, T. 1949. De Cive. New York: Appleton-Century-Crofts.

Hume, David 1963. “Of the Independency of Parliament.” Essays, Moral, Political and

Literary, Vol. 1. London: Oxford University Press.

MacIntyre, Alasdair 1984. “Does Applied Ethics Rest on a Mistake?” The Monist 67:

498-513.

MacIntyre, Alasdair 1988 Whose Justice? Which Rationality? Notre Dame, Indiana:

University of Notre Dame Press.

Makkai, Toni and John Braithwaite 1992. “The Dialectics of Corporate Deterrence.”

Unpublished manuscript.

Mill, John Stuart 1910 edn. On Liberty, London: Dent.

Pettit, Philip 1993a. “Negative Liberty, Liberal and Republican”, European Journal of

Philosophy 1: 15-38.

Pettit, Philip 1993b. “Liberalism and Republicanism”, Australian Journal of Political

Science, Special Issue, 28: 162-89.

Pettit, Philip with John Braithwaite 1993. “Not Just Deserts, Even in Sentencing.” Cur-

rent Issues in Criminal Justice 4: 225-39.

Rawls, John 1993. Political Liberalism, New York: Columbia University Press.

Sadurski, Wojciech 1985. Giving Desert its Due. Dordrecht: Reidel.

Sunstein, Cass 1988. “Beyond the Republican Revival”, Yale Law Journal 97: 1539-

1590.

Wilson, Paul R. 1978. “What Is Deviant Language”?” in PR. Wilson and J. Braithwaite

(eds.), Two Faces of Deviance: Crimes of the Powerful and Powerless. Brisbane:

University of Queensland Press.

RESUME

L'une des questions centrales qu'une théorie républicaine de la justice

pénale peut aider à affronter est le choix des conduites qu'il convient de crimi-

naliser ou de décriminaliser. Une conduite ne devrait être criminalisée que si,

ce faisant, le dominion, une conception républicaine de la liberté, est accru. Un

tel raisonnement inspire au républicain une décriminalisation substantielle

dans les sociétés occidentales. Prenant bien le crime au sérieux, les républi-

cains estiment que pas mal de conduites que nous traitons comme des crimes

recevraient une meilleure réponse s'ils étaient, dans la voie tracée par les aboli-

— 79 —

tionnistes, envisagés comme des troubles, des problèmes existentiels, des con-

flits appelant un dialogue. Il n‘y a pas de contradiction à participer à des

combats progressistes visant à clarifier la protection juridique de la femme

contre le viol et celle de l'environnement contre sa spoliation, tout en déclinant

la compétence du pénal à régir certaines catégories de conduites.

SUMMARY

Among the central questions that a republican theory of criminal justice

shows how to answer 1s what conduct should be criminalized and decriminali-

zed. Conduct should only be criminalized 1f criminalization increases domi-

nion—a republican conception of liberty. This motivates the republican to

support substantial decriminalization in Western societies. While republicans

take crime seriously, they agree that a great deal of the conduct we respond to as

crime would be better responded to in the ways advocated by abolitionists—as

troubles, problems of living, conflicts, matters for dialogue. There 1s no conflict

between participating in progressive struggles to inject clarity into laws that pro-

tect women from rape or the environment from despoilation while declining to

treat as crime particular instances of conduct that might fit the definition.

RESUMEN

Una de las cuestiones centrales que pueden ser enfrentadas gracias a una

teoria republicana de la justicia penal, es la de la elecciôn de las conductas que

conviene criminalizar. Una conducta deberia ser criminalizada sôlo si, al

hacerlo, el dominion, una concepciôn republicana de la libertad, es acentuado.

Un razonamiento de esa naturaleza inspira, en los republicanos, una discrimi-

nalizaciôn substancial en las sociedades occidentales. Considerando el crimen

seriamente, los republicanos estiman que muchas conductas que son tratadas

como crimenes recibirfan una mejor respuesta si, siguiendo la via trazada por

los abolicionistas, éstas fueran consideradas como transtornos, problemas

existenciales, conflictos que Ilaman al diâlogo.

Participar en combates progresistas que persiguen la protecciôn juridica

de la mujer contra las violaciones y del medio ambiente contra su expoliaciôn

no es contradictorio con la competencia de la justicia penal para regir ciertas

categorias de conductas.

— 80 —

The enigma of Japan as a testing ground

for cross-cultural criminological studies

Setsuo MIYAZAWA

TABLE OF CONTENTS

| The Enigma of Japan

2.Methodological Purism and the Second-Best Method

3.Theory Testing with Data from a Different Culture

4 Ethnographic Studies of a Small Number of Cultures

1) General Issues

2) Reintegrative Shaming and Benevolent Paternalism

5S.Theory Testing with Data from a Large Number of Different Cultures

1) The Disjuncture between Single Country Analysis

and Cross-National Analysis

2) Disaggregated Crime Rates and the Non-Cultural Bases

of Cultural Rhetoric

3) The Limited Explanatory Power of Urbanization

and Economic Development

4) Anomie and the Culture of Endurance

S) Bonds to the Conventional World

and the Structural Commitment to Conformity

6) The Measurement of the Dependent Variable

6.Conclusion

Bibliography

— 81 —

1. THE ENIGMA OF JAPAN

This plenary session focuses on the prospects for cross-cultural and cross-

societal studies on crime and criminalization . Both of the main speakers of

this session, Matti Joutsen and Eugenio Raul Zaffaroni, have presented com-

prehensive papers on this topic.

Joutsen “ listed three reasons to encourage comparative criminological

research : (1) building theories with wider applicability, (2) mutually learning

policy innovations and insights, and (3) assisting countries without strong

criminological traditions in their efforts to build criminology as an academic

discipline and design criminal justice systems. He spent most of this time on

the third point, particularly with regard to the Central and Eastern European

countries. This emphasis on the function of comparative criminology in inter-

national cooperation might reflect his responsibility as a high-ranking official

of the United Nations Crime Prevention and Criminal Justice Programme. His

emphasis is most appropriate under the general theme of this congress, “Socio-

Political Change and Crime : À Challenge of the 21st Century”, and nicely fits

the context of the congress, which is taking place in one of the Central and

Eastern European countries.

[ should stress the need for international cooperation and assistance

through non-governmental organizations such as the International Society for

Criminology because governmental assistance could easily be manipulated by

political considerations and could take a chauvinistic stance of “teaching les-

sons”’ to less developed countries. This must particularly be so when the assist-

ing country is a dominant political, military, or economic power and has

relatively favorable crime conditions, such as Japan. Nonetheless, this func-

tion of comparative criminology certainly deserves much attention.

Zaffaroni 3emphasized the need to take into consideration the different

ways in which criminal law is legislated and enforced in different countries

(1)

About the author : Professor of Law at Kobe University; Ph.D. in sociology, Yale Uni-

versity; J.S.D., Hokkaido University. An earlier version of this paper was presented as a dis-

cussion at a plenary session entitled ‘“’The Prospects for Cross-Cultural and Cross-Societal

Research on Crime and Criminalization” at the 11th International Congress on Criminology,

August 25, 1993, in Budapest, Hungary. Main speakers were Matti Joutsen of the Vienna

International Center of the United Nations and Eugenio Raul Zaffaroni of the National Uni-

versity in Buenos Aires. The Japan Foundation provided a travel grant. David T. Johnson, a

Ph.D. student in the Jurisprudence and Social Policy Program at the University of California,

Berkeley, and a Fulbright student at Kobe University, kindly edited this paper.

(2)

Matti Joutsen, “The Prospects for Cross-Cultural and Cross-Societal Research on Crime

and Criminalization”, unpublished paper (1993).

— 82 —

even in etiological studies of criminal behavior. This should be particularly

true in cross-cultural criminological studies which deal with crime data from a

large number of countries which might have radically different crime defin1-

tions and law enforcement policies. Moreover, even when legislation or policy

adopted in one country has been effective in crime prevention, other countries

should not adopt 1t if it seriously violates human rights.

Thus, our main speakers, in a sense, have provided introductions to a book

on comparative criminology. What might follow such introductions would be

several chapters, each of which focuses on selected issues from tropics laid out

in the introduction. What I am going to do is write one such chapter from the

perspective of a Japanese criminologist.

As the title of this session refers to both “crime” and “criminalization”’,

ideally I should not limit my discussion to explanations of criminal behavior,

but should also deal with more socio-legal issue such as different reactions to

white collar crimes or environmental destruction — that is, criminal legislation

and enforcement of criminal law against the powerful. However, considering

that neither Joutsen nor Zaffarroni have spent much time on the methodolog1-

cal and theoretical issues of comparative research on criminal behavior, I will

focus on them.

Thus, the purpose of this paper is to discuss methods and hypotheses of

empirical comparative research on criminal behavior from the perspective of a

Japanese criminologist. Throughout this paper, | will use the terms ‘’cross-cul-

tural” and ‘“cross-national” interchangeably. While cultural boundaries are not

necessarily the same as national boundaries, units of analysis are more likely

to be nations, rather than cultures in their generic sense.

Karel van Wolferen, a Dutch journalist living in Japan, wrote a best-sell-

ing book about politics in Japan titled The Enigma of Japanese Power (1989).

With an apparently contradictory combination of tremendous economic devel-

opment and a consistently low crime rate, lower than those in most other

developed countries, Japan has been an enigma for criminologists, too. For

instance, in 1990, the number of Penal Code offenses per 100,000 people in

Japan was only 1,324, compared to 8,630 notifiable offenses in England and

Wales. 7,108 Straftat in Germany, and 5,820 Crime Index offenses in the

United States (traffic-related offenses are excluded for all countries; Japanese

Justice Ministry Research and Training Institute, 1992 : 23). Therefore, in one

(3)

EFugenio Raul Zaffaroni, “Perspectivas de las investigaeiones internacionales sobre la

delincuencia y la conducta delictiva”, Annales Internationales de Criminologie, Vol. 31, Nos.

| & 2 (1993), 61-76.

__ 83 —

of the most sophisticated quantitative research studies in comparative crimi-

nology, Archer and Gartner (1981 : 90) wrote that “Japan stands out as an

anomaly”. It 1s fair to say that Japan will provide an ideal testing ground for

any approach in comparative criminology.

I will divide my discussion into three parts, each representing a different

type of comparative research. First, I describe testing criminological theories

with data from a culture or country which 1s different from those where the

given theories originated. Second, ! mention qualitative research focusing on

only two or three countries. Third, [ discuss quantitative research involving a

large number of cultures or countries. My conclusion will be that comparative

criminology needs all three types of research.

Before discussing these three, however, a comment is required with

regard to the claim that comparative criminology 1s extremely difficult, if not

totally impossible, because of cultural relativism.

2. METHODOLOGICAL PURISM

OR THE SECOND-BEST METHOD

Beirne (1983) outlines epistemological cautions to comparative criminol-

ogy from the perspective of cultural relativism. Cultural relativism refers to

the differences among cultures in definitions, perceptions, and reactions to

crime. The problem 1s the possibility of a comparative criminology which pro-

duces generalizable findings while maintaining this cultural relativism.

Beirne identifies three types of comparative criminology. The first type 1s

called the method of agreement. This type of comparative criminology tries to

find commonalities among a large number of different cultures, applies ethno-

centric theoretical concepts which originated only in one of them, and, hence,

ignores cultural relativism.

The second type 1s called the method of difference. This type of compara-

tive criminology focuses on anomalous cases which cannot be explained by

existing general theories. Criminologists of this mode emphasize factors

unique to the given culture and try to understand the given culture from an

insiders perspective. However, they will draw general conclusions, even

though their empirical basis 1S very narrow.

The third type of comparative criminology respects cultural diversity and

is called methodological relativism. This type of criminologist tries to develop

concepts or measurement instruments which are less culture-bound. They are

methodologically the most sophisticated, but their approach totally rearranges

natural phenomena by artificial concepts.

__ 84 —_

So, how should we design a cross-cultural study ? Beirne suggests the fol-

lowing five rules :

(1) Crime in different cultures can be compared only 1f the definition and

meaning of criminal behavior in these cultures are the same.

(2) An event p (e.g., urbanization) 1s not the true cause of rising crime

rates 1f it occurs when rising crime rates do not occur.

(3) p is not the cause of rising crime rates if it does not occur when rising

crime rates do occur.

(4) p is not necessarily the cause of rising crime rates 1f one or more other

variables (À, or À, B. n) 1s present in the same circumstances as p.

(5) For the generalization “p causes rising crime rates” to be intelligible, it

must be explained by a theory. (Beirne, 1983 : 34-35)

In spite of his profound argument about cultural relativism, Beirne's prac-

tical solution 1s conventional. Analysis will be limited to a very small number

of cultures with very similar cultural heritages, while causal relationships will

be identified by a primitive, intuitive process of inference.

However, cultural relativism logically exists even among members of the

same culture. This is what we learned from ethnomethodology and other phe-

nomenological approaches in sociology. In the strongest version of phenome-

nological sociology, search for generalizable knowledge itself would be

abandoned. What we should and can do 1s simply to live our own experiences.

Nevertheless, even scholars who are close to such approaches rarely go

that far. This 1s a natural since phenomena which need understanding and

explanation exist. Therefore, various ethnographic methods of data presenta-

tion have been proposed. Good examples are the ‘‘thick description” of Geertz

(1973 : 6) and the “objectification” of Cicourel (1976 : chapter 1), which I fol-

lowed in my own observational study of Japanese police (Miyazawa, 1992).

Therefore, as long as we are confident that we understand insiders' perspectives

of different cultures, we need not hasitate to engage in comparative analysis.

Moreover. if we try to make causal inferences, there 1s no reason to tie our

hands so that we will not be able to use more sophisticated statistical tech-

niques. There are, of course, problems, such as underreporting and the unavail-

ability of same indices (Archer and Gartner, 1984 : chapter 3) as well as

cultural diversity. However, 1f we restrict quantitative analysis for the sake of

methodological purism, the political consequences will be dangerous because

governments will continue to use, misuse, and manipulate criminal statistics

for their own political purposes. Only independent criminologists who have

been trained in statistical analysis can challenge governmental interpretations

__ 85 —

of statistics and informs citizens of the methodological limitations of official

conclusions. Therefore, scholars should not refrain from statistical analysis,

even 1f the data are only second-best (Miyazawa, 1990a : 135). I shall return to

this issue later in my discussion.

Furthermore, ! do not believe that the method of agreement and the

method of difference are incompatible. Criminologists who are engaged in

quantitative analysis involving a large number of countries are working with a

large sample exactly because they want to obtain a wide range of variation. Ît

Is wrong to assume that they are interested only in commonalities among

countries. The question is whether we can have a set of variables for which

different countries can take extremely different values. In other words, we can

treat an anomaly or an exception, such as Japan, as a case which simply takes a

very different value for a universally applicable variable for which most other

cases take more or less the same value. If we introduce a large number of such

variables, we will be able to analyze anomalous cases in terms of general theo-

ries, rather than using ad hoc explanations (Inverarity, Lauderdale, and Feld.,

1983 : 31). Then we need to add a deeper ethnographic understanding of the

societies which are compared. I shall take up these issues later in my discus-

SION.

Let me now turn to each of the three types of comparative criminological

research.

3. THEORY TESTING WITH DATA

FROM A DIFFERENT CULTURE

First, one way test theories which originated in one culture, such as the

United States, with data from a different culture, such as Japan. Shelley (1981 :

XX1) states that “Instead of focusing on analyses done in one country or tests

of theories based on the limited experience of a single society, researchers

should make comparisons across societies and historical periods.” In other

words, studies with data from a single country do not qualify as comparative

criminology. I believe, however, that exactly because most theories originated

in one country and, hence, are ethnocentric, testing a theory with data from a

different culture should be encouraged as an integral part of the overall effort

of comparative criminology, as a preliminary step in the effort to develop a

theory which avoids ethnocentrism.

Ît 1s easy to take à nationalistic position that the crime and criminal justice

of each culture require a distinctive set of concepts, variables, and propositions

in order to understand and explain their distinctive characters. On the other

hand, however, there 1s no reason to prohibit ourselves from using the fruit of

— 86 —

scholarly efforts which have already accumulated, since thereby we will be

able to go much further.

Adopting this perspective, ! have organized sessions called ‘Testing The-

ories with Japanese Data”’ at recent annual meetings of the American Society

of Criminology. Papers presented there tested the stable criminality hypothesis

(Harada, 1991), deterrence theory (Matsumura and Takeuchi, 1992), control

theory (Tanioka, 1992), and differential opportunity theory (Tsutom1, 1991;

Yuma, 1992), and applied the technique of event history analysis (Harada,

1992) with data from Japan, all employing sophisticated quantitative methods.

| have expanded the scope of my project to include other Asian countries and

have organized a session called ‘’Testing Theories with Asian Data” at this

International Congress on Criminology. Colleagues from Taiwan, Japan, and

Germany will present papers ”.

l am not doing this because I believe that Western-made theories are supe-

rior to Asian-made theories. [ am doing this because I recognize that currently

available theories mostly originated in Western countries, and because I

believe that they need modification in order to be applied in comparative

research. My ultimate hope 1s that my Asian colleagues will soon propose gen-

eral theories that apply to comparative criminological research.

4. ETHNOGRAPHIC STUDIES

OF A SMALL NUMBER OF CULTURES

I will defend the value of the quantitative analysis of data from a large

number of countries in the next section because only such studies will make 1t

possible to carry out systematic examination of the relative impact of a large

number of variables. However, if such a quantitative analysis 1s carried out by

a criminologist who does not know anything about the subject countries, such

analysis may be superficial, and conclusions may be drawn which do not

reflect reality in the concerned countries. Therefore, before designing large

scale quantitative studies, ethnographic studies of a small number of cultures

or countries should be accumulated.

(4)

Chuen-Jim Sheu, “The effect of Capital Punishment on Crime Rates : An Empirical Test

of General Deterrence Theory in Taiwan”, Haruo Nishimura, ‘“Explaining Delinquency

among Senior High Students : An Efficacy of Western Theories upon the Japanese Devi-

ance”, Ichiro Tanioka, “The Test of Web of Informal Control' Theory of Delinquency in

Japan : Revisited”, Bunri Tastuno, *Employment and Delinquency : The Case of Japanese

Juvenile Parolees”, and Joachim Kersten, “Crime Control in Japan

Policing and Shame

Revisited”.

_ 87—

The smallest and most primitive of such comparative ethnographic studies

are ones in which a researcher carries out field work in a foreign country and

compares its findings with patterns in his or her own country. Good examples

of such ethnographic studies of Japan are the works on Japanese police by

Ames (1981) and Bayley (1976).

As Araki (1985; 1988) commented, command of the language of the sub-

ject country is crucial in such ethnographic studies. Unless the foreign

researcher has an equally competent collaborator from the subject country as

in the case of the study on political police by Katzenstein and Tsujinaka

(1991)5, the researcher himself or herself must understand the language.

Ames clearly had an advantage in this sense, and his study presented a more

nuanced picture of Japanese police than did the study by Bayley 6,

In this regard, the enormously influential book, Crime, Shame and Reinte-

gration (1989) by Braithwaite deserves special attention since it is probably

the first time in which Japan provided inspiration for the development of a

major criminological theory which can be applied in comparative criminologi-

cal studies.

For Braithwaite, “/s/haming” means “all social processes of experiencing

disapproval which have the intention or effect of invoking remorse in the per-

son being shamed and/or condemnation by others who become aware of the

shaming.” “Most shaming is neither associated with formal punishment nor

perpetrated by the state”, but rather is done ‘“by individuals within interde-

pendent communities of concern.” (Braithwaite, 1989 : 100) “Reintegrative

shaming” 1s “shaming which 1s followed by efforts to reintegrate the offender

back into the community of law-abiding or responsible citizens through words

or gestures of forgiveness or ceremonies to decertify the offender as deviant”,

and ‘‘is not distinguished from stigmatization by its potency, but by (a) a finite

rather than open-ended duration which is terminated by forgiveness; and by

(b) efforts to maintain bonds of love or respect throughout the finite period of

suffering.” (Braithwaite, 1989 : 100-101)

(5)

The most successful and sophisticated collaborative work in the sociology of law 1s

Hamilton and Sanders (1992). They applied techniques of experimental social psychology to

large samples from Japan and the United States in order to compare central tendencies in

responses to questions about responsibility and punishment. Their Japanese collaborators

included leading legal sociologists, criminologists, and à statistician.

(6)

However, Bayley carried out a follow-up study, and the second edition of this book

(Bayley, 1991) 1s clearly an improvement. In the second edition, he 1s more sensitive to

human rights issues in the investigation process and pays more attention to the socio-eco-

nomic determinants of the low crime rate, although he still argues that police and other crim-

inal justice agencies also contribute to the low crime rate.

__ 88 —_

Braithwaite describes Japan as a society where shaming 1s applied in an

optimal way, and where shaming 1s strong enough to prevent repeat offenses

but not too strong to produce secondary deviance through stigmatization.

Braithwaite (1989 : chapter 8) discusses how his theory can be tested with var-

ious methods, including ethnographic, historical research, survey research,

macrosociological studies based on official statistics, and experimental

research designs . He argues that “[i]n Japan ethnographic work is thus

needed which explicitly sets out to assess whether reintegrative shaming 1s

something that Japanese families, schools, corporations and criminal justice

agencies actually do.”

[ agree with him with regard to the need for ethnographic work about

Japan. However, as a hypothesis, I have a very different interpretation about

the way deviants are treated in Japan. Companies and schools are major organ-

izations of informal social control in contemporary Japanese society, and they

can be characterized by their extremely harsh treatment of members who defy

the existing power structure and social arrangements. Such members are sim-

ply harassed or expelled. Ît is more accurate to say that Japanese people con-

form because they know that conformity will be highly rewarded while non-

conformity costs enormously.

For instance, it 1s a cliche to say that Japanese people go to a Shinto shrine

on New Year's Day, to a Christian church for weddings, and to a Buddhist tem-

ple for funerals, as evidence of the religious tolerance of Japanese society.

However, this argument confuses ignorance with tolerance. In Japan, being

ignorant or indifferent about religion 1s a norm enforced by enormous social,

political, and even legal pressure. Those who wish to assert their religious alle-

giance other than Shintoism or Buddhism are severely repressed, as in the case

of Christian wives of deceased Self Defense Force members who tried to pre-

vent the enshrinement of their husbands in a Shinto shrine which was built to

honor prewar military leaders, or as in the case of high school students who

refused to take lessons in martial arts for religious reasons and got expelled

from the school.

One exception may be company executives who admit moral responsibil-

ity in ritualistic shaming, leave their job, escape legal punishments for them-

selves and their companies, and receive retirement bonuses or a second job.

However, personally they do not feel remorse, and their companies continue

business as usual.

(7)

Hamilton and Sanders (1992) combined survey methods with an experimental research

design. Since their topics are responsibility and punishment, which appear to be related to

shaming, their research design might be of interest to Braithwaite if he intends to carry out

his own research in Japan.

__ 89 __

Braithwaite (1989 : 61-65) cites examples of reintegrative shaming prac-

ticed by Japanese police which were reported by Bayley (1976). However, on

the basis of my own research (Miyazawa, 1992), 1 do not believe that police

are more interested in reintegrating the suspect into society than in finding evi-

dence to justify longer detention and heavier penalties, nor that police actually

provide assistance to the suspect to make it easier for him or her to return to

normal life. Other criminal justice agencies are not very reintegrative, either.

For instance, the recidivism rate of former prison inmates within three years

after release from prison after fully serving their terms is reported as 57%

(Foote, 1992 : 365). Indeed, Kato (1992 : 79) says that “[i]n Japanese prison

practice there is no meaningful treatment, or real therapeutic activity. Work 1s

forced labour and at the same time serves the security of the institution” (com-

pare this with an official history of criminal justice policies in Japan in Shikita

& Tsuchiya, 1990). I agree. In 1991, only 2.8% of the inmates were receiving

vocational training, and only 1.2% participated in educational programs (Japa-

nese Justice Ministry Research and Training Institute, 1992 : 131). Moreover,

and as I have discussed elsewhere (Miyazawa, 1991), the government does not

operate halfway houses, and privately-run halfway houses have been declining

because of financial difficulties. 1 do not believe that Japanese correctional

agencies are provided with resources sufficient to provide reintegrative assist-

ance to the extent which 1s implied by Braithwaite's description. Furthermore,

when private halfway houses want to expand or just renovate their facilities,

they face extremely hostile local opposition. This would not happen in a coun-

try characterized by reintegrative shaming.

The same line of argument, heavily influenced by the family model of

criminal justice presented by Griffith (1970), has recently been presented in a

major article written by Foote (1992). Foote provides a detailed description of

apparently lenient treatment of criminals by criminal justice agencies, includ-

ing the release of minor offenders by police, prosecutorial discretion to not file

indictments, and judicial decisions which frequently suspend execution of sen-

tences or else give relatively short prison terms. Foote characterizes these pat-

terns as ‘“‘benevolent”. He, however, emphasizes that such benevolent

treatment is granted only as a result of official discretion, not as a result of

negotiation between the authority and the accused. In this sense, he character-

izes the Japanese system as “paternalistic”.

The problem 1s the historical and the contemporary reality of this pur-

ported ‘“benevolence’’. For instance, the judicial system of each country may

have developed a going rate of sentences, depending on its resources, crime

rates, and other factors. Therefore, five years of imprisonment may be quite

heavy in one country, while it may be quite light in another. We need to under-

stand such differences.

— 90 —

As Foote (1992) himself describes in detail, early release by police, non-

prosecution by prosecutors, and the frequent use of suspended and shorter sen-

tences in Japan were all introduced as measures to alleviate the financial bur-

dens of the government when it was still striving to establish itself under

pressures from the imperial superpowers of those days. Like the failures to

increase professional probation officers or to establish public halfway houses,

and the recent partial privatization of prison industry (Miyazawa, 1991), those

measures represent the government's failure to make a significant investment

in criminal justice. However, since the crime rate has been low and stable due

to favorable social and economic factors, crime and criminal justice have

never become major political issues, the above-mentioned measures stabilized,

and the positivist school of criminal law provided their theoretical justifica-

tions. Moreover, while the rhetoric of rehabilitation 1s still used by criminal

justice officials (and they may be serious in their proclamations of such a phi-

losophy). they are not given sufficient resources to put into practice their ideals

for rehabilitating criminals.

So let us return to Braithwaite. Since he uses Japan more as an 1llustration

than as a test or proof of his theory, that shaming in Japan is not reintegrative

does not necessarily refute his theory. However, since Japan clearly has pro-

vided à strong inspiration for his theory, ethnographic studies comparing Japa-

nese reality to that in other countries may affect and perhaps undermine the

persuasiveness of his theory (on this point, also see Kersten : 1993).

[ do not mean that an insider's interpretation 1s necessarily more true than

an outsider's interpretation. Outsiders may be more sensitive to aspects of the

given culture which insiders simply take for granted. In fact, pathbreaking

studies about many aspects of Japanese society have been done by outsiders.

Nonetheless, I repeat my general point that à theory to applied in cross-cultural

studies should be supported with careful ethnographic studies of key countries.

5. THEORY TESTING WITH DATA

FROM À LARGE NUMBER

OF DIFFERENT CULTURES

(1) The Disjoncture between Single Country Analysis

and Cross-National Analysis

À theory which works well in explaining individual or interregional varia-

tions within a single country might not work well in explaining cross-cultural

variations. At the same time, à theory which fails to explain individual or inter-

— 91 —

regional variations within a single country may still explain cross-cultural var-

lations.

An example of the first case seems to be the routine activities theory

(Cohen and Felson, 1979). This theory holds constant the motivation to com-

mit crime and explains occurrences of crime in terms of the availability of

crime targets. The theory has been more or less supported not only in the

United States, but also in Japan (Nishimura, 1986; Tanioka & Glaser, 1991).

However, | do not think it possible to explain extremely wide gaps between

Japan and other developed countries without adding a theory to explain differ-

ences in the prevalence of motivation to commit crime (Miyazawa, 1990a :

135; 1990b : 45). It 1s difficult to believe, for instance, that Japan has far

smaller amount of consumer goods suitable for property offenses or far

smaller number of people carrying money suitable for robberies compared to

other developed countries.

An example of the second case 1s the cultural orientation to violence. Wil-

liams and Flewelling (1988) tried to explain inter-city variations in homicide

rate by resource deprivation, social disintegration, and cultural violent orienta-

tion, by disaggregating homicides into several different types. Their proxy for

the cultural violent orientation 1s the ratio of officially justified killings. Their

results show that while resource deprivation and social disintegration are

strongly significant factors in most types of homicides, cultural violent orien-

tation 1s only a weak determinant of only face-to-face homicides. Neverthe-

less, the degree to which violence 1s culturally accepted as a legitimate means

to solve personal problems might be a significant factor in explaining cross-

cultural differences. Take, for instance, gun ownership as a proxy of such cul-

ture. Considering the differences between Japan and the United States with

regard to both crime rates and the legitimate availability of firearms, this varia-

ble appears to be worth introducing in a large-scale comparative study.

Another example of the second case might be the impact of the size of

police forces on crime rates. American criminologists applied experimental

research designs to examine impact of changes in manpower, budget, and the

ways in which police officers patrol and are dispatched. Though there were

exceptions such as for police intervention in domestic violence (Sherman,

1992), results were generally negative (Skolnick and Bayley, 1986). For

instance, increases in police size or budget no longer have an effect on crime

in the United States, possibly because a certain threshold has already been

passed in the United States, below which personnel and money increases

might have been effective. Random motorized patrolling does not reduce

crime, improve arrest certainty, or reduce the fear of citizens. Regular patrols

on foot, which are increasingly more popular, reduce citizens’ fear, but they do

not affect the crime rate (for Japanese research on fear of crime, see Îto, 1993).

__ 92 __

Japanese criminologists have never carried out comparable experimental

studies on police (Miyazawa, 1990b : 36-42). However, in one of the most

sophisticated cross-sectional analysis of interregional differences in crime rate,

Yamaura (1982), a police executive, found that the crime rate increases police

size, but police size does not affect the crime rate.

However, these negative results might be due to the smaller range of vari-

ation within a single country. In international comparative analysis in which

countries vary widely, same variables might become significant factors. For

instance, think about the number of reported crimes per police officer (Miya-

zawa. 1990b : 32-34, 46; 1992 : 13-15). In 1985, excluding traffic-related

offenses, the estimated number of major offenses per police officer was 7.4 in

Japan (Penal Code offenses), 18.7 in the United States (Crime Index offenses),

and 22.0 in West Germany (Straftat). The estimated number of homicides per

1,000 police officers was 8.5 in Japan, 14.6 in Germany, and 28.6 in the United

States. In other words, Japanese society is more saturated with police than

other countries, and Japanese police can spend more time and personnel on

each case ®. Therefore, while it is doubtful that many countries want to satu-

rate themselves with the level of police personnel comparable to Japanese

police, the size of police forces relative to reported crime rates might still be a

theoretically significant factor in international comparisons.

(2) Desaggregated Crime Rates

and the Non-Cultural Bases of Cultural Rhetoric

The problem, then, is whether we can actually design such a quantitative

comparative study. One of the studies that give us hope for the feasibility of

cross-national crime rate analysis 1s a study on the cross-national determinants

of child homicides, by Fiala and LaFree (1988). They took the rate of female

labor force participation as a proxy for economic stress that pushes women

into work out of economic necessity, and their results indicate that there 1s a

remarkably strong positive relationship between economic stress and the child

homicide rate. However, there are some outliers. Among the countries which

have the highest level of female word force participation (approximately

40%), the homicide rates for Japan and Austria are three times that of Finland.

Moreover, the rates for other Scandinavian countries are even lower than for

Finland. They then added variables for the social status of women and for gov-

ernmental assistance, and gained very high coefficients of determination.

(8)

Japanese police are also assisted by an extremely enabling legal environment which

allows them, for instance, to detain the suspect under their direct control for up to 23 days for

each count (Miyazawa, 1992 : 16-25).

__ 93 —

In other words, Fiala and Lafree focused on a type of crime for which

more reliable and valid information 1s available from a large number of coun-

tries and found non-cultural explanations for a phenomenon which often

explained away as something culturally unique to Japan (namely ovako shinju

or parent-children suicide). As [ have already discussed, by carefully selecting

theoretically meaningful general variables, a large-scale quantitative analysis

can properly handle cases which appear to be anomalies.

So, can we design a similarly productive cross-national research for other

types of crime ? And which variables should we include in such studies ? Let

me present some candidates.

(3) The Limited Explanatory Power of Urbanization

and Economic Development

Neumann and Berger (1988) reviewed 17 studies which were published

between 1974 and 1986 and examined their theoretical perspectives and find-

ings. They found that cross-national studies of crime were dominated by what

they call a Durkheimian-Modernization (DM) perspective. They classified the

results into six hypotheses and examined how much support each of them

received. While the DM perspective emphasizes the impact of urbanization

and economic development, results on violent crime did not support 1ts

hypotheses, though results for property crime gave more support to the DM

perspective. Then they proposed what they call the Marxian-World System

perspective and the Ecological-Opportunity perspective as alternatives to the

DM perspective.

Therefore, urbanization and economic development should be included as

far as property crimes are concerned. However, Japan has been treated as an

anomaly with regard to the relationship between those variables and the crime

rate. As I have already said with regard to the routine activities theory, I

believe 1it is necessary to include variables to explain criminal motivations 1f

we wish to design a cross-national study which can explain the enigma of

Japan with general theoretical concepts. What I am going to propose 1s using

two basic strategies in motivational theories in sociological criminology,

namely Robert Merton's anomie theory and Travis Hirscht's control theory

(Miyazawa, 1990b : 47-51). [ will examine the applicability of anomie theory

first, and then that of control theory.

(4) Anomie and the Culture of Endurance

Merton's anomie theory explains deviant behavior as a result of the dis-

juncture between shared goals and legitimate means to attain those goals. For

instance, we may assume that in capitalist industrialized countries, most peo-

— 94 —_

ple value highly the quality of life related to economic well-being. If some

people were severely deprived of economic resources in such a society, then

they might want to obtain valued objects through other means, which might

include 1llegal, criminal behavior. In a macro-level analysis, therefore, we may

expect a positive relationship between the crime rate and indices of economic

distress. Indeed, quantitative cross-national studies often included proxies of

economic distress. Even physical crimes have been found to be related to eco-

nomic distress, probably because some of them are committed in the course of

property crimes or because severe economic distress damages the normative

integration of society and motivates some people to act deviantly in many

spheres of their life.

To cite one example, Devine, Sheley, and Smith (1988) wanted to explain

changes in crime rates in the United States by changes in economic distress

and social control. The male unemployment rate and inflation are proxies of

economic distress, and they found that the male unemployment rate is a con-

sistently strong factor. Similar results have been obtained in Japan. Evans

(1977) already found in the 1970s that changes in the crime rate in Japan are

positively correlated with economic factors, particularly unemployment.

While this line of analysis has not been taken up by Japanese criminologists,

another non-Japanese scholar, Merriman (1991), also obtained similar results

in his more sophisticated econometric analysis. Moreover, in the first econo-

metric analysis of the deterrent effects of the death penalty in Japan, Mat-

sumura and Takeuchi (1992) also found unemployment to have a significant

influence on homicide rates, while arrest rates and death penalty rates did not

show significant impacts.

An interesting comparative issue regarding anomie 1s the possibility that

economic distress does not necessarily appear as a significant factor in cross-

national studies. This possibility 1s suggested by anthropologists Wagatsuma

and De Vos (1984) in their study of the residents of Arakawa Ward of Tokyo in

the 1960s. Arakawa Ward is generally considered one of the most working-

class areas in Tokyo, and its crime rate 1s expected to be high. However, what

Wagatsuma and De Vos saw were people who were generally poor, but who

still maintained positive attitudes about their life and the existing social

arrangement. Wagatsuma and De Vos called such attitudes the ‘’heritage of

endurance”. According to them, those people were accepting their economi-

cally distressful situation and maintaining positive attitudes and manners of

behavior because of their perception that passive compliance would be

rewarded in the future. They then analyzed mechanisms that produce and

maintain such perceptions.

Therefore, even 1f economic distress as measured by unemployment rates

can explain variations within a country, explaining wider variations among

— 95 —_

countries might require additional variables. We may use Wagatsuma and De

Vos' insight in our macro level analysis if we assume that there is a rational

basis for this culture of endurance. If even those at the bottom of the social lad-

der believe in the continuing improvement of their economic well-being and

the decreasing inequality in the distribution of economic resources, they might

not become anomic. Such could be more the case in Japan than in other devel-

oped countries. Às long as the economy continues growing, giving something

to everyone and narrowing the inequality of distribution, the crime rate may

stabilize or even decline, to the extent that the average level of economic well-

being has improved. Thus, we should introduce proxies for economic growth

and economic inequality.

Economic growth is usually measured in terms of the annual rate of

change of GNP or GDP. Japan has had a consistently high rate of economic

growth, and since World War IT has diverted only a little to non-civil, military

uses (Miyazawa, 1990a : 61). Since we are interested in the benefits of eco-

nomic growth in civil life, we should include proxies of both economic growth

and of military expenditure.

Here | am reminded of an argument James Q. Wilson (1983) made, that

the United States experienced both a rapidly growing economy and declining

crime rates in the nineteenth century. People invested much in their efforts to

conform because conformity, literally, paid off. If his argument 1s right, Japan

is not at all anomalous. Rather, Japan's economic conditions have simply been

more favorable than those of other developed countries in recent years, like

those of the United States in nineteenth century.

Economists usually measure economic inequality with the Gini coeffi-

cient. Yamaura (1982), Hansmann and Quigley (1982), and Messner (1982)

used this index and found 1t had a positive relationship with crime rate. Japan

has had Gini coefficients with regard to income distribution consistently lower

than those of the United States, France, and West Germany (Miyazawa, 1990a :

61). In light of these statistics, the culture of endurance of the Japanese people

Is easy to explain in economic terms. Currently, inequality in distribution of

assets, rather than income, appears to be expanding in Japan. However, we

will have to wait a few more years to see its impact.

There 1s still another possibility for refining anomie variables. If depriva-

tion concentrated in a certain group of people who were identifiable by race,

and were already subjected to other forms of discrimination, they would

become most anomic. If such people comprised a substantial share of the pop-

ulation, normative disintegration would occur. Black people in the United

States are a typical example, and the percentage of black population was found

by Williams and Flewelling (1988) to be a significant factor in explaining

— 96 —

inter-city variations in crime rates in the United States. Regarding Japan,

Wagatsuma and De Vos (1984) report that delinquency arrest rates of former

outcasts and Koreans in my town, Kobe, are, respectively, four times and

seven times the average rate. I do not know 1f their statistics are accurate, but

the minority population 1s small in Japan, anyway, and their rate will not much

affect the overall crime rate. Illegal foreign workers who have been taking the

lowest-paying jobs in Japan could become a new group of minorities, but their

impact on the crime rate has not yet appeared. In any event, we should intro-

duce in our model proxies for the relative size of socially discriminated minor-

ities and the intensity of their discrimination.

(5) Bonds to the Conventional World

and the Structural Commitment to Conformity

Hirschi's control theory explains deliquency by loss of bond to conven-

tional associates that controls juveniles. He identifies four types of bonds

emotional attachment to conventional associates, future-oriented commitment

to conventional goals, present involvement in conventional activities, and

belief in the legitimacy of conventional norms and their enforcement agents.

Nishimura (1979) conducted the first self-report study of delinquency in Japan

to test these propositions and found positive results. À more sophisticated test

(With a representative sample) carried out by Tanioka (1992) also produced

generally positive results.

Control theory was originally developed as a theory of delinquency, but

the same logic may apply to crime in general. We may think of conventional

associates, conventional activities, and conventional norms for adults as well

as for juveniles. Wagatsuma and De Vos (1984) suggested how strongly people

in Arakawa were committed to and involved in conventional activities and

believed in the legitimacy of conventional norms. Âs we can see in various

survey results in Japan (Japanese Economic Planning Agency, 1988), the Japa-

nese people are so satisfied with their life that many of them must feel a stake

in their continuing conformity with the conventional world.

For many Japanese adults, their company epitomizes the conventional

order. À comparative survey of American and Japanese workers by Whitehill

and Takezawa (1981) indicates that while the most frequent answer in the

United States 1s that they pursue common goals with their employer only dur-

ing work time, almost two thirds of Japanese residents think that the company

has at least the same importance to them as their private life. Japanese labor

statistics (Japanese Economic Planning Agency, 1988) indicate that they are

serious in their answers. Japanese work longer than most people in the world,

rarely take vacation, and lose almost no work days by strikes. Furthermore,

according to a survey of young workers conducted by the Japanese govern-

__ 97 —_

ment (Tsuda, 1982), they use their spare time simply to rest and recover their

energy for company work, and rarely spend their time in social activities.

Their stake in conformity is indeed high, and it lies in the future. If they lose or

change their job, they will lose whatever they would have received for senior-

ity and as a retirement bonus. Furthermore, since their employer 1s likely to be

their largest creditor in housing loans and other financial arrangements, it is

often impossible to change employers. Under the current economic recession,

many companies started to change their employment practices and the media

constantly reports company decisions about early retirement or layoffs. It

remains to be seen, however, whether the extremely high degree of company

loyalty will be lost and, if it is, whether it will affect the crime rate.

The value of conformity is first taught at schools. For children, school

epitomizes the conventional world. Japanese school children are among the

busiest children in the world. À survey conducted by the Japanese government

(Sekai no Naka no Nippon o Kangaeru Kai, 1985) indicates that they do home-

work more than anyone else, play for a relatively short time, and sleep the

least. According to one source, Japanese junior high school students spend six

hours in the classroom each day and more than three hours in extracurricular

activities and homework. It will be interesting to compare this with figures

from other countries.

Parents expect their children to succeed in school in the conventional

sense, that is, in terms of academic achievement. Children appear to be trying

hard to satisfy these expectations from their most important conventional asso-

ciates, namely parents. However, their apparent conformity does not necessar-

ily mean that they are emotionally attached to their parents. Indeed, the survey

] have just cited rather suggests that Japanese children are relatively unat-

tached to their parents. Thus, their commitment and involvement might be bet-

ter understood as responses to social arrangements that make the costs of

deviance very high. As Nishimura (1979) aptly called it, their commitment is

“structurally enforced”.

Compared to the economic factors appropriate for anomie theory, it may

be much more difficult to find macro-level proxies for these variables appro-

priate for control theory. We should nonetheless try this line of analysis, too.

(6) The Measurement of the Dependent Variable

The most thorny issue in quantitative comparative research is the meas-

urement of the dependent variable, namely crime. Archer and Gartner (1984 :

52-54) argue that underreporting and different indicators of crime are not seri-

ous obstacles, as long as we are interested in comparing trends rather than

absolute levels of crime. Unfortunately, however, the most interesting issue is

— 98 —

the explanation of differences among countries in absolute levels of crime.

Therefore, unless we have reliable secondary data as in the case of Fiala and

LaFree (1988), we may wish to design our own instrument to measure 1t at an

individual level.

Victimization surveys are one such technique. | admire van Dijk and his

colleagues (van Dijk, Mayhew, and Killias, 1991) for their effort to carry out

surveys with the same instrument in different countries, and [ am pleased to

know that such a survey has been conducted in Japan under the sponsorship of

a private organization (Murai, 1990). This survey confirmed Japan's low crime

rate, while also indicating an unexpectedly large number of thefts of motorcy-

cles and bicycles and an unexpectedly low reporting rate. Thus, results from

victimization surveys could be used as measures of the absolute crime levels

of the countries to be compared.

However, the number of countries for which victimization surveys are

available 1s still too small to carry out meaningful statistical analysis. Moreo-

ver, victimiZzation surveys do not cover all major crime categories.

Hence, as far as developed countries are concerned, secondary analyses of

government statistics of reported crimes might still be the only practical solu-

tion. In fact, as far as the rank-ordering of countries is concerned, there 1s vir-

tually no difference between the rank orders by victimization surveys and the

rank orders by government statistics. While such data do not allow us to apply

our most powerful statistical techniques, they are still better than intuitive,

impressionistic inferences.

6. CONCLUSION

J hope that [ have succeeded in arguing (1) that comparative criminologi1-

cal research should not be limited to large-scale quantitative studies, but that

theory-testing with data from a single country and the ethnographic study of

one or two countries have their own places in the development of cross-cul-

tural criminological research and (2) that nevertheless, we need not be too cyn-

ical about the value of large-scale quantitative research. I also hope that this

paper will encourage young scholars to seriously engage in any of the three

types of research I have proposed. In spite of a burgeoning of books and

papers on Japan in the criminological literature, Japan still awaits serious com-

parative research.

BIBLIOGRAPHY

(in English unless otherwise noted)

Ames, W.L. (1981). Police and Community in Japan, Berkeley : University of Califor-

nia Press.

Araki, N. (1985). “The Flow of Criminal Cases in the Japanese Criminal Justice Sys-

tem”, Crime & Delinquency, Vol. 31, 601-629.

Araki, N. (1988). ‘“The Role of Police in Japanese Society”, Law & Society Review, Vol.

22, 1033-1036.

Archer, D.. & R. Gartner (1981). “Homicide in 110 Nations : The Development of the

Comparative Crime Data File”, in Shelley (1981), 78-99.

Archer, D., & R. Gartner (1984). Violence & Crime in Cross-National Perspective, New

Haven : Yale University Press.

Bayley, D.H. (1976). Forces of Order : Police Behavior in Japan and the United States,

Berkeley : University of California Press.

Bayley, D.H. (1991). Forces of Order : Policing Modern Japan, Berkeley : University

of California Press.

Beirne, P. (1983). “Generalization and Its Discontents : The Comparative Study of

Crime”, in IL. Barak-Glantz & E.H. Johnson (eds.), Comparative Criminology,

Beverly Hills : Sage Publications, 19-38.

Braithwaite, J. (1989). Crime, Shame and Reintegration, Cambridge : Cambrigde Uni-

versity Press.

Heine-

Cicourel, A.V. (1976). The Social Organization of Juvenile Justice, London

mann.

Cohen, L.E., & M. Felson (1979). ‘“Social Change and Crime Rate Trends : À Routine

Activities Approach”, American Sociological Review, Vol. 44, 588-608.

Devine, J.A., Sheley, J.F., and M.D. Smith (1988). “Macroeconomic and Social-Control

Policy Influences on Crime Rate Changes, 1948-1985”, American Sociological

Review, Vol. 53, 407-420.

Evans, R, Jr. (1977). “Changing Labor Markets and Criminal Behavior in Japan”, Jour-

nal of Asian Studies, Vol. 16, 477-489.

Fiala, R.. & G. LaFree (1988). ‘“Cross-National Determinants of Child Homicide”

American Sociological Review, Vol. 53, 432-445.

Foote, D.H. (1992). “The Benevolent Paternalism of Japanese Criminal Justice”, Cali-

fornia Law Review, Vol. 80, 317-390.

Geertz, C. (1973). The Interpretation of Cultures, New York : Basic Books.

Griffith, J. (1970). “Idelogy in Criminal Procedure or À Third 'Model' of the Criminal

Process”, Yale Law Journal, Vol. 79, 359-417.

Hamilton, V.L., & J. Sanders (1992). Everyday Justice : Responsibility and the Individ-

ual in Japan and the United States, New Haven : Yale University Press.

Hansmann, H.B., & J.M. Quigley (1982). ‘“Population Heterogeneity and the Sociogen-

esis of Homicide”, Social Forces, Vol. 61, 206-224.

Harada, Y. (1991). ‘Testing the ‘Stable Criminality" Hypothesis with Japanese Data”

paper presented at the SOth Anniversary Meeting, American Society of Criminol-

ogy, San Francisco, November 20-23, 1991.

— 100 —

Harada, Y. (1992). “A Study on the Impact of Social Tracking on Youthful Criminal

Careers in Japan”, paper presented at the 44th Annual Meeting, American Society

of Criminology, New Orleans, November 4-7, 1992.

Heiland, H.G., Shelley, L.I., & H. Katoh (eds.) (1991). Crime and Control in Compara-

tive Perspectives, Berlin : de Gruyter.

Inverarity, J.M., P. Lauderdale, & B.C. Feld (1983). Law and Societv : Sociological Per-

spectives on Criminal Law, Boston : Little, Brown.

Ito, K. (1993). ‘“Research on the Fear of Crime : Perceptions and Realities of Crime in

Japan” , Crime & Delinquency, Vol. 39, 385-392.

Japanese Economic Planning Agency (1988). Kokumin Seikatsu Shihyo (Indices of Life

Conditions of the Japanese), unpublished report on file with the author (in Japa-

nese).

Japanese Justice Ministry Research and Training Institute (1992). Hanzai Hakusho

(White Paper on Crime) 1992, Tokyo : Japanese Finance Ministry Printing Office.

Katoh, H. (1991). ‘’The Development of Delinquency and Criminal Justice in Japan”, in

Heiland, Shelley & Katoh (1991), 69-81.

Katzenstein, P.J., & Y. Tsujinaka (1991). Defending the Japanese State : Structures,

Norms and the Political Responses to Terrorism and Violent Social Protest in the

1970s and 1980s, Ithaca : East Asian Program, Cornell University.

Kersten, J. (1993). “Street Youth, Bosozoku, and Yakuza”, Crime & Delinquency, Vol.

39, 277-295.

Matsumura, Y. & K. Takeuchi (1992). ‘“Can the Death Penalty Deter Crime ? : An

Econometric Approach with Japanese Data”’, paper presented at the 44th Annual

Meeting, American Society of Criminology, New Orleans, November 4-7, 1992.

Merriman, D. (1991). “An Economic Analysis of the Post World War IT Decline in the

Japanese Crime Rate”, Journal of Quantitative Criminology, Vol. 7 : 19-39.

Messner, S.F. (1982). “Societal Development, Social Equality, and Homicide”, Social

Forces, Vol. 61, 225-240.

Miyazawa, S. (1990a). ‘“Developments in Quantitative Comparative Criminology and

Agenda for Japanese Criminologists”, Hanzai Shakaigaku Kenkyu (Japanese Jour-

nal of Sociological Criminology), No. 15, 134-147 (in Japanese).

Miyazawa, S. (1990b). “Learning Lessons from Japanese Experience in Policing and

Crime : Challenge for Japanese Criminologists”, Kobe University Law Review, No.

24, 29-61.

Miyazawa, S. (1991). ‘The private Sector and Law Enforcement in Japan”, in W.T.

Gormley (ed.), Privatization and Îts Alternatives, Madison : University of Wiscon-

sin Press, 241-257.

Miyazawa, S. (1992). Policing in Japan : À Study on Making Crime, translated by

Frank G. Bennett, Jr. with John O. Haley, Albany : State University of New York

Press.

Murai, T. (ed.). In Search of the Safe Society : From the 1990 International Forum on

Crime Prevention (Anzen na Shakai wo Motomete), Tokyo : Japan Urban Security

Research Institute (in Japanese).

Neumann, W.L., & R.J. Berger (1988). “Competing Perspectives on Cross-National

Crime : An Evaluation of Theory and Evidence”, Sociological Quartely, Vol. 28,

281-313.

— 101 —

Nishimura, H. (1979). ‘“The Bond to Society and Persons as a Power of Forestalling

Delinquency : An Empirical Study of the Validity of Control Theory in Juvenile

Delinquency”, Kagaku Keisatsu Kenkyujo Hokoku Bohan Shonen Hen (Research

Reports on Crime Prevention and Juvenile Delinquency, National Research Insti-

tute of Police Sciences), Vol. 20, 126-141 (in Japanese).

Nishimura, H. (1986). “Routine Activities Approach to Theft”, in H. Shikata (ed.),

Hanzai Shakaigaku (Sociological Criminology), Tokyo : Gakubundo (in Japanese).

Sekai no Naka no Nippon o Kangaeru Kai (1985). Kokusai Hikaku Nippon o Miru

(Looking at Japan in International Comparison), Tokyo : Chuo Hoki Shuppan (in

Japanese).

Shelley, L.I. (1981). Readings in Comparative Criminology, Carbondale : Southern IIli-

nois University Press.

Sherman, L.W. (1992). Policing Domestic Violence : Experiments and Dilemmas, New

York : Free Press.

Shikita, M., & S. Tsuchiya (eds.) (1990). Crime and Criminal Policy in Japan from

1926 to 1988 : Analysis and Evaluation of the Showa Era, Tokyo : Japan Criminal

Policy Society.

Skolnick, J.H., & D.H. Bayley (1986). New Blue Line, Berkeley : University of Califor-

nia Press.

Tanioka, I. (1992). “Social Control Theory at Japanese Society” paper presented at the

44th Annual Meeting, American Society of Criminology, New Orleans, November

4-7, 1992.

Tanioka, I. & D. Glaser (1991). “School Uniforms, Routine Activities, and the Social

Control of Deliquency in Japan”, Youth & Society, Vol. 23, 50-75.

Tsuda, M. (ed.) (1982). Gendai no Nihonteki Keiei (Contemporary Japanese Manage-

ment), Tokyo : Japan Institute of Labour (in Japanese).

Tsutomi, H. (1991). “Reformulating Cloward and Ohlin's Differential Opportunity The-

ory into Rational Choice Perspective : Occupational Orientation of Japanese Insti-

tutionalized Delinquents”, paper presented at the SOth Anniversary Meeting,

American Society of Criminology, San Francisco, November 20-23, 1991.

Van Dijk, J.J.M., Mayhew, P., & M. Killias (eds.) (1991). Experiences of Crime Across

the World : Key Findings from the 1989 International Crime Survey, 2nd ed.,

Deventer : Kluwer.

Van Wolferen, K. (1989). The Enigma of Japanese Power

People and Politics in a

Stateless Nation, London : Macmillan.

Wagatsuma, H., & G.A. De Vos (1984). Heritage of Endurance, Berkeley : University

of California Press.

Whitehill, A.M., & S. Takezawa (1981). Work Ways, Tokyo : Japan Institue of Labor.

Williams, K.R., & R.L. Flewelling (1988). ‘“The Social Production of Criminal Homi-

cide”, American Sociological Review, Vol. 53, 421-431.

Wilson, J.Q. (1983). Thinking about Crime, revised ed., New York : Basic Books.

Yamaura, K. (1982). “A Quantitative Analysis of Efficiency in Police Activities”, Kai-

satsugaku Ronshu (Journal of Police Studies), Vol. 35, no. 5, 83-109 (in Japanese).

Yuma, Y. (1992). “Revisiting Cloward and Ohlin's Strain Theory with Japanese Data :

Minor Deviance of Japanese Junior High School Students”, paper presented at the

44th Annual Meeting, American Society of Criminology, New Orleans, November

4-7, 1992.

— 102 —

RESUME

L'objet de cette étude est de présenter le point de vue d'un criminologue

japonais sur les méthodes et hypothèses de la recherche empirique comparée

relative au comportement criminel. Paraphrasant le titre de l'ouvrage de van

Wolferen, The Enigma of Japanese Power, l'auteur présente le Japon comme le

banc d'épreuve idéal de la criminologie comparée : associant de façon appa-

remment contradictoire un développement économique saisissant et des taux

de criminalité stables et faibles, inférieurs à ceux de la plupart des pays déve-

loppés, le Japon continue à requérir trois types d'investigations comparatives :

d'abord la confrontation du cas avec des théories construites dans d'autres con-

textes culturels ou nationaux; ensuite, la comparaison de données qualitatives

sur deux ou trois cultures; enfin, des recherches quantitatives à grande échelle.

SUMMARY

The purpose of this paper 1s to discuss methods and hypotheses of empiri-

cal comparative research on criminal behavior from the perspective of a Japa-

nese criminologist. Referring to the title of van Wolferens book on The

Enigma of Japanese Power, the author studies Japan as an ideal testing ground

for any approach in comparative criminology : with an apparently contradic-

tory combination of tremendous economic development and a consistently low

crime rate, lower than those in most other developed countries, Japan still

needs comparative research of three types : first, using data from a culture or

country different from those where theories to be tested originated; second,

confronting qualitative research focusing on only two or three cultures; third,

comparing quantitative research involving a large number of cultures or coun-

tries.

RESUMEN

El objeto de este estudio es de presentar el punto de vista de un criminô-

logo japonés sobre los métodos e hipétesis de la investigaciôn empirica com-

parada, en lo que respecta al comportamiento criminal. Parafraseando el titulo

de la obra de van Wolferen, The Enigma of japonese Power, el autor presenta

el Japôén como el banco de experimentaciôn ideal de la criminologia compa-

rada; asociando de manera aparentemente contradictoria un desarrollo econé-

mico sorprendente e indices de criminalidad bajos y estables -inferiores a los

de la mayor parte de los paises desarrollados-, el Japôn sigue necesitando tres

tipos de investigaciôn comparativa: en primer lugar, la confrontaciôn de los

casos con las teorias construidas en otros contextos culturales o nacionales:

enseguida, la comparaciôn de datos cualitativos referentes a dos o tres cultu-

ras; finalmente, investigaciones cualitativas a gran escala.

— 103 —

Comments (summary) on :

Professor Lawrence W. Sherman,

"Defiance and the Science

of the Criminal Sanction"

by Martin KitLias, School of Farensic Science and Criminology,

University of Lausanne, Switzerland

1. Dr. Sherman's paper 1s certainly most appealing. It will be welcomed

by those criminologists who are generally critical towards criminal law, deter-

rence, and criminalization, particularly when it comes to areas such as drug

consumption. Ît may be equally appealing to right-wing advocates of ‘“deregu-

lation” in all those areas which might affect free enterprise. The question 1s,

whether Dr. Sherman's theory does not get too much agreement from too

opposite sides.

2. Does social consensus produce laws, or do new laws create consen-

sus? Dr. Sherman warns against enactment of new criminal laws not supported

by “sufficient” social support. This raises several questions : How much con-

sensus is needed”? 90 percent, or would 51 percent do it? Or should we not rely

upon society in general, but look for consensus of the pollutors to criminalize

air pollution? Beyond such questions, another problem with Dr. Sherman's

theory is that it seems to 1gnore that laws create not only conformity (as he

admits), but that they are important agents in the formation of normative con-

Sensus.

3. À good example are laws on speed limits. Figure | shows the decrease

in average speed among drivers, according to measures taken on a wide sam-

ple of streets across Switzeland. Dr. Sherman may say that this 1s nothing else

but another 1llustration of the fact that laws create conformity, as he admits on

the grounds of the international experience with seat belt laws. However,

shortly before the new speed limits were enacted, by Switzerland's Federal

Government through an emergency law (aimed at protecting the forests), less

than 20 percent were in favor of speed limits as those enacted a few months

later (Fig. 2). In other words, Dr. Sherman would probably have concluded

that such a law lacks public support, and many opponents argued exactly in

that sense. The opinion polls were repeated, however, some time later, and

revealed a dramatic shift among the public's view of what speed limits might

be appropriate. Shortly afterwards, a referendum which demanded the restora-

tion of the old (higer) speed limits failed by a 2 to ! majority.

— 105 —

Figure !

SPEED OF DRIVERS BEFORE AND AFTER NEW LIMITS

new speed limits

80/120

A

140 ï

130 î

120 *

\\./"—/‘\’——‘

110 7

Speed

100 4

90 —

se

80 —

70

%

â

fall 86 —

fall 87 _

Ê‘î

Ê

spring 87 +

Period

Motorways : speed exceeded by 15 %

Motorways : average speed

Highways : speed exceeded by 15 %

Highways : average speed

Figure 2

PERCENT WISHING TO SEE THE SPEED LIMITS AT 120 KM/H

ON MOTORWAY AND AT 80 KM/H ON HIGHWAYS

60

À }

55

50

45

40

/

35

30

% favorable

25

20

15

[:}/Er »’/

10

T

T

1979

1981

1986 1987

100/130

Actual legal

80/120

speed limits

Highways (80 km/h)

Motorways (120 km/h)

— 106 —

In this case at least, the law played an important role in the change of pub-

lic attitudes towards speeding. It may produce similar effects in connection

with drunk driving, violence against children or spouses, money laundering,

and probably many other kinds of acts. It may, therefore, not be irrational to

criminalize behaviors which one would like to see morally condemned by the

public. Jellinek, Mayer, and Durkheim have well recognized this role of crimi-

nalization.

4. What factors are responsible of new criminal laws? August Vollm-

er's criticism of trafic laws was certainly well-intended, but it may not suffi-

ciently take into account that motorization has produced a huge number of

contingencies (i.e. riskd and threats to almost everybody's personal safety)

which former generations had not thought of. In fact, new criminal laws - as

new laws in general - are often nothing more than a desperate effort of the

society to control new risks which have been produced by technical innova-

tions (cf. Luhmann 1983). Given this background, the slogan ‘‘“less laws, more

liberties” which over the last years has been so popular among right-wing par-

ties throughout the Western world is deeply cynical since it accepts that basic

freedoms, if not the mere existence, of many people is threatened by the few

who fully enjoy the new liberties created by technical innovation.

S. Virtually all societies punish under one form or another intentional or

negligent homicide or bodily injury. This 1s the old roman law principle of

“neminem laedere’’. In this sense, modern trafic laws have by no means intro-

duced anything new into the criminal law. What 1s intrinsically new, however,

is the criminalization of hazardous behavior (speeding, drunken-driving,

driving recklessly, etc.). In all areas of social life where technical progress has

created new potentials for damaging behavior, we find in all Western countries

many new incriminations of this sort (Fig.3).

Figure 3

THEORITICAL LINK BETWEEN LAW, MORAL RULES AND

BEHAVIOR

Moral fundamental rule

Concrete rules

(e.g. “neminen laedere”)

>

(e.g. speed limits)

Approval by the public

Modification of behavior

(e.g. moral condemnation

>

(e.g. lower speed)

of speeding)

— 107 —

6. Does this mean that there 1s inflation of new criminal laws? Most peo-

ple would certainly agree in this respect with Dr. Sherman, but the empirical

evidence is very weak indeed. À few years ago, a study on the quantitative

evolution of Swiss criminal law revealed the surprising result that the body of

criminal law, as measured by the number of acts or pages, has increased only

by about 20 percent in more than 30 years. Even more interestingly, the pro-

portion of the whole Swiss legislation which concerns criminal law has grown

much less than other areas of law (Fig. 4).

Figure 4

THE QUANTITY OF SWISS CRIMINAL LAW IN 1951, 1967 AND 1982

500

4

400

300

200

100

1951

1967

1982

number of penal codes and statutes

number of other statutes containing some criminal law provisions

cumulative number of penal codes and statutes

cumulative number of pages of criminal law in other statutes

Of course, we do not know whether this trend would be the same in other

countries, too, but some facets make us believe that the underlying factors at

work may be rather similar across the Western world. Ît seems indeed that

criminal law which 1s intrinsically based on the concept of individual respon-

sability may be less able to control new and important risks than alternative

approaches (Wilkins 1984).

— 108 —

7. À good example of how such alternatives can be found (and how they

are becoming increasingly popular among legislators) are the bureaucratic and

technical measures taken to ensure adequate safety of cars. Instead of provid-

ing cruel and unusual punishment for those who kill or injure innocent people

while driving an unsafe car, the more promising way certainly 1s to subject all

cars to a compulsory technical inspection every few years. We find many such

examples in connection with protection of the environment, from the technical

and bureaucratic controls of nuclear plants to the controls of chemical facto-

ries, the safety of building constructions, oil tanks in houses etc. The

approaches to controlling nursery homes (mentioned by Dr. Scherman) are in

the same line. In all these instances, 1t 1s bureaucratic control and not sham-

ing - whether stigmatizing or reintegrative - which 1s at work. It was this kind

of prevention which prevented a Thalidomide disaster - and not lack the of

criminalization of this substance!

. The popular wisdom, expressed by Black (1976, 107) and many others,

that the “inflation’” of criminal law 1s the result of weak social control, seems

rather doubtful. Are sex offenses so harshly prosecuted and punished in Iran

because informal social control of sexual behavior (especially of females) 1s

weak in that country? Does the wave of convictions for child abuse reflect

weakened social condemnation of such acts? Perhaps modern societies face

problems with new contingencies not because informal social control is absent

or weak, but because 1t lacks the capacity of deliberate and immediate change.

Only legal, not moral rules can easily be adapted to new situations (‘“Posi-

tivierung des Rechts”, Luhmann 1983).

9. Maybe the role of social networks in the effectiveness of criminal law

may have been overstated. As we have seen, many laws are effective despite

an obvious lack in social support at the moment of their enactment. And many

people may, after having been punished they got. When we require that they

should accept their punishment as just and justified, we simply may demand

too much. Everyone should have a right to develop his own self-justification in

defense of his own identity. Requiring him/her to agree to his/her punishment -

and to live with all the terrible guilty feelings which this state of mind implies

- might work only with masochistic individuals, or under more or less totalitar-

lan conditions. The assumption that approval of his own punishment by the

offender is necessary to prevent later offending reminds me of those crimino-

logical theories, which attempted to explain crime by normative dissensus; as

we now know, offenders typically share the rules they violate - in general at

least. In these terms, | wonders, in continuation of Dr. Sherman lovely story

about his son, whether he did talk even lauder during later movie perform-

ances. This and not his feelings about the reacting person would, ! think, be the

critical test of his father's theory.

— 109 —

10. It also is doubtful whether informal social control 1s necessarily less

intrusive, less stigmatizing, more constructive, mor democratic etc.

Dr

Sherman seems to regret that colleagues, neighbours, family and other

acquaintances are no longer involved in (nor necessarily informed about) the

punishment process. But would their presence not just lead to the pillory of

periods which used to be so heavily stigmatizing? One also should keep in

mind that the most effective way of “‘reintegrative shaming’” has been the

“self-critique” in communist and other totalitarian organizations, or in the

“Gesellschaftlische Gerichte” of Former East Germany. Of course, this should

not be seen as an repectful of the individual. The question also is whether

strongly blaming serious acts without blaming actors is - in psychological

terms - a feasible strategy. | suppose that social psychologist would have a lot

to say on this, particularly in connection with theories of cognitive-affective

consistency (Abelsonet al. 1968). In sum : how viable 1s reintegrative sham-

ing?

11. Let's end with a short comment on Ziggy the Rat. Such cases of

absurdity concern, at closer inspection, law enforcement policies rather than

criminal law legislation. No one of the animal cases, nor the failed attorney

general who did not withhold taxes, were in trouble because of any new law,

but because of inadequate priorities in police and law enforcement work. Usu-

ally, the Roman law principle “de minimis non curat praetor”” would allow

to concentrate on cases worth their price. However, in countries with a widely

accepted opportunity maxim (such as the USA, there may be less pressure

upon the legislators to restrict the scope of laws to situations where it reasona-

bly should be enforced even in absurd and atypical cases.

12. Dr. Sherman's examples also show how easily American citizens can

be arrested even for trivial offenses. As an European, one also may be sur-

prised about his comments on the so-called erosion of sentences imposed upon

burglars in the USA. There is no doubt that sentences for the same crime tend

to be much shorter in Europe than in America. Perhaps the real inflation con-

cerns penal severity. In this regard, 1 do not see much to disagree with Dr.

Sherman's conclusions, and I feel we really should consider very carefully

what he has told us about that aspect of penal inflation.

REFERENCES

Abelson R.P. et al. (Eds.), Cognitive Consistency; À Sourcebook, Chicago (IH.): Rand

Mc Nally, 1968

Black D., The Behavior of Law, New York; Academic Press, 1976

Braithwaite J., Crime, Shame and Reintegration, Cambdrige: Cambridge University

Press, 1989

— 110 —

Durkheim E., L’éducation morale, Paris: PUF, 1963 (first ed. 1914)

Jelinek G., Allgemeine Staatslehre, 3d ed., Berlin, 1914

Killias M., Précis de criminologie, Berne (Switzerland): Stämpfli, 1991

Luhmann N., Rechtssoziologie, 2 vol., 2nd ed., Opladen (Germany), 1983

Mayer H., Strafrechtserform für heute und morgen, Berlin, 1962

Sherman L.W., Criminology and Criminalization: Deflance and the Science of the

Criminal Sanction, Paper presented at the 1 1th International Congress on Crimi-

nology, Budapest (Hungary), August 23, 1993

Wilkins L.T., Consumerist Criminology, London/Totowa (N.J.): Heinemann, 1984

RESUME

Ce texte résume les commentaires proposés par l'auteur au professeur

Sherman à la suite de son rapport sur la criminalisation et la défiance par rap-

port à la loi, publié dans le n° 31 des Annales internationales de criminologie

(1993. pp. 79-93).

SUMMARY

This paper summarizes comments on professor Sherman's paper, “Defi-

ance and the Science of Criminal Sanction’”’, published in the former 1issue of

the /nternational Annals of Criminology, 31/1-2 (1993) pp. 79-93.

RESUMEN

Este texto resume las comunicaciones propuestas por el autor al profesor

Sherman luego de su informe sobre la criminalizaciôn y la transgresiôn de la

ley, publicado en el numero 31 de los Anales internacionales de criminologia

(1993. pp. 79-93).

— 111 —

Violence against the elderly

Types, patterns, and explanations

By Ezzat À. FATTAH

Professor, School of Criminology, Simon Fraser University

Burnaby, B.C., Canada

INTRODUCTION

Violence against the elderly as well as abuse of the elderly have become

current and popular topics in criminology, and yet there 1s no solid evidence to

support the claim that violence is a problem for the elderly. To establish

whether it is, it is necessary to determine the extent to which older people are

victims of violence. to find out whether they are more or less victimized than

younger age groups, and to analyze the short as well as the long term effects of

their violent victimization. It also seems necessary to determine the place vio-

lent victimization occupies in their day to day life. Where exactly does vio-

lence or violent victimization figure among the daily preoccupations of the

elderly and how do they rank violence (or their fear of it) in relation to the

many other problems they face in European or North American society”

Information on most of these points 1s awfully lacking and although many

studies have tried to explore fear of crime among the elderly, to my knowl-

edge, only few empirical investigations have addressed these questions or tried

to find their answers. Furthermore, studies on fear have, for the most part,

treated crime as general category rather than singling out violence or specific

violent crimes. When the questions asked are more refined, they tend to show,

as did the British Crime Survey (1983), that the elderly's greatest anxiety 1s not

about crimes of violence but about residential burglary. For 44 % of the British

sample this was the offense that caused the greatest anxiety to elderly respond-

ents. Jones’ (1987) findings are similar. She also discovered in her study of

elderly tenants in a British urban community that their personal and social anx-

ieties about crime focused on two particular forms of offending : burglary and

vandalism, that is two behaviors that are not commonly included in the overall

category of violent crime.

WHAT IS VIOLENCE?

So what exactly 1s violence and what are the types or forms of violence

that are commonly committed against the elderly”

— 113 —

À definition of violence is beyond the scope of this paper. But violence

does take many forms. Generally, the interest of researchers in criminology

has been focused on physical violence. And yet, violence can be verbal, mental

or psychological as well. One often hears terms like “psychological torture”

and ‘“mental cruelty” used in different contexts. Although the latter is one of

the most frequent grounds for divorce in North America, to my knowledge, no

jurisdiction has yet defined it as a criminal, can be extremely painful, distress-

ing, and can cause a great deal of suffering and anguish to those who are sub-

jected to them.

Humiliation, degradation, ridicule, can be more victimizing than minor

(or even major) forms of physical violence. Just being ignored can be

extremely stressful to an overly sensitive person. Gossip can ruin lives, mar-

riages, reputations, careers, without either qualifying as violence or being

defined as a crime!

These examples are meant to illustrate that criminologists often have a

rather narrow view of violence. And by focussing almost exclusively on acts

of physical or sexual violence, they could be missing many other behaviors

that might be more injurious, more stressful, even more devastating to elderly

individuals than the few acts of physical violence perpetrated against them.

Another point usually overlooked is that violence is not limited to the use

of force against the person. It may be, and often 1s, directed against non human

targets such as animals or objects as in the case of vandalism or breaking and

entering. Though the direct targets are not human beings, these violent acts can

be quite serious and are particulary worth studying in the context of violence

against the elderly. To deliberately destroy a coveted object of great sentimen-

tal value, to act violently against a beloved pet, could be more hurtful to the

elderly owner than being personally the target of violence. And although

breaking and entering (burglary) is an offense not usually classified in the sta-

tistics as a crime of violence, it might be perceived by the elderly victim as a

serious violent victimization. Be that as it may, for the sake of clarity and brev-

ity, it seems necessary to leave aside for now these other types of violence and

to limit this review to conventional violence that is included in crime statistics

or victimiZzation surveys.

VIOLENCE BY ONESELF

AND VIOLENCE BY OTHERS

The review will also be limited to violence by others and will not include

self-inflicted violence. For reasons that are not quite clear, much greater atten-

tion is paid in the research, and subsequently in the literature, to the former

than to the latter. This 1s so despite the fact that violence against oneself, the

— 114 —

ultimate form of which 1s suicide, claims many more lives than does criminal

homicide. In other words, whereas the intentional killing of elderly persons 1s

rather rare. suicide by older people 1s rather common. In fact, contrary to vic-

timization by others which significantly declines with advancing age (see

below), the rate of suicide among those over 60 years old is usually higher

than among other age groups.

For example; Australian statistics for 1989 (James, 1992) show that the

death rate for those over 65 years old by suicide and self-inflicted injuries 1s

the highest of all other age groups. And while the victimization rate by homi-

cide per 100.000 age specific population was 1.2 for the age group 65-74

years, and 1.9 for those 75 and over, the rate of death by suicide and self-

inflicted injuries for the two age groups was fifteen times higher for the first

group (17.5) and nine times higher for the second (17.2).

ELDER ABUSE

The term ‘“elder abuse” 1s frequently encountered in the gerontological

and victimological literature and seems to be gaining in popularity with the

passing of each day. Ît seems to have replaced the older notion of ‘’violence

against the elderly”. Unfortunately, this vague, ambiguous, highly subjective

and elastic concept has become, since it was first used in the 1960s in the con-

text of mistreatment of children, one of the staples of criminological and victi-

mological terminology.

Surprisingly, the terms ‘child abuse” or ‘elder abuse” neither denote a

legal category nor a homogeneous class of behavior. And despite the wide-

spread use of the term ‘“elder abuse”, it is not possible to find in the volumi-

nous research literature one objective definition that lends itself to adequate

operationalizations. The lack of à standardized definition has led to widely

varying operationalizations. This, in turn, has rendered both fruitless and frus-

trating any attempt to compare the findings of the studies be 1t at a national or

international level. Thus while many studies have been conducted to assess the

frequency of elder abuse, there 1s still no reliable estimate of its incidence or

prevalence in any country. The studies, like those on child abuse or wife abuse,

suffer from numerous methodological problems, not the least of which 1s the

inadequate operationalization of the central concept and the ad-hoc or non-rep-

resentative samples generally used. The elasticity of the term ‘‘abuse” 1s such

that it makes it possible for any researcher to downplay or overblow the inci-

dence of abuse simply by adopting a narrow or a broad definition of the con-

cept. In view of this, one has to wonder whethher the term ‘’abuse’’ does have

any research of practical utility, wheter it should continue to be used or

whether it should be erased from the language of criminology! When every

effort is made in criminology to break down broad categories of behavior into

smaller, homogeneous units that allow meaningful analysis, generalization and

— 115 —

theory construction, one has to question the need for, and the utility of, using a

generic term such as “abuse”’.

The uselessness of the term ‘‘abuse” could be further demonstrated by

looking more closely at the various categories that are usually grouped under

this general heading. Where abuse can be objectively established and meas-

9 6

ured such as in cases of ‘““physical

,

sexual”, or ‘“financial” abuse, one finds

that the types of victimization involved already constitute offenses under the

, “

» “

provisions of ‘“‘assault”, ‘“assault and battery

°

aggravated assault

s

sexual

assault”, “indecent assault”, “theft”, “fraud”, “forgery”, “breach of trust”

among others. One must wonder about the advantage of grouping such con-

crete, but varied offenses, under a catch-all category called ‘“abuse”.

When the types of behavior included under the general term ‘‘’abuse” are

not criminal but are simply forms of conduct that people disapprove of, or dis-

agree with, such as addressing the elderly person in a rude, impolite or insult-

ing manner, shouting at, teasing or interrupting the older person, and so forth,

one has to ask whether these inappropriate behaviors should be lumped

together with the more serious offenses in the same category.

The same applies as well to the concept of “neglect” and to behaviors

which are labelled ‘‘abuse”’ for the simple reason that they do not meet, or fall

short of the standards of good care that should apply to the elderly. Surely, eve-

rything should be done to ensure that old people live in decent, healthy, com-

fortable, and tidy conditions. However, failure to provide such desirable

conditions either by reason of poverty, stinginess, or greed 1s not the same as

intentional physical or sexual assault, as deliberate acts of fraud or misappro-

priation. Inadequate, improper, insufficient, or substandard care 1s a matter for

social services but has little, if anything, to do with criminology.

A PROPOSED TYPOLOGY OF VIOLENCE

As mentioned above, there are many different types of violence. There-

fore, to better understand, explain, and prevent violence against the elderly it 1s

necessary to know to which types of violence they are particularly prone. As

will be seen later, they are quite vulnerable to certain types and quasi immune

to others. À typology of violence, then, is needed. As violence is a generic

term, researchers have tried for some time to develop classifications and typol-

ogies aimed at breaking it down into more or less homogeneous categories.

À dichotomous classification used by Chambliss (1967) and others divides

violence into instrumental and expressive. Instrumental violence 1s not an end

in itself, it is a means to an end. Ît is violence used to achieve some other goal.

This 1s the case, for example, when violence is employed to coerce the victim

or to force him/her into compliance (robbery, extortion, hostage-taking, etc.)

— 116 —

or to overcome the resistance of the victim (rape). Expressive violence, on the

other hand. 1s used as a substitute to language or to verbal communication, it 1s

the physical expression of emotions such as anger, hostility, rage, hate, frustra-

tion, jealousy, and so forth.

Although this dichotomous classification 1s quite useful for research and

theorizing purposes, it 1s not detailed enough. Each of the two categories

remains quite heterogeneous. À more detailed typology, like the one proposed

below, 1s needed. It is a typology that uses as criterion the motive behind the

violence, what the perpetrator is trying to achieve through the use of force.

Using the very relevant criterion of ‘“motive” for classifying violence makes 1t

possible to identify seven major types :

(1)Predatory violence

(2)Sexually-motivated violence

(3)Retaliatory violence

(4)Ideologically-motivated violence

(5)assertive violence

(6)Thrill-, fun-, stimulation-seeking violence

(7)Gratuitous, senseless, and motiveless violence.

As with any typology, there is bound to be some overlap between the dif-

ferent types. The pure or ideal type, that 1s the type that belongs exclusively to

one category, namely where there 1s a single, clear and identifiable motive 1s

quite rare. Quite often, there 1s more than just one motive and the motives

could well belong to more than one category. In such cases, the classification

of the violent act as being of one type or another is done on the basis of the pri-

mary, the dominant, or the most obvious motive.

What follows 1s a brief description of each of the seven types.

(1) Predatory Violence

Predatory violence whose primary objective is material gain 1s one of the

oldest and most primitive types of violence. Its prototype, and ultimate form,

1s murder for robbery known in German as “Raubmord”. Due to its primitive

nature, predatory violence accounts for only a small fraction of violence in

modern, advanced societies. Although no reliable statistics or estimates are

available, the proposition that predatory violence constitutes a rather small

portion of the overall violence picture seems to be well accepted by criminolo-

gists. Statistics on criminal homicide, a crime in which the motive(s) is sys-

tematically analyzed, lend credence to the proposition. Canadian homicide

statistics, for example, (Juristat, 1992) show that only one in ten homicides 1s

committed for predatory or sexual motives. Homicides against elderly victims

do, however, present a different picture (see below).

— 117 —

(2) Sexually-Motivated Violence

The primary objective of this type of violence 1s sexual gratification. À

further distinction could be made between sadistic violence, that 15 when sex-

ual pleasure 1s derived from the infliction of pain and suffering on the victim,

and coercive violence that is ssmply employed to force the victim of the sexual

attack into submission or to overcome the victim's resistance.

Sexual violence, particularly rape, is sometimes treated as a variety of

predatory violence. This 1s because there 1s a certain element of predation

involved : the attempt to possess the victim's body, to rob her of her virginity,

her innocence, and her right to decide when and with whom to have sex.

(3) Retaliatory Violence

When the primary motive for violence 1s revenge, when 1t is a response to

actual or perceived victimization, to provocation, to persecution, to aggres-

sion, etc., it can be classified as retaliatory violence. Belonging to this type are

various acts of violence motivated by revenge, retaliation, or the desire to get

even, such as vendetta, reprisals, settling of accounts to name but a few. The

same 1s also true of acts of self-defence, vigilantism, taking the law into one's

own hands, and so forth. There are many reasons to believe, as Felson and

Steadman (1983) point out, that retaliation 1s a key ingredient in violence and

that revenge 1s one of the most prevalent motives for the use of force. Violence

in most instances seems to be an expression of a grievance (Black, 1983), a

response to an attack, injury, or provocation (Fattah, 1993).

(4) Ideologically-Motivated Violence

[deologically-motivated violence is a broader type than “political vio-

lence” as it covers motives that are difficult to define as political in a strict

sense. Examples of these are acts of violence motivated by religious or cultural

prejudices such as attacks on homosexuals, prostitutes, members of ethnic or

religious minorities. [Ideologically-motivated violence covers acts such as gen-

ocide, terrorism from above and terrorism from below, and so forth.

(5) Assertive Violence

Assertive violence 1s usually à response to a perceived threat to the per-

son's situated identity (Hepburn, 1973), to one's pride, authority, to the male’s

masculinity, etc. It thus includes whatever acts of violence are aimed at affirm-

ing the perpetrator's power or authority. À good part of domestic or family vio-

lence 1s assertive violence meant to affirm the line of authority and the

hierarchical power structure within the family. Corporal punishment of chil-

dren, for example, is assertive with the parent, foster parent, or teacher trying

to affirm, through the use of force, their power role and their authority.

— 118 —

(6) Thrill-, Fun-, Stimulation-Seeking Violence

While violent acts committed to gain peer acceptance or to affirm one's

membership in a gang may be qualified as assertive violence, there are other

acts of violence, particularly by young people that are committed for no other

motive but to seek fun, thrill or stimulation, what is referred to in slang as

“getting a kick”. Fun, thrill and stimulation seeking are believed to be the pri-

mary motives behind many delinquent acts such as vandalism, joy riding, car

theft, shoplifting, breaking and entering as well as certain acts of violence, for

example, gay bashing (which could also be classified as ideologicaly-moti-

vated).

Unfortunately, little attention has been paid to this motive despite the

obvious implications such knowledge could have for crime prevention.

(7) Gratuitous, Senseless, Motiveless Violence

This 1s, no doubt, the rarest type of violence. Acts belonging to this type

are usually committed by individuals suffering from some kind of mental dis-

order. Due to their nature, these violent acts are difficult to predict and to pre-

vent. They are also difficult to include in any theory of violence or in

explanatory model of violent behavior.

This proposed typology neither claims nor pretends to be comprehensive,

let alone exhaustive. Motives for violence are so varied and so complex that 1t

is doubtful any typology will ever be able to identify and include all of them.

The seven types presented above seem to be the most common. Using them for

analytic purposes will hopefully contribute to a better understanding of vio-

lence in general and violence against the elderly in particular.

TYPES OF VIOLENCE COMMITTED

AGAINST THE ELDERLY

Once the various types of violence are identified and examined it becomes

quite clear that the elderly are not equally victimized by all types. They are

prone to certain types but are quasi-immune to others. Ît 1s true, of course, that

occasionally an older person might become victim of an act of retaliatory vio-

lence or ideologically-motivated violence (for example, an older homosexual

who 1s beaten or killed by a young person or a youth gang). And although sex-

ual assaults against the elderly are usually rare, it does happen now and then,

that an elderly woman 1s raped or sexually assaulted. Generally, however, in

such cases one finds at closer scrutiny that sex was not the primary motive for

the attack and that the sexual violence was only subsidiary to another act of

predatory or retaliatory violence.

— 119 —

So, by and large, violence against the elderly 1s predominantly of two

types : predatory violence and assertive violence. Unfortunately, it is not possi-

ble to tell how much of the violence is predatory and how much 1s retaliatory

since, to my knowledge, no study has tried to assess the relative frequency of

each of the two types. There is, however, empirical evidence strongly suggest-

ing that the elderly run a higher risk of predatory homicide than younger age

groups and that older persons who live alone are more vulnerable to this type

of homicide than those who are protected by the presence of others.

In a study of murder for robbery (Raubmord) that I conducted in Austria

in the early 1960s, [ was surprised to find that a relatively high percentage of

the victims were elderly persons usually living alone (Fattah, 1971). These

older victims were sought out by uneducated, unskilled, primitive young males

who were trying to get money in a quick, though violent manner, by eliminat-

ing the victim.

In a more recent study based on Canadian homicide data, the authors

(Kennedy and Silverman, 1990) found that elderly victims (over 65) were

more than twice as likely to be victims of theft-based homicide than those in

any other age group. Forty-one percent of all homicides against elderly victims

were theft precipitated and another 4 percent involved sex-related crime.

Another interesting finding of the same study 1s one about victim-offender

relationships. Kennedy and Silverman discovered considerable variation in the

frequency of such relationships according to the age of the victim. Over half

those who were under 18 (55 %) were killed by a family member (other than a

spouse or a lover). For victims over 65, this relationship was present in only

19.3 percent of the cases! And while four out of ten victims aged twenty-six to

forty-five were killed by a spouse or a lover, the corresponding percentage for

victims over 65 was 12.5 percent, and understandably, for those under eight-

een, it was merely 3.9 percent. The authors also found that elderly victims of

sixty-five and over were the /east likely of all age groups to be killed by some-

one they knew and the most likely to be killed by strangers, either during the

course of another crime or not. Almost half the elderly victims (45 %) fell into

that group, which 1s almost twice as high at it 1s for any other age group.

The same pattern reported by Kennedy and Silverman (1990) was con-

firmed by Trevethan (1992). Using Canadian homicide data for a ten year

period (1981-1990), she found that à higher proportion of elderly victims (60

years and over) were killed during the commission of another criminal

offense, in particular robbery or theft (40 %), than younger victims (17 %).

She also found that the proportion of individuals under 60 who were killed for

personal reasons, such as anger or revenge, was almost twice the proportion of

elderly victims killed for similar reasons (71 % versus 38 %).

— 120 —

That elderly people are more prone to predatory violence than other age

groups could be seen in another offense to which elderly females are particu-

larly vulnerable, namely purse snatching. Whether purse snatching 1s recorded

in the statistics as robbery or as theft with contact, there 1s no doubt whatso-

ever that it is perceived and experienced by the victim as a crime of violence.

Victimization surveys in the United States, Canada and Germany, among oth-

ers, show that purse snatching is one of the offenses from which elderly

females disproportionately suffer. Actually, it seems to be the only offense (at

least among those covered by victimization surveys) for which their victimiza-

tion rate exceeds that of the younger population.

The victimization survey conducted by the Criminology Research Insti-

tute of Lower Saxony (Bilsky, Mecklenburg, Pfeiffer, and Wetzel, 1992) in the

new and old federal states and covering the period of 1987 to 1991 revealed a

reported purse snatching rate per 1,000 interviewees of 11.9 for the under sixty

and 26.5 for those over sixty years old in the new federal states. For the old

federal states the rate was 25.0 per 1,000 interviewees under 60 years old and

35.4 for those over 60 years old. For all other offenses covered, victimization

rates reported by the elderly group were lower than those reported by younger

interviewees in both parts of the country.

IS VIOLENCE AGAINST THE ELDERLY

DIFFERENT FROM VIOLENCE AGAINST

OTHER VICTIMS?

Violence against the elderly differs in some respects from violence com-

mitted against younger persons. Âs mentioned above, violence against the eld-

erly 1s predominantly predatory or assertive in nature. Ît was also noted that a

higher percentage of violence against the elderly than against younger victims

Is committed by strangers. This, obviously, 1s not the case with elder abuse

which 1s predominantly perpetrated by family members and care-takers.

Violence against the elderly differs from violence directed against other

age groups in another respect : w'here it occurs. Ît is overwhelmingly commit-

ted in the residential environments in which the elderly live. With the excep-

tion of purse snatching, which may or may not be considered a violent offense,

and which usually 1s perpetrated on the street or in a public place, the majority

of acts of violence to which the elderly persons are victims occur in their

homes. This is precisely the reason why Jones (1987) considers elderly victims

to be “domestic victims” as the common feature of the crimes against them in

her study was that they all happened in or around the domestic environment.

This, of course, 1s understandable since the elderly spend substantially longer

time at home than younger people do. And the older they get and the sicker or

— 121 —

less mobile they become, the longer they remain in their residences. In view of

this, it is not surprising that the crime they fear most is burglary (see above).

That the elderly are more frequently victimized at home than younger vic-

tims 1s quite evident in the case of criminal homicide. In Canada, for example,

Trevethan (1992) found that while the largest proportion of all homicides

occurred in victims' homes, this was even more pronounced among elderly vic-

tims. More than three quarters (77 %) of the homicides involving elderly vic-

tims were committed in the victim's home compared to less than one-half (48

%) of the homicides against younger victims. And whereas one in five (21 %)

of the homicides against younger victims occurred in public places, only one in

ten (9 %) homicides against elderly victims was perpetrated in such places.

GENDER DISTRIBUTION

Victimization data, as well as official statistics, consistently show that,

with the exception of sexual offenses, males are more frequently victimized by

crime than females are. As females outnumber males in the older age groups

(65 +) one would have expected this pattern to change and to find more elderly

female than male victims. This, however, does not seem to be the case.

Trevethan's (1992) Canadian study of violent crime against the elderly,

based on data from 13 police departments, found that 60 % of the total number

of elderly violent crime victims were men and 40 % were women. The gender

distribution varied somewhat according to the type of violent crime. Elderly

victims of assault were 61 % male and 39 % female, while for robbery men

accounted for 57 % of the elderly victims. And whereas the gender distribution

in robbery was similar for both younger and elderly victims, the percentage of

elderly male victims of assault (61 %) was higher than the corresponding per-

centage of males among younger victims (54 %).

IS VIOLENCE AGAINST THE ELDERLY

MORE SERIOUS THAN VIOLENCE AGAINST

YOUNGER VICTIMS?

To determine whether violent victimization of the elderly 1s more serious

than that of younger age groups one might try to find out :

-

whether violent crimes are more brutal when committed against the eld-

erly than when committed against other groups,

whether weapons, particularly firearms are used more frequently in

attacks against the elderly than in attacks against other victims,

whether elderly victims of violence are more frequently injured when

attacked than are younger victims,

— 122 —

whether the injuries suffered by elderly victims are usually more serious

than those suffered by younger victims, and

whether elderly victims cope less well with the effects of violent victim-

ization than younger victims.

While it 1s difficult to answer this last question because of the penury of

research on this particular aspect of elderly victimization, data pertaining to

the others are available. The Canadian study on violence against the elderly

previously cited (Trevethan, 1992) provides answers to some of the questions.

The study reveals that overall, elderly victims did not substantially differ

from younger victims in the level of injury they experienced from the incident.

Approximately one-half of all violent crime victims suffered some form of

injury. In the case of assault, elderly victims were not injured as frequently as

younger ones (54 % versus 63 %). For robbery, however, the percentage of

elderly victims who reported receiving some form of physical injury was

almost double that of younger victims (44 % versus 23 %). Although the study

did not speculate on the reasons for this, it could very well be that elderly vic-

tims do not yield their property under threats as easily as do younger victims.

Trevethan (1992) further found that although physical force was the most

common method used against all victims of violent crime, this was true to a

lesser extent for elderly victims. Physical force was used against two-thirds of

elderly victims of violent crime compared to three-quarters of all other victims.

The use of weapons in violent victimization was somewhat more frequent

in the case of elderly victims than in cases of younger ones. The study reports

that one third of the former encountered assailants who were armed with some

form of weapon compared to 22 % of the latter. In the case of criminal homi-

cide, this study shows that elderly victims were killed more frequently by beat-

ing than younger victims (34 % versus 19 %). With regard to shooting the

pattern was exactly the reverse. Approximately one in five elderly victims (19

Ÿ ) was shot, compared to one in three (34 %) of the younger victims. No other

marked difference was found regarding the other methods with which homi-

cide was perpetrated.

The fact that more elderly victims were killed by beating than by shoot-

ing, together with the fact that more younger than elderly victims were shot to

death could be explained in different ways. One possibility 1s that killers

attacking elderly victims do not, in many cases, find it necessary to resort to a

firearm believing, and rightly so, that they can easy overcome them with a

blunt instrument, or even with their bare hands. Another possible explanation

is that elderly victims who are beaten without a murderous intent succumb

more frequently to the injuries they suffer than do younger victims. In fact, this

may also be the reason why the same study found that the proportion of homi-

cide victims in general who were elderly was substantially larger than the pro-

— 123 —

portion of violent crime victims in general who were elderly (11 % versus 3

%). Trevethan suggests that this might be due to the elderly dying as a result of

injuries more often than younger victims. All these explanations are specula-

tive and until further research confirms one of them, none could be regarded as

nothing more than a plausible hypothesis.

THE EXTENT OF ELDERLY VICTIMIZATION

Victimization surveys conducted in various countries over the last two

decades unequivocally show that the elderly, whether defined as those over 60

or over 65 years old, are the least victimized age group. This 1s true of crimes

against the person as it is of crimes against property. It is true for offenses

involving violence as it 1s for non-violent offenses.

In the United States, Catherine Whitaker (1987) analyzed data from the

National Crime Survey (NCS) and concluded that between 1980 and 1985, the

elderly (defined as those age 65 and older) had the lowest victimization rates

of any age group of the United States population age 12 and older. The pattern

was again confirmed by the findings of the American National Crime Victimi-

zation Survey for 1990 which showed that those 65 years and older have the

lowest rates for both crimes of violence and for crimes of theft (see Appendix

1). The rate of assault, for example, was 63.5 per 1,000 persons aged 16 to 19

and only 1.9 per 1,000 persons 65 or older. Crimes of theft exhibit a similar,

though less pronounced pattern. Those 16 to 19 years old reported a victimiza-

tion rate of 113.4 per 1,000 persons (in their age group) and those 65 or older

had a rate of only 21.2 per 1,000 persons in that age group.

Australian Victimization Survey data (Braithwaite and Biles, 1984) are

consistent with this pattern with the 20-24 years old reporting the highest rates

on the majority of the offenses, and the over 60 the lowest.

In Germany, the same low victimization pattern for the elderly population

emerged from the victimization survey conducted by the Lower Saxony Crim-

inology Research Institute in both East and West Germany (Bilsky, Mechlen-

burg, Pfeiffer and Wetzels, 1992).

In the Canadian General Social Survey (Sacco and Johnson, 1990), a vic-

timiZzation rate for the 65 + age group could not be estimated because of the

low figures of reported victimization. Trevethan's study (1992) using crime

data from 13 police departments reports that only 3 % of violent crime victims

were 60 years of age and older, considerably less than their percentage in the

1991 Canadian population (16 %). The same study, using Statistics Canada

homicide data for the ten year period of 1981 to 1990, shows that approxi-

mately 11 % of homicide victims were elderly which 1s less than their propor-

tion in the general Canadian population. And although elderly females

— 124 —

outnumbered elderly males in the general population (56 % to 44 %) they con-

stituted 40 % only of the elderly victims of violent crime (see above).

THÉKORETICAL EXPLANATIONS OF THE

ELDERLY'S LOW VICTIMIZATION RATE

The high vulnerability of the elderly and their low victimization rates

indicate that vulnerability and victimization do not always go hand in hand,

that the most vulnerable are not necessarily the ones most often victimized.

They also suggest that certain factors, behaviors, conditions are probably

shielding the elderly against criminal victimization and particulary violent vic-

timization.

Theoretical explanations of the differential risks of criminal victimization

(Fattah, 1991) offer valuable insights that help explain why the elderly, though

vulnerable, are less frequently victimized than others. Research on offenders'

reasoning, on the way they choose their targets (Clarke and Cornish, 1986)

suggests that the elderly are, for the most part, less attractive, less accessible

and less exposed targets for criminal victimization than the younger popula-

tion. The lifestyle model (Hindelang et al., 1978) and the routine activity

approach (Cohen and Felson, 1979) suggest that the elderly, in addition to

being less exposed than others, do behave in manners that are likely to reduce

their chances of personal victimization as well as their chances of falling vic-

tim to certain types of property victimization.

(1) Less Attractive Targets

Old age acts as a protective device against criminal victimization by mak-

ing the elderly less attractive targets, both physically and culturally. For exam-

ple, in those sex offenses in which age and physical attractiveness are

important criteria for the selection of the victim, the elderly are not likely to be

preferred targets. And due to their generally precarious financial situation and

meagre economic resources they are less desirable victims for experienced

property offenders seeking lucrative and profitable targets.

The elderly are also protected by cultural norms and cultural taboos. In

most societies, there are strong cultural prohibitions against victimizing the

old, the weak, the handicapped, the helpless, the defenceless, and so forth.

Such cultural prescriptions reinforce the moral inhibitions and render members

of those groups less desirable victims. The techniques of neutralization (Sykes

and Matza, 1957) and of desensitization (Fattah, 1991) that enable potential

offenders to legitimize their behavior, silence their conscience, inactivate the

informal mechanisms of social control and avoid post-victimization cognitive

dissonance, are not likely to be effective in the case of elderly victims as they

— 125 —

are likely to be when the chosen or contemplated victim is a person in his

prime or is a member of a socially stigmatized group (homosexual, prostitute,

drug-trafficker, and so on).

There are other reasons why the elderly are less attractive targets, particu-

larly for reasoning, calculating offenders. It 1s a well-known fact that their vic-

timiZzation 1s less likely to be dealt with leniently than that of younger victims,

and the older the victim, the harsher 1s the penalty. Many offenders, especially

experienced ones, have more or less accurate perceptions of the general level

of sanctions meted out for different offenses and of the likely variation in the

penalties when specific victims or groups of victims are involved. It does not

even require any particular knowledge of, or experience with, the criminal jus-

tice system for people to realize, for example, that vulnerable victims (such as

children and the elderly), or handicapped victims (such as the deaf or the

blind) evoke more sympathy among the police, prosecutors and judges. Their

criminal victimization, particularly when it involves violence, 1s likely, there-

fore, to draw heavier penalties from the criminal courts than the victimization

of a less vulnerable person (Fattah, 1991 : 251).

(2) Less Accessible Targets

The fact that the elderly spend a great deal of time at home, much more so

than younger age groups, means that they will be less accessible as targets for a

variety of offenses, particularly those of a violent nature. It is true that they

might have their purse snatched while on the street, in a park, or while using

public transportation. But by and large they are not usually available as targets

for the violent crimes that are most often committed outside the home 1n the late

hours of the night. The fact that the vast majority of the elderly are no longer

active members of the work force also renders them immune to those offenses

committed in the work place or against those engaged in certain occupations.

(3) Less Exposed

One important tenet of the lifestyle and routine activity models 1s that

criminal victimization 1s closely linked to exposure to potential offenders, to

high risk situations and high risk environments. The higher the exposure, the

greater 1s the risk; the lower the exposure, the lesser 1s the likelihood of being

victimized.

The level and degree of exposure vary according to sociodemographic

characteristics such as age, gender, marital status, hence the different risk of

victimization along these variables. Since the elderly are generally less

exposed, their victimization rates are bound to be low.

Certain social activities, such as alcohol consumption in public entertain-

ment places, increase the level of exposure by bringing potential targets in

— 126 —

close proximity to a large pool of unknown, anonymous potential offenders.

This means that the probability of personal victimization 1s related to the fre-

quency of evenings out for leisure and social activities and to the amount of

time a person spends in public places at night (Hindelang, Gottfredson, and

Garofalo, 1978). It also explains why the victimization rate, particularly the

violent victimization rate, of the elderly 1s low.

Another important factor in explaining variations in victimiZzation risk and

victimization rates is association. Thus, individuals who are in close personal,

social, or professional contact with potential delinquents and offenders have a

higher risk of being victimized than those who are not. It follows that individ-

uals who share potential offenders' sociodemographic characteristics (being

young, male, single …) are more likely to interact socially with those potential

offenders. In so doing, their chances of being victimized by those offenders

increase (Cohen, Kleugel, and Land, 1981).

It also has been shown (Jensen and Brownfield, 1986) that activities

involving the mutual pursuit of fun involve a higher risk of victimization than

do activities that passively put people at risk. This is yet another reason why

the victimization rates of the elderly are low.

(4) Capable Guardians

The routine activity approach (Cohen and Felson, 1979) postulates that

the occurrence of direct-contact predatory victimizations is the outcome of the

convergence in space and time of three minimal elements : motivated offend-

ers, suitable targets, and absence of capable guardians. It has already been

noted (see above) that the elderly are not the most suitable, most attractive,

most desirable, or most accessible targets for criminal victimization. Further-

more, they are capable guardians whose presence at home for a good deal of

the time reduces the probability of their victimization. As Cohen, Kluegel, and

Land (1981) point out, all else equal, offenders prefer targets that are less well-

guarded to those that are more well guarded. Therefore, the greater the guardi-

anship, the less the risk of criminal victimization. This 1s confirmed by empiri-

cal research on target selection in residential burglary which shows that the

most important situational variable for the burglar is occupancy, that the vast

majority of burglars seek a house that is unoccupied (Maguire and Bennett,

1982).

(5) Less Involved in Illegal, Delinquent and Deviant Activities

Another factor contributing to the elderly's low victimization rate 1s their

negligible involvement in illegal, delinquent, and deviant activities. There 1s

ample evidence (Fattah, 1991) that delinquent and criminal activities are

strongly and positively related to criminal victimization because they fre-

quently result in conflict, disputes and altercations.

— 127 —

Moreover, many deviant and 1llegal pursuits, such as dealing in 1llicit

goods and services, fencing, trafficking in drugs, racketeering, loansharking,

trading sex for money, cruising, etc. lead those who engage in them to danger-

ous places at dangerous times and get them involved with marginal individuals

in dangerous transactions and situations. The casualness and anonymity of

some of these contacts, the potential for conflict, and the absence of social and

police protection create excellent opportunities for violent victimization and

place those involved in greater risk of being victimized than others (Fattah,

1991 : 345).

(6) More Afraid of Crime and of Victimization

Although the elderly are the least victimized, they seem to be the ones

most afraid of crime and victimization. À review of several studies on fear of

crime by Fattah and Sacco (1989) found most of them reporting a relationship

between age and fear with the elderly expressing greater fear than younger age

groups (Clemente and Kleinman, 1976; Kahana et al., 1977; Main and John-

son, 1978; Cook et al., 1981; Canada, 1985; Cook and Cook, 1976; Eve, 1985;

Garofalo, 1981; Skogan and Maxfield, 1981).

The high level of fear of crime suffered by the elderly seems to play an

important role in lowering their victimization rates by inducing them to adopt

certain attitudes and behaviors likely to reduce risk and minimize exposure.

Individuals who are afraid of becoming victims are less likely to take chances

than those who are not afraid, and are more likely than the latter to avoid risk,

particularly foolish, unnecessary and undue risks. For example, thy are not

likely to hitchhike, to accept rides or invitations from strangers; they will not

leave their doors or cars unlocked, and so on. Fear fosters caution, prudence

and vigilance. Ît injects a certain element of distrust and suspicion in the atti-

tude to others and thus shields those who are fearful against various types of

victimization (Fattah, 1993). Everywhere, the young are fearless, adventurous;

they feel invulnerable and invincible. The elderly, on the other hand, perceive

themselves as vulnerable, weak, and defenceless. They are afraid and therefore

unwilling to take risks. Às a result of this healthy caution they are able to avoid

most types of criminal victimization.

One outcome of fear is the adoption of certain defensive and avoidance

behaviors aimed at protection and risk reduction. Such behaviors are along the

most effective ways of reducing exposure and actual victimization. The risks

of criminal victimization are not evenly distributed in time or space. Personal

victimization, particularly violent victimization, occurs most frequently in the

evening and early night hours and on weekends (Fattah, 1991). À good part

takes place on the street or in other public places during the hours of darkness.

Personal victimization, particularly assault victimization, also occurs with a

certain frequency in, or close to, places of public entrainment. These temporal

— 128 —

and spatial patterns revealed by victimization research illustrate quite well

why it 1s that certain avoidance behaviors, like the ones generally adopted by

the elderly, could substantially reduce exposure and minimize the risks of

being victimized.

Fear has yet another positive effect. It acts as an injury-reducing mecha-

nism. Research on victims' response to face-to-face victimization (Fattah,

1984: Fattah: 1991) suggests that victim resistance is the variable most

strongly associated with the frequency and seriousness of injury sustained by

the victim. Active physical resistance 1s the response most likely to elicit a vio-

lent reaction from the victimizers (Hindelang et al., 1978). Because of their

high level of fear the elderly seem to offer less resistance than other age

groups. This lesser tendency to resist is shown by the U.S. National Crime

Survey data (U.S. Bureau of Justice Statistics, 1987) and by studies of Richard

Block (1989). As the elderly are more afraid than others they resist less and by

resisting less they tend to reduce the frequency and the seriousness of injury.

CONCLUSION

Although there 1s no solid scientific evidence supporting the claim that

violence 1s a problem for societys older population, violence against the eld-

erly has become a popular research topic. Unfortunately, most of the studies

have focused on the fashionable concept of ‘“elder abuse” and suffer from the

lack of an objective standardized definition, poor operationalization, and inad-

equate sampling. Other than elder abuse, data from victimization surveys pro-

vide some information on elderly victimization, in particular, its incidence and

its prevalence. The surveys, conducted in various countries, offer overwhelm-

ing evidence that the elderly, whether defined as those over 60 or over 65 years

old, are far less victimized than other age groups, both by offenses involving

violence, as by offenses against property. Despite the importance of such find-

ing. which contradicts widely held popular beliefs, to my knowledge, there has

been no attempt to develop a plausible theoretical explanation for this low vic-

timiZation rate of the elderly.

Using the findings of different studies, this paper has examined the types

of violence committed against the elderly and has tried to determine in what

respect it is different from violence perpetrated against other age groups. The

paper also tried to offer some theoretical explanations as to why it is that the

elderly are less frequently victimized than others. Research on target selection,

— 129 —

the life style model, the routine activity approach, as well as research on fear

of crime provided the basic elements of this theoretical explanation.

Table !

AUSTRALIA : AGE SPECIFIC DEATH RATES BY CAUSE

(RATE PER 100,000 AGE SPECIFIC POPULATION, 1989)

ÂAge

Causes

Under

1-14

15-24

25-44

45-54

55-64

65-74

75+

of Death

l year

years

year

year

year

year

year

year

Motor vehicle

44

5.3

33.8

171

11.2

13.2

17.5

28.6

traffic accidents

Accidental fails

0.4

0.3

0.8

1.3

1.8

3.5

11.9

109.5

Suicides and self-

0.0

0.3

13.8

16.6

15.6

15.7

17.5

17.2

inflicted injuries

Neoplams

2.8

4.3

5.6

273

114.8

408.3

851.8

1497.1

Heart disease

4.8

0.5

1.7

12.3

85.1

302.5

877.6 3260.7

Cerebrovascular

0.0

0.2

0.6

3.5

14.5

53.4

212.4

1229.3

disease

Homicide

4.0

0.6

2.2

2.8

2.4

1.0

1.2

1.9

Source : Australian Bureau of Statistics 1989a, 1989b.

Reprinted from James, M.P. (1992). The elderly as victims of crime, abuse and neglect. Trends and Issues

in Crime and Criminal Justice, N° 37 (June). Canberra : Australian Institute of Criminology.

— 130 —

Table 2

PERSONAL CRIMES, 1990 : VICTIMIZATION RATES FOR

PERSONS AGE 12 AND OVER, BY TYPE OF CRIME AND AGE OF

VICTIMS

Rate per !.000 persons in each age group

Type of crime

12-15

16-19

20-24

25-34

35-49

50-64

65 and over

AIl personal crimes

160

187.8

1748

114.0

76.6

44.0

24.6

Crimes of violence

6R.8

744

63.1

36.4

19.2

7.5

3.5

Completed

ﬁ7}

28.6

28.5

148

7.3

2.6

1.6

415

45.8

347

217

11.9

4.9

1.9

Attempted

Rape

1.8

1.4

1.9

0.6

04

0.1

0.1

Robbers

13.6

9.5

12,3

7.6

232

—

20

1.5

2.5

Completed

9.0

6.6

9.0

5.0

1.5

1.1

Withinjury

3.6

1.6

28

1.7

1.3

0.6

0.6

1.1

0.8

0.9

0.8

0.6

0.3

0.3

From serious assault

From minor assault

1.5

0.8

1.9

1.0

0.6

0.4

0.3

6.4

4.9

6.2

3.3

l 9

0.9

0.5

Wathout injury

Attempted

+6

229

3.3

2.6

0.8

0.7

0.4

O.&

04

0.7

1.3

0.2

0.3

0.2

Muth injury

From serious assault

0.3

0.3

04

0.6

0.0

0.0

0.1

From minor assault

0.5

0.1

0,3

0.7

0.2

0.3

0.1

2.5

Without injury

3.8

2.6

1.3

0.5

0.5

0.2

Assault

53.,3

63.5

489

28.,2

15.6

5.3

1.9

13.9

26.2

16.8

9.9

4.7

1.4

1.1

Aggravated

Completed withinjury

6.1

9.6

6.4

3.8

1.9

0.6

0.5

7.7

16.6

104

6.0

28

0.8

0.6

Attempted with weapon

Simple

394

37,2

32.1

18.3

10.9

3.9

0.8

Completed withinjury

11.1

11.6

11.8

5.6

2.8

0.6

0.1

Attempted with veapon

Üx}

"’ﬁ7

20.3

12,7

8.0

3.3

0.8

57

36.5

21.2

Crimes of theft

91

5

113.4

111.6

775

Completed

sY

?

107.2

1044

724

53.1

33.9

19.,8

2.3

6.2

'7'1

5.1

44

2.6

1.4

Attempted

Personal larceny with contact

18

4.0

5.5

3.5

3.4

3.6

3.3

0.3

0.1

1.4

1.0

0.6

0.8

Lo

Purse snatchine

Pocket pickine

1.5

38

41

2.4

1.8

1.7

3.4

Personal larceny

without contact

89.7

1094

106.1

741

S5.0

33.9

17.9

Completed

8R7,5

103.3

99.3

69.2

50.9

31.6

16.6

61.0

46.0

33.5

24.0

17.4

11.8

6.7

Less than $SSO

$S50 or more

3239

532

61.2

428

31.0

18.0

8.5

Amount not available

3.6

+1

45

2.3

2.5

1.8

1.3

9n

Attempted

6.2

6.8

49

4.1

2.4

1.3

Population in cach age group

13 469.110

13 738.870

18 017.100

43 178.160

52 061.980

32 888.270

29 920.340

Note : Detail May not add to total shown because of rounding.

Source : Criminal Victimization in the United States, 1990 - À National Crime Victimization Survey Report, Washineton, D.C. :

U.S. Dept. of Justice.

REFERENCES

Balvig, F. (1990). Fear of crime in Scandinavia - New Reality, new theory? Scandina-

vian Studies in Criminology, 11, 89-127.

Bilsky, W., Mecklenburg, E.. Pfeiffer, C., & Wetzels, P. (1992). Persônliches Sicher-

heitsgefüihl, Kriminalitätsfureht une Opfererfahrung. Hannover : Kriminologisches

Forschungsinstitut Niedersachsen.

— 131 —

Black, D. (1983). Crime as social control. American Sociological Review, 48 (Feb.), 34-

45

Block, R. (1989). Victim-offender dynamics in stranger to stranger violence : Robbery

and rape. In E.A. Fattah (Ed.), The plight of crime victims in modern society (pp.

231-251). London : Macmillan.

Canada. (1985). Criminal victimization of elderly Canadians. Canadian Urban Victimi-

zation Survey Bulletin (N°.6). Ottawa : Ministry of Solicitor General.

Canada. (1992). Homicide in Canada. Juristat. Ottawa : Statistics Canada, /2 (18, Oct.).

Chambliss, W. (1967). Types of Deviance and the Effectiveness of Legal Sanctions.

Wisconsin Law Review, Vol. 3, pp. 703-719.

Clarke, R.V. & Cornish, D. (1986). The reasoning criminal : Rational choice perspec-

tives on offending. New York : Springer.

Clemente, F., & Kleinman, M.B. (1976). Fear of crime among the aged. The Gerontolo-

gist, 16, 207-210.

Cohen, L.E., & Felson, M. (1979), Social change and crime rate trends : À routine activ-

ities approach, American Sociological Review, 44, 588-608.

Cohen, L.E., Kluegel, J.R., & Land, K.C. (1981). Social inequality and predatory crimi-

nal victimization : An exposition and test of a formal theory. American Sociologi-

cal Review, 46, 505-524.

Cook, F.L., & Cook, T.D. (1976). Evaluating the rhetoric of crisis : À case study of the

criminal victimization of the elderly. Social Service Review, 632-646.

Eve, S.B. (1985). Criminal victimization and fear of crime among the non-institutional-

ized elderly in the United States. Victimology, 10, 397-409.

Fattah, E.A. (1971). La victime est-elle coupable”? Montreal : Presses de l'Université de

Montréal.

Fattah, E.A. (1984). Victim's response to confrontational victimization : À neglected

aspect of victim research. Crime and Delinquency, 30 (1), 75-89.

Fattah, E.A. (1986). The role of senior citizens in crime prevention. Ageing and Society,

6, 471-480.

Fattah, E.A. (1993). Research on fear of crime : A methodological critique. In W. Bil-

sky, C. Pfeiffer & p. Wetzels (Eds.), Criminal victimization and fear of crime

among the elderly - Survey Research - past, present and future. Stuttgart : Enke.

Fattah, E.A., (1991). Understanding criminal victimization. Scarberough, Ont. : Pren-

tice Hall.

Fattah, E.A. (1993). Some reflections on crime, our response to crime, and the preven-

tion of family violence. Paper presented to the Directors' Research Workshop on

crime prevention. Ottawa : Jan. 26-27, 1993

Fattah, E.A., (1993). Victimization and fear of crime among the elderly : A possible

link? Keynote address to the Crime and Older People Conference. Adelaïde, Aus-

tralia : Feb. 23-25, 1993.

Fattah, E.A., & Sacco, V.F. (1989). Crime and victimization of the elderly. New York :

Springer.

Felson, R.B., & Steadman, H.J. (1983). Situational factors in disputes leading to crimi-

nal violence. Criminology, 21 (1), 59-74.

Garofalo, J. (1981). The fear of crime : Causes and consequences. The Journal of Crim-

inal Law and Criminology, 72, 839-857.

Greenberg, M.S., & Ruback, R.B. (1992). After the crime - victim decision makineg.

New York : Plenum Press.

— 132 —

Hepburn. J.R. (1973). Violent behavior in interpersonal relationships. The Sociological

Quarterly, 14, 419-429.

Hindelang, M.J. et al. (1978). Victims of personal crime : An empirical foundation for a

theory of personal victimization. Cambridge, MA : Ballinger.

Hough. M.. & Mayhew, p. (1983). The British Crime Survey. Home Office Research

Study No. 76. London : H.M.S.0O.

James. M.P. (1992). The elderly as victims of crime, abuse and neglect. Trends and

Issues in Crime and Criminal Justice, No. 37, June. Canberra, Australia : Austral-

lan Institute of Criminology.

Jensen. G.F. & Brownfield. (1986). Gender, lifestyles, and victimization : Beyond rou-

tine activity. Vro/lence and Victims, 1 (2), 85-99.

Jones. G.M. (1987). Elderly people and domestic crime. British Journal of Criminologx,

27,191-201.

Kahana, E. et al. (1977). Perspective of aged on victimization, ‘’ageism” and their prob-

lems in urban society. The Gerontologist, 17, 121-129.

Kennedy, L.W.. & Silverman, R.A. (1990). The elderly victim of homicide : An applica-

tion of the routine activities approach. The Sociological Quarterly, 31 (2), 307-

319.

Maguire, M.. & Bennett. T. (1982). Burglary in a dwelling. London : Heinemann Edu-

cational Books.

Main. B. & Johnson, A. (1978). Whole persons after sixty : Crime and the elderly.

Washington, DC : U.S. Dept. of Health, Education and Welfare.

Sacco, V.F.. & Glackman, B. (1987). Vulnerability, locus of control, and worry about

crime. Canadian Journal of Community and Mental Health, 6,99-111.

Skogan, W.G.. & Maxfield. M.G. (1981). Coping with crime. Beverly Hills : Sage Pub-

lications.

Sparks, R.. Genn, H, & Dodd, D. (1977). Surveving victims. London : J. Wiley & sons.

Sykes, G. & Matza, D. (1957). Techniques of neutralization : À theory of delinquency.

American Sociological Review, 22, 664-670.

Trevethan, S. (1992). Elderly victims of violent crime. Juristat. Ottawa : Canadian Cen-

tre for Justice Statistics, /2 (15) (August.).

United States. (1981). Crime and the elderly. Washington, DC : Dept. of Justice, Bureau

of Statistics. United States Government Printing Office.

Whitaker, C.J. (1987). Elderly Victims. Bureau of Justice Statistics Special Report.

Washington, DC : U.S. Government Printing Office.

Yin. P. (1980). Fear of crime among the elderly : Some issues and suggestions. Social

Problems. 27, 492-504.

RESUME

Bien qu'aucun support scientifique solide ne confirme que la violence soit

un probleme pour la population âgée, les violences contre les personnes âgées

représentent un thème de recherche en vogue. Malheureusement, la plupart des

recherches se sont concentrées sur le concept à la mode d

f,

a

bus contre des per-

sonnes âgées” et souffrent d'un manque de définition objective standardisée,

— 133 —

d'une opérationalisation pauvre, et d'un échantillonnage inadéquat. Utilisant

les résultats de différentes études, l'auteur examine les types de violence com-

mises contre des personnes âgées et tente d'établir ce qui les différencie des

violences dirigées contre les autres classes d'âges. Il propose également certai-

nes explications théoriques du moindre taux de victimization des personnes

âgées, en s'appuyant sur les données qu'apporte la recherche actuelle sur la

sélection des cibles, le modèle de style de vie, l'approche des activités routiniè-

res, et le sentiment d'insécurité.

SUMMARY

Although there is no solid scientific evidence supporting the claim that

violence 1s a problem for society's older population, violence against the eld-

erly has become a popular research topic. Unfortunately, most of the studies

have focused on the fashionable concept of “elder abuse” and suffer from the

lack of an objective standardized definition, poor personalization, and inade-

quate sampling. Using the findings of different studies, this paper examines the

types of violence committed against the elderly and tries to determine in what

respect it is different from violence perpetrated against other age groups. The

paper also tries to offer some theoretical explanations as to why t 1s that the

elderly are less frequently victimized than others. Research on target selection,

the life style model, the routine activity approach, as well as research on fear

of crime provide the basic elements of this theoretical explanation.

RESUMEN

Aunque ninguna base cientffica sôlida confirma la idea que la violencia

sea un problema para la poblacién de edad avanzada, las violencias ejercidas

contra las personas de edad representan una teorfa de investigaciôn a la moda.

Desgraciadamente, la mayor parte de las investigaciones se han centrado en

torno del concepto de moda del ‘“abuso contra las personas de edad”, carecen

de una definiciôn objectiva ‘“standardizada’’, poseen una generalizaciôn pobre

y un muestreo inadecuado. Utilizando los resultados de diferentes estudios, el

autor examina los tipos de violencias cometidas contra personas de edad e

intenta establecer lo que las diferencia de las violencias dirigidas contra las

otras clases de edades.

Propone igualmente ciertas explicaciones tebricas de la baja tasa de vic-

timizaciôn de las personas de edad apoyändose en los datos aportados por la

investigaciôn sobre la selecciôn de las victimas, el modelo de estilo de vida, el

modo de abordar las actividades rutinarias y el sentimiento de inseguridad.

— 134 —

Victimization and crime

Normative and Individual Standards of Evaluation

Wolfgang BiLsky and Peter WETzELS

Kriminologisches Forschungsinstitut Niedersachsen (KFN)

Hannover, Federal Republic of Germany

1. INTRODUCTION

In 1991 the Criminological Research Institute of Lower Saxony (KFN)

received a grant from the Federal Ministry for Family Affairs and the Elderly

(BMFuS) to conduct a nationwide representative victim survey in spring 1992.

According to its title ‘“Feelings of Personal Safety, Fear of Crime and Vio-

lence, Victimization of the Elderly”, this survey focuses primarily on the indi-

vidual's perspective, paying special attention to the situation of the elder

person: His or her subjective perception, anticipation, experience, and under-

standing of crime and violence 1s of central interest in this study. Secondly, the

survey is expected to provide data on unreported crime. Since official crime

statistics contain only information about detected crime, these supplementary

data are needed to arrive at a better understanding of crime on the whole and

on its individual and social implications.

Researchers from different disciplines have dealt with surveying fear of

crime and criminal victimization in the past, including criminology, jurispru-

dence, psychology, sociology, and victimology. To our knowledge, however,

this line of research has rarely been linked to main stream research on social

justice as conducted by social psychologists, and vice versa (e.g., Bierhoff,

Cohen, & Greenberg, 1986; Lerner & Lerner, 1981; Mikula, 1980). This 1s

evident from the respective literature and reflected in terminology, too. The

term justice, for example, is rarely used in survey literature on fear and

victimization. Yet, when people are asked to report past experience of victimi-

Zation or to indicate whether and to what extent they are afraid of becoming a

victim of a criminal act, problems of justice are at issue.

When trying to unfold and conceptually rephrase the research questions to

be answered by our survey study we drew on concepts and findings from dif-

ferent research domains in order to profit from next-door theories and research

experience. Thus, we scanned research literature on criminal victimization

— 135 —

(e.g., Fattah, 1991, 1993), well-being (e.g., Mayring, 1991), adjustive behavior

(e.g., Levy & Guttman, 1989), stress and coping (e.g., Krohne, 1988), as well

as critical life events and perceived justice (e.g., Filipp, 1990; Montada, 1993).

The first part of this paper sketches out some of the connections found

between these domains of research.

The second part, then, focuses on one small and special segment of our

research: It summarizes first empirical findings that relate to a structural analy-

sis of events that are perceived to threaten feelings of personal safetv. This

term originates from the ministry's invitation of tenders for the survey project.

Since it is an everyday term it had to be linked to established scientific con-

cepts that are relevant for research on fear of crime and victimization.

2. VICTIMIZATION

AND RELATED CONSTRUCTS

2.1 Victimization and Justice

Âs indicated before, comparing self-report data to official crime statistics

Is of considerable practical interest when trying to get a reliable estimate of

overall crime and delinquency, 1.e., when trying to get information that goes

beyond reported crime. However, one major problem implied in survey

research becomes evident when considering ways of whether and how to relate

self-reports to official sources.

When lay persons are asked to indicate how often they have been victim-

ized by criminal acts within a defined period of time, they have to indicate

whether or not a special personal experience fits into one out of several distinct

categories of crime. Leaving problems of memory out of consideration, many

victimizing events can unambiguously be classified according to criteria of

occurrence or non-occurrence, both from the victim's and the bystander's per-

spective. Answering a question about bicycle theft, for instance, will probably

cause no problem at all. Even more complicated judgments can often be

facilitated by using survey-questions that relate to concrete behavioral acts or

incidences instead of abstract legal categories.

However, as soon as an event 1s likely to affect the self-concept of a per-

son, 1.e., as soon as ego-involvement and ego-threat come into play, judgmen-

tal processes may become more complex. According to Bayley (1991, p. 53):

People are victims 1f and only 1f (1) they have suffered à loss or some sig-

nificant decrease in well-being unfairly or undeservedly and in such a

— 136 —

manner that they were helpless to prevent the loss; (2) the loss has an

identifiable cause; and (3) the legal or moral context of the loss entitles the

sufferers of the loss to social concern.

Each of these preconditions of victimhood includes evaluations according

to criteria that may vary, depending on the perspective taken. Obviously, indi-

vidual thresholds come into play that reflect the ability and readiness to toler-

ate distressing or harmful events without feeling victimized. The harmfulness

of an event, the probability of its occurrence, and the personal vulnerability as

perceived by the afflicted person may differ significantly from a bystander's

point of view. Consequently, categorizations of an incidence may fall apart and

people may consider themselves victim of crime although this judgment does

neither fit the perception of others nor bear legal examination.

Following this line of reasoning means that people (here, interviewees) at

least partly refer to some more or less explicit subjective standard of justice

when qualifying an event as criminal victimization. On the other hand, crime

statistics classify acts as criminal according to normative standards of justice

only, i.e., according to standards of penal law. While normative or ohjective

standards (cf., Lind & Tyler, 1988) and subjective standards are likely to over-

lap, they will rarely be identical, however.

In addition, there are cases in which people have definitively been victim-

1Zed according to normative (legal) standards although they do not understand

their situation this way. This discrepancy in judgment can be attributed to dif-

ferent reasons, depending on the respective situation: Illegal acts, for instance,

may be classified as trifle by the affected person (e.g., in a case of petty

offence) and do not result in feelings of injury or injustice, therefore. Or, peo-

ple may not even know that they have been victimized, even 1f 1llegal acts

affecting them clearly deviate from petty offence (e.g., fraud).

The situation 1s further complicated by the fact that anticipating or experi-

encing crime, 1.e., suffering from fear of crime or victimization, 1s likely to but

need not coincide with individual feelings of injustice. This becomes evident

in those situations, for instance, in which persons understand their own fear or

VictimiZzation as a logical - or just - consequence of their previous behavior.

Here, notions of fear and victimization are related to the (anticipated) injury

resulting from interpersonal interaction; feelings of justice, on the other hand,

relate to the overall evaluation of the interaction process and its underlying

conditions (this latter consideration is closely linked to the notion of proce-

dural and distributive justice; cf., Mikula, 1980). When dealing with crime, we

expect, however, that there is a considerable overlap between anticipating or

experiencing injury and feelings of injustice.

— 137 —

Distinguishing crime as recorded in official crime statistics from victimi-

Zation as perceived by the individual, 1.e., applying objective versus subjective

standards of justice, comes close to differentiating between stress and strain

(cf., Kahn, 1970; Spielberger, 1972). While stress 1s used to refer to extraneous

stimuli or situations classified as dangerous or noxious by an external criterion

(e.g., by experts or judges), strain refers to an individual's perception and reac-

tion to these stimuli - whether experienced or anticipated (cf., Laux, 1983).

Some of the conceptual distinctions made thus far are summarized in the fol-

lowing Venn diagram (see Figure 1).

Figure !

OVERLAP OF CRIME AS DEFINED BY LAW, PERCEIVED INJURY

AND JUSTICE

Stress

Crime

/ —(egal definition)

Injustice

Injury

(perceived)

(perceived)

Strain

As can be seen, victimization that results from experiencing injustice and/

or injury (i.e., strain) overlaps only partly with crime, 1.e., victimization as

defined according to legal categories (stress). Consequently, data from official

statistics and data from survey research cannot be expected to overlap per-

fectly.

2.2 Victimization and Well-being

Of course, criminal victimization is but one special form of victimization.

Thus, studying it in some detail raises the question of its importance relative to

other related topics of research. In order to answer this question systematically

we tried to specify a theoretical frame of reference for comparing different

— 138 —

forms of victimization. Sticking to the above mentioned interrelation between

injury and injustice, this frame of reference should also be helpful in identify-

ing qualitatively distinct situations in which justice 1s at stake.

2.2.1 Different Forms of Victimization

Since victimization is a universal phenomenon, a great number of taxono-

mies of victimization is conceivable. Therefore, some criterion is needed in

order to select one alternative that serves our purposes best. In his systematic

approach to analyzing criminal victimization Fattah (1991) chose the source of

victimization as a criterion for constructing such a taxonomy. His analyses

largely overlap with our own research interests. Therefore, Figure 2 summa-

rizes his taxonomic approach (cf., Fattah, 1991, p. 7).

Figure 2

SOURCES OF VICTIMIZATION (cf., Fattah, 1991 p. 7)

Victimization

By nature

By human action

—

By others

By oneself

(Auto-victimization)

Âs a by-product

By concrete

of science

human action

and technology

By torts and other

By crime

non-criminal

action

By structural

VvictimiZzation

— 139 —

2.2.2 Well-being

Instead of fitting criminal victimization into a comprehensive and general

framework of victimization, one may also understand (criminal as well as

other forms of) victimization as a negatively evaluated deviation from an oth-

erwise neutral or positive state of being (see Bayley's definition of victim,

cited above).

If this perspective 1s chosen, research on wel/-being (e.g., Abele & Becker,

1991; Andrews, 1986; Levy, 1990; Strack, Argyle, & Schwarz, 1991) and

quality of life (e.g., Campbell, Converse, & Rodgers, 1976; Schalock, 1990)

may serve as an alternate frame of reference to evaluate the relative impor-

tance of findings on fear of crime and victimization and to integrate them into

an established network of empirical results and theoretical reasoning.

However, constructs and operationalizations used in this research domain

are all but homogeneous and well defined. Thus, Mayring (1991, p. 53) points

out that according to empirical analyses at least four aspects of well-being

should be differentiated; they are outlined in Figure 3.

Figure 3

ASPECTS OF WELL-BEING (cf., Mayring, 1991) p. 53)

subjective well-being

actual well-being

habitual well-being

lack of

life-

enjoyment

happiness

strain

satisfaction

— 140 —

When trying to relate victimization to these subconcepts of subjective

well-being, /ack of strain seems to be most suited to complement victimiza-

tion. Scanning the respective literature shows that this subconcept 1s in the

focus of stress and coping research which deals, both, with daily hassles and

critical life events (e.g., Brüderl, 1988; Filipp, 1990; Krohne, 1988; Lazarus &

Folkman, 1984).

2.2.3 Adjustive Behavior

Our attempt to interrelate such seemingly diverse concepts as fear of

crime, victimization, injury, justice, well-being, stress, and coping 1s further

supported by the work of Levy and Guttman (Levy, 1990; Levy & Guttman,

1989). Based on the Facet Theory approach developed by Guttman (cf., Borg,

1993), these authors propose a general framework for adjustive behavior

which incorporates both, well-being and coping as special cases. According to

them

well-being items assess satisfaction concerning the situation or treatment

of a social group [including the self] in some life areas. Expressing satis-

faction can be regarded as one type of adjustive behavior towards a situa-

tion. This is of course quite different from coping, which is another

variety of adjustive behavior. Previous literature distinguishes among var-

ious types of coping processes like “adaptive” and ‘‘defensive” (cf., Laza-

rus 1968), but does not offer any technical definition for the concept

(Levy & Guttman, 1989, p. 457).

Such a technical definition is provided by Levy and Guttman (Levy &

Guttman, 1989; also in Levy, 1990). Since fear can be specified as another

form of adjustive behavior within this conceptual framework as well (cf.,

Borg, 1993), we drew on this approach when conducting structural analyses on

threats to personal safety (see below).

2.2.4 Synopsis

Thus far, we tried to show that crime and (criminal) victimization may be

distinguished in a similar way as stress and strain: While crime as specified by

official statistics may be equated with an external stressor that is labeled

according to some normative criteria of justice, victimization 1s mainly used to

denote a person's experience of injury that is associated with strain. This expe-

rience is supposed to be closely linked to perceived injustice as regards subjec-

tive (as opposed to objective) standards of justice.

Next, we tried to locate criminal victimization within a general frame-

work. Thus, distinguishing between different sources of victimization might

— 141 —

be one way for assessing the relative importance of research on (anticipated or

real) criminal victimization. Focusing the problem from another perspective,

both, fear of crime and victimization, may as well be regarded as a negative

complement of well-being. To put it differently, victimization and fear of crime

can be understood to result from stressful events that are perceived to nega-

tively affect the balanced state of well-being. Whether external stressors are

perceived as threatening this balanced state or not is at least partly depending

on the individual's appraisal of the respective situation. This appraisal will

probably be influenced by the perceived likelihood of managing stressful situ-

ations, 1.e., by the availability of personal resources and coping competencies.

The general concept of adjustive behavior lends itself to integrating these con-

siderations in one common frame of reference.

3. THREATS TO PERSONAL SAFETY

AND CRIMINAL VICTIMIZATION

3.1 Well-being and Personal Safety

Before setting up the final instrument to be used in our nationwide survey,

several preparatory studies were conducted !. an interview study (study |) in

order to get additional information about the different topics to be covered by

this survey, a qualitative pretest (study 2) of the preliminary survey instrument

Wwhich aimed at clarifying the concepts analyzed, and a comprehensive study

(study 3) for testing the instrument. Besides others, these studies were to pro-

vide evidence about the lay concept of personal safety.

According to findings from studies | and 2, the notion of personal safety

is closely linked to the absence of daily hassles, critical life events, and anxi-

ety; it includes crime as one special form of stressful events. When asked

about the relation between the concepts of interest, 99% of the subjects inter-

viewed in study 3 (N=213) stated that feelings of personal safety are important

for well-being. Furthermore, incidences and events mentioned to threaten per-

sonal safety were mostly related to those life areas that are known to be rele-

vant for well-being (e.g., Levy, 1990). In sum, the absence of stimuli that are a

challenge to a balanced state of well-being is characteristic of the lay concept

of personal safety.

(})

The different studies belonging to this survey project were conducted in cooperation

with ZUMA, Mannheim, and GFM-GETAS, Hamburg.

— 142 —

Because of the similarity of connotations of well-being and personal

safety, we expect empirical analyses of these (lay) concepts to reflect this sim-

ilarity, too. More precisely, asking people about how much their feelings of

personal safety are threatened by different stressful events and submitting their

answers to multidimensional analysis is supposed to yield structures of stres-

sors that resemble those known from research on well-being (cf., Levy, 1990

Levy & Guttman, 1989). Knowing such structures is a necessary precondition

for systematically describing criminal victimization relative to other stressors

that affect well-being negatively. In order to arrive at testable hypotheses, we

reformulated this assumption in terms of Levy and Guttman’s (1989) facet

approach to adjustive behavior.

3.2 Facettine Threats to Personal Safety

Facet Theory is an integrated approach to research (cf., Canter, 1985;

Dancer & Hans, 1990; Shye, 1978). It provides a language for designing

empirical research, i.e., for making explicit what observations are to be made

under what conditions, as well as a companion set of multivariate statistical

procedures for data analysis (cf., Borg, 1993). In this context the term /acet 1s

used to specify one particular aspect supposed to be theoretically relevant

when observing a phenomenon of scientific interest. Categories used to

describe this aspect of the observation, i.e., the elements of the facet, must be

mutually exclusive and exhaustive. Having specified the facets of interest and

their respective elements the logical relations among the facets as well as

among their elements are defined. This 1s done by specifying the formal rela-

tion of the facets under investigation in a mapping sentence. Such a sentence

can be read from top to bottom like a sentence in ordinary language by com-

bining the appropriate elements (1…n) of the different facets (A..Z) in order to

specify a special case of the phenomenon under study. Having specified

research questions accordingly, the researcher is finally able to check whether

his conceptual distinctions are reflected by empirical observations.

Interpreting reactions to threatening stimuli as one special form of

adjustive behavior, we adopted the aforementioned Levy and Guttman

approach to define fear of victimization. ? Since we were only interested in

problematic conditions of life, the respective element of their conditions facet

(2)

Levy and Guttman used five different content facets in analyzing adjustive behavior:

Modality of behavior (facet A), directive of behavior (facet B), conditions to which the adju-

stive behavior refers (facet C), environment (facet D), and life areas (Facet E: cf., Levy,

1990, p. 172). According to our interest in threats to personal security, fear of victimization

was defined by elements a9 and b4 of facets À and B, respectively (cf., Borg, 1993).

— 143 —

(C) was elaborated. According to Young (1991, p. 30), three primary injuries

can be 1dentified as causing major distress to victims:

financial injury or loss, physical injury or loss, and emotional trauma. Ît 1s

these injuries, as well as what some have called the second injury (addi-

tional insult caused not by the criminal directly, but instead, by the very

agencies or institutions that should be helping), that are appropriate to

examine in the wake of survival.

While we need not distinguish primary from secondary victimization (or

injury) at this stage of investigation (see, e.g., Christie, 1977; Fattah, 1991, for

further discussion), differentiating among material, physical, and psychologi-

cal injuries 1s expected to contribute to a better understanding of individual

experiences of victimization; therefore, the conditions facet C was expanded

accordingly. In addition, we suppose that elements of this facet are ordered in

such a way that psychological threat is central to the individual and material

peripheral, with physical threat in the middle. 3

Two other facets were directly adopted from Levy and Guttman: The envi-

ronment facet (D) comprises two elements, labeled primary and secondary

environment. Primary (social) environment 1s usually defined by close and

intimate face-to-face interaction with other social agents, e.g., family mem-

bers, peer groups, etc., as well as personal (emotional) involvement. Second-

ary environment, in contrast, is mostly used as a complementary (rest)

category, referring to less frequent or less direct social contacts and experi-

ences (cf., Kruse, 1972). The life areas facet (E) on the other hand distin-

guishes between different categories of concern, i.e., health, work, economy,

social, etc. Figure 4 displays the modified mapping sentence of adjustive

behavior which formally restates the hypothesized structure of events that

threaten personal safety.

3.3 Method

Having specified our assumptions, we next give a rough outline of that

part of study 3 which served for testing our structural hypotheses.

Instrument. An 1tem list of 15 threatening events was included in the pre-

test form of our survey instrument. Îtems are based on literature on victimiza-

tion and on findings from studies | and 2. Each of them was characterized a

priori to empirical analyses by a combination of elements belonging to the dif-

(3)

We are grateful to Ingwer Borg for commenting on an earlier draft of this paper. He

proposed to conceive injury as an ordered facet.

— 144 —

ferent facets of the mapping sentence in Figure 4 (i.e., a structuple; see list A9

in the appendix).

Statements are presented orally in face-to-face interviews and subjects

indicate the extent to which their feelings of personal safety are affected nega-

tively by these events on four point Likert scales.

Figure 4

MAPPING SENTENCE OF ADJUSTIVE BEHAVIOR:

THREATS TO PERSONAL SAFETY

Person (x) feels that his/her personal safety is threatened

C

(c1 material)

by

(c2 physical)

injury as a consequence of events in his/her

(c3 psychological)

E

(el health)

D

(e2 work)

(d1 primary)

(e3 economy)

(d2 secondary)

social environment in life area

(e4 social)

(d3 unspecified)

(e6 residence)

(e8& unspecified)

R

(low)

——

(to)

feelings of threat.

(high)

Sample. Participants in this pilot study ranged from 16 to 90 years of age.

On the whole, 213 subjects were interviewed, including 109 female and 103

male subjects (one missing case) from both. the old (152) and the new (61)

states of the Federal Republic of Germany.

Data _ analysis. Spearman correlations were computed for the respective

items. The correlation matrix was then submitted to Similarity Structure Anal-

ysis (SSA), a special form of multidimensional scaling (cf., Borg & Lingoes,

1987). SSA allows us to represent variables as points in multidimensional

space such that the distances between the points reflect the empirical relations

among the variables. Consequently, variables which are conceptually similar

— 145 —

as specified by the mapping sentence in Figure 4 are predicted to lie in one

common region; this region can be separated from other regions on two-

dimensional projections of an n-dimensional solution of SSA according to

well defined rules (see Levy, 1985).

3.4 Results

À three-dimensional solution was chosen for describing the data set. This

solution seemed adequate with respect to formal criteria (Shepard diagram;

coefficient of alienation .12) and item content. Results are displayed in Figures

S and 6.

As can be seen from the projection of items on dimensions 1x2 (Figure 5),

the three elements of injury, material, physical, and psychological, could be

partitioned in the predicted order according to the hypothesized axial role of

facet C (cf., Levy, 1985, for the roles of facets in partitioning space): Solid ver-

tical lines could be drawn in such a way that all items characterized by the

same element of C (see Appendix) are located in the same slice of the plot.

Social environment (facet D) shows up on the same two-dimensional pro-

jection: Events assigned to primary and secondary environment according to

our mapping of items (appendix) are clearly separated by a broken horizontal

line on dimensions 1x2, thus forming a so-called duplex with the elements of

facet C.

According to Levy and Guttman (1989), the environment facet is an

ordered facet. Such facets may either play a modulating role (1.e., result in cir-

cular bands around a common origin) or an axial role (i.e., result in slices) in

partitioning space. In past research, environment usually showed up on the

same projection as life areas, playing a modulating role (Levy, 1985). In

our study, in contrast, this facet is part of a duplex, as indicated above (Figure

5). However, this structural deviation from former studies does not affect the

theoretical usefulness of the environment facet. Instead, our findings clearly

support the conceptual distinction specified in our mapping sentence.

The second plot, formed by dimensions 1x3 (Figure 6), supports the dis-

tinction of life areas as specified by facet E. In this plot, one peculiarity needs

mentioning, however: Items classified as social separate into two distinct

regions. This split was not predicted by the mapping of items; yet, its inter-

pretation does not make difficulties since items can easily be interpreted as

indicating either social conflict or social dependence.

— 146 —

Figure 5

THREE-DIMENSIONAL SSA OF THREATS TO PERSONAL SAFETY:

DUPLEX OF INJURY AND SOCIAL ENVIRONMENT (dimensions 1x2)

l

PHYSICAL

crime

env. damagî

war

” nat. disaster

SECONDARY

° inflation

healt service”

—

-—

—

—

—

“ loss Job

—

R pension

—

—

—

illness

accident

losZ s.o. close

Dimension 2

°dependence

PRIMARY

°fam. fights

_dependence

loss apartment ,

MATERIAL

PSYCH.

|

Dimension |

Both social regions are separated by a sector of items that remained

unclassified with respect to the life areas facet a priori to our study. Closer

examination suggests that these items relate to highly unpredictable events that

are not under social control (labeled chance, therefore). Whether these events

originate from nature or from human action (cf., Fattah, 1991) cannot be

answered by our data since operationalizations used do not convey any infor-

mation with regard to this distinction.

Despite the aforementioned deviations, the arrangement of life areas in

our study 1s very similar to that found in two separate studies on personal well-

being (cf., Levy, 1990, pp. 164-167). This may be taken as first evidence of a

general, yet to be elaborated rationale for the circular order of life areas (with

regard to values, such a rationale has been given by Schwartz and Bilsky,

1987, for instance).

— 147 —

Finally, the primary-secondary split of environment could be identified on

dimensions 2x3 again. However, since elements of this facet have already been

separated on dimensions 1x2, this split does not contribute any additional infor-

mation to our structural analysis (the respective plot was omitted, therefore).

Figure 6

THREE-DIMENSIONAL SSA OF THREATS TO PERSONAL SAFETY:

LIFE AREAS (DIMENSIONS 1x3)

[

Ï

SOCIAL CONFLICT

RESIDENCE

CHANCE

loss job ;

War

[

env. damage =

[

P nat. disaster

fam. fights

loss apartment

v accident

°

[

chance

crime

WORK

SOCIAL |

DEPENDENCE

dependen°ce ‘healt service

inflation

Dimension 3

[

loss s. 0. close

[

[

illness

pension

ECONOMY

HEALTH

J

_

Dimension !

3.5 Discussion

When categorizing our items according to the mapping sentence (see

appendix), crime (item A9F) was not specified with regard to injury (facet C) a

priori to analysis. Now, as can be seen from the results of our study (Figure 5),

this item lies on the borderline separating material from physical injury. This

placement may be taken as evidence that contrary to everyday practice crime

as well as fear of crime (cf., Bilsky, 1993; Skogan, 1993) should not be treated

as homogeneous constructs. Instead it suggests to adopt the distinction

between personal and property crime known from criminological literature.

— 148 —

This distinction has been incorporated in the final version of the survey instru-

ment, therefore.

According to this specification of crime, we expect a clear empirical

assignment of personal and property crime to physical and material injury,

respectively, in further studies. In addition, when running separate analyses, a

closer association between personal crime and psychological injury might

come to light, too; such an association was unlikely to be identified in the

present study because of the fuzzy crime concept used. Aside from testing the

aforementioned expectations, investigating the placement of different forms of

crime within the life areas split is of considerable conceptual interest, too.

Another feature of our results needs commmenting, too. As Figure 5

shows, the unspecific, fuzzy crime concept used in this study 1s clearly associ-

ated with secondary environment. Its obvious dissociation from primary envi-

ronment, i.e., from family, friends, and intimate relationships, suggests that

interviewees understand crime as a very special form of deviant behavior. In

this restricted sense, this lay concept stands for an external threat that origi-

nates from and is attributed to strangers; obviously, it is not associated with

intimate friends or family members. This view conforms to interpreting crime

as an outstanding and rare event that does not fit into everyday experience.

Instead, it is known from vicarious experience and from the media, only.

It is an open secret, however, that intra family violence 1s a social problem

that needs special concern. There exists a wide variety of acts ranging from

subtle to brutal forms of violence that affect children, middle-aged and the eld-

erly likewise (e.g., Sacco, 1993). Many of these violent acts would qualify for

legal prosecution - if reported to judicial authorities. However, there seems to

be some psychological or moral threshold preventing them from being labeled

criminal in everyday language. This view 1s supported, for instance, by empiri-

cal findings from American studies. The following citation from Straus and

Gelles (1989, p. 99) on spouse abuse may serve as an 1llustration:

The huge discrepancy between the National Crime Survey (NCS) rate of

2.1 and the National Family Violence Survey rate of 161 .

raises the

question of why the NCS rate 1s so low. The most likely reason for the tre-

mendous discrepancey lies in differences between the context of the NCS

versus the other studies. The NCS 1s presented to respondents as a study

of crime, whereas the others are presented in studies of family problems.

The difficulty with a ‘crime survey' as the context for determining inci-

dence rates of intrafamily violence is that most people think of being

kicked by their spouse as wrong, but not a crime' in the legal sense.

— 149 —

These latter findings indicate that operationalizing crime by focusing on

behavioral and not on evaluative criteria is a necessary prerequisite for getting

valid information about the quality and the frequency of deviant, delinquent

behavior in both, the public and the privat sphere.

4. SUMMARY

Starting from the task of investigating ‘“Feelings of Personal Safety, Fear

of Crime and Violence, Victimization of the Elderly” in a nationwide survey

study, we looked for a way how to integrate this research objective into a net-

work of findings and theoretical approaches from different disciplines in order

to get beyond mere aggregation of theoretically unrelated data. In this attempt,

we examined and tried to interrelate several different concepts, e.g., victimiza-

tion, justice, injury, stress, strain, coping, well-being, quality of life, and

adjustive behavior.

Summarizing our reasoning top down, we specified well-being as a bal-

anced, more or less stable state that is characterized by the absence of strain

(cf., Mayring, 1991). Strain in turn was conceptually linked to the notion of

perceived injustice and injury; it is understood as a challenge to feelings of

personal safety and may be caused by a diversity of stressful, i.e., victimizing,

events as perceived by the individual (cf., Fattah, 1991). According to Young

(1991) and Levy (Levy, 1990; Levy & Guttman, 1989), these events can be

categorized as material, physical, or psychological forms of injury within the

primary or secondary environment of the individual, affecting negatively dif-

ferent areas of life that are important to subjective well-being.

The aforementioned statements on the distinctive features of stressful

events were largely supported by results from a study with 213 female and

male subjects. Similarity Structure Analysis of responses to an item list of

stressful events revealed a partitioning of items that was closely linked to theo-

retically grounded expectations.

Having thus found a general framework for describing stressful events

with regard to personal safety, we are now in the position to further elaborate

and to locate criminal victimization relative to other stressors supposed to

affect subjective well-being. Since different subpopulations, e.g., juveniles,

mid-aged, and the elderly, are likely to attribute different weights to the same

kind of stressors this may be particularly helpful when interpreting data on dif-

ferent forms of fear of crime and criminal victimization in a nationwide repre-

sentative survey.

— 150 —

REFERENCES

Abele, À.. & Becker, P. (Eds.). (1991). Wohlhefinden. Weinheim: Juventa.

Andrews, F.M. (Ed.). (1986). Research on the quality of life. Michigan: Survey

Research Center, Institute for Social Research, The University of Michigan.

Bayley, J.E. (1991). The concept of victimhood. In D. Sank & D.1. Caplan (Eds.), To be

a victim (pp. 53-62). New York: Plenum.

Bierhoff, H.W., Cohen, R.L., & Greenberg, J. (Eds.). (1986). Justice in social relations.

New York: Plenum.

Bilsky, W. (1993). Blanks and open questions in survey research on fear of crime. In W.

Bilsky, C. Pfeiffer, & P. Wetzels (Eds.), Fear of crime and criminal victimization

(pp. 9-19). Stuttgart: Enke.

Borg, 1. (1977). Some basic concepts of facet theory. In J.C. Lingoes (Ed.), Geometric

representations of relational data (pp. 65-102). Ann Arbor, MI: Mathesis Press.

Borg, I. (1993). Facet theory: À systematic approach to linking survey research to

theoretical reasoning. In W. Bilsky, C. Pfeiffer, & P. Wetzels (Eds.), Fear of crime

and criminal victimization (pp. 99-128). Stuttgart: Enke.

Borg, I. & Lingoes, J. (1987). Multidimensional similarity structure analvsis. New

York: Springer.

Brüderl, L. (Ed.). (1988). Theorien und Methoden der Bewältigungsforschung. Wein-

heim: Juventa.

Campbell, A.. Converse, Ph. E., & Rodgers, W. L. (1976). The quality of American life.

New York: Russell Sage Foundation.

Canter, D. (Ed.). (1985). Facet theory. New York: Springer.

Christie. N. (1977). Conflicts as property. British Journal of Criminology, 15(4), 1-15.

Dancer, L.S., & Hans, S.L. (Eds.). (1990). Facet Theory [Special Issue]. Applied

Psychologyv, 39.

Fattah, E.A. (1991). Understanding criminal victimization. Scarborough, Ontario:

PrenticeHall.

Filipp. S.H. (1990). Kritische Lebensereignisse. München: Psychologie Verlags Union.

Kahn, R.L. (1970). Some propositions toward a researchable conceptualization of

stress. In J.E. McGrath (Ed.), Social and psychological factors in stress. New

York: Holt, Rinehart, & Winston.

Krohne, H.W. (1988). Coping research: Current theoretical and methodological

developments. The German Journal of Psychology, 12, 1-30.

Kruse, L. (1972). Gruppen und Gruppenzugehôrigkeit. In C.F. Graumann (Ed.), Hand-

buch der Psychologie, Bd. 7.2: Sozialpsychologie (pp. 1539-1593). Gôttingen:

Hogrefe.

Laux, L. (1983). Psychologische StreBkonzeptionen. In H. Thomae (Ed.), Enzyklopädie

der Psychologie, Bd. 1: Theorien und Formen der Motivation (pp. 453-535). Gôt-

tingen: Hogrefe.

Lazarus, R.S., & Folkman, S. (1984). Stress, appraisal, and coping. New York:

Springer.

Lerner, M.J.. & Lerner, S.C. (Eds.). (1981). The justice motive in social behavior. New

York: Plenum.

Levy, S. (1985). Lawful roles of facets in social theories. In D. Canter (Ed.), Facet the-

orv (pp. 59-96). New York: Academic Press.

— 151 —

Levy, S. (1990). The mapping sentence in cumulative theory construction: well-being as

an example. In J.J. Hox, & J. de Jong-Gierveld (Eds.), Operationalization and

research strategy (pp. 155-177). Amsterdam: Swets & Zeitlinger.

Levy, S., & Guttman, L. (1989). The conical structure of adjustive behavior. Social

Indicators Research, 21, 455-479.

Lind, E.A. & Tyler, T.R. (1988). The social psychology of procedural justice. New

York: Plenum.

Mayring, P. (1991). Die Erfassung subjektiven Wohlbefindens. In A. Abele & P. Becker

(Eds.), Wohlbefinden (pp. 51-70). Weinheim: Juventa.

Mikula, G. (1980). Introduction: Main issues in the psychological research on justice. In

G. Mikula (Ed.), Justice and social interaction (pp. 13-23). Bern: Huber.

Montada, L. (1993). Victimization by critical life events. In W. Bilsky, C. Pfeiffer, & P.

Wetzels (Eds.), Fear of crime and criminal victimization (pp. 83-98). Stuttgart:

Enke.

Sacco, V. (1993). Conceptualizing elder abuse: Implications for research and theory. In

W. Bilsky, C. Pfeiffer, & P. Wetzels (Eds.), Fear of crime and criminal victimiza-

tion (pp. 71-82). Stuttgart: Enke.

Schalock, R.L. (1990). Attempts to conceptualize and measure quality of life. In R.L.

Schalock (Ed.), Quality of life (pp. 141-148). Washington, DC: American Associa-

tion on Mental Retardation.

Schwartz, S.H., & BilSky, W. (1987). Toward a universal psychological structure of

human values. Journal of Personality and Social Psychology, 53, 550-562.

Shye, S. (Ed.). (1978). Theory construction and data analysis in the behavioral sei-

ences. San Francisco: Jossey-Bass.

Skogan, W. (1993). The various meanings of fear. In W. Bilsky, C. Pfeiffer, & P. Wetzels

(Eds.), Fear of crime and criminal victimization (pp. 131-140). Stuttgart: Enke.

Spielberger, C.D. (1972). Anxiety as an emotional state. In C.D. Spielberger (Ed.), Anx-

iety: Current trends in theory and research (Vol. 1, pp. 3-19). New York: Academic

Press.

Strack, F., Argyle, M., & Schwarz, N. (Eds.). (1991). Subjective well-being. Oxford:

Pergamon Press.

Straus, M.A., & Gelles, R.J. (1989). How violent are American families? Estimates

from the National Family Violence Resurvey and other studies. In M.A. Straus &

R.J. Gelles (Eds.), Physical violence in American families (pp. 95-112). New

Brunswick: Transaction Publishers.

Young, M.A. (1991). Survivors of crime. In D. Sank & D.!. Caplan (Eds.), To be a vic-

tim (pp. 27-42). New York: Plenum.

— 152 —

APPENDIX

Item list A9: To what extent do you feel your personal safety to be threatened by the

following events and dangers?

Nr

Item

structuples

A9A

Loss of job

...........................................»..............................

cl dl e2

A9B

Inflation and economic crisis

cl d2 e3

A9C

Uncertainty of life annuity (e.g., pension)

....e…......................

cl d2 e3

A9D

Severe 1llness

c2 dl el

A9E

War

—ouveuneccconnecancconenecanec00 0000000

.cc 000n ue

c4 d2 e4

A9F

Crime

…........................................................................

c4 d3 e4

A9G

Natural disaster

s.…rcenccenn.en.ceeccencaceun..cn0eu0.00000 021000220002 0.0020cc00eu00

c4 d2 e8

A9H

Critical state of public health service

seccucecnscucnce00au00. 08020s 00000000

c2 d2 e4

A9J

Separation or loss of someone close

"c…..conncccnncen0u 000000000000

c3 dl e4

A9K

Environmental damage

o…cececennencnnce00n.e.00n00. 2200.00.00c s0c.eseu0eu uuu

c4 d2 e8

A9L

To become dependent on someone …

"o..c.............

c3 d3 e4

A9M

Accident

.ccvoccnn u... .ne.—..nnenn..00..ececcttu.0 000000020000 000 02.00.20 000006

c2 d3 e8

A9P

Loss of apartment

.ecvontsecncnnucen c.cc enncoecceucenccenuocucautan s0000.00.00 8000000

cl dl e6

A9R

Chance

orrencenss.00.c.0. u 2.ccecnancn..cennececcncacucnecccone u200000000000 0.00 00000

c4 d3 e8

A9S

socvovnccscunancancencenc0.00.—02 0—c neccecan00seu0uu00

c3 dl e4

Family fights and anger

cl = material

d! = primary

el = health

c2 = physical

d2 = secondary

e2 = work

c3 = psychological

d3 = unspecified

e3 = economy

c4 = unspecified

e4 = social

e6 = residence

e8 = unspecified

RESUME

Au printemps 1992, l'institut de recherches criminologiques de Basse-

Saxe (KFN) a été chargé de mener sur un échantillon représentatif de la popu-

lation de République fédérale d'Allemagne une enquête de victimisation intitu-

lée ‘“Sentiments de sécurité personnelle, peur du crime et de la violence,

victimisation des personnes âgées”. Afin de traduire cet intitulé en questions

de recherches pertinentes, les auteurs ont fait appel à des concepts et des sup-

ports des différents domaines de recherche, notamment la victimisation crimi-

nelle, le bien-être, les comportements d'ajustement, le stress et sa gestion, les

événements vitaux critiques, et la justice. La première partie de l'article sché-

— 153 —

matise certaines de connexions trouvées entre ces domaines de recherche. La

seconde résume les premiers résultats de la recherche, qui concernent l'analyse

structurale des événements perçus comme des menaces pour les sentiments de

sécurité personnelle. La connaissance de la structure des événements mena-

çants est une condition préalable pour situer les victimisations criminelles par

rapport aux autres formes de victimisation.

SUMMARY

In spring 1992 the Criminological Research Institute of Lower Saxony

(KFN) conducted a nationwide representative victim survey, entitled “Feelings

of Personal Safety, Fear of Crime and Violence, Victimization of the Elderly”.

When trying to unfold and conceptually rephrase the research questions

implied in this title, the authors drew on concepts and findings from different

research domains, e.g., criminal victimization, well-being, adjustive behavior,

stress and coping, critical life events and justice. The first part of this paper

sketches out some of the connections found between these domains of

research. The second part summarizes first findings from the research. These

findings relate to a structural analysis of events that are perceived to threaten

feelings of personal safety. Knowing the structure of threatening events 1s a

precondition for localizing criminal victimization relative to other forms of

victimization.

RESUMEN

Durante la primavera de 1992, el instituto de investigaciones criminol6g1-

cas de Basse-Saxe (KFN) fue encargado de realizar una encuesta de criminal1-

ZaciOn a partir de un muestreo representativo de la poblaciôn de la Repüblica

Federal de Alemania. El estudio Ilevaba par titulo : “Sentimiento de seguridad

personal, miedo del crimen y de la violencia, victimizaciôn de las personas de

edad”. Con el fin de traducir este titulo en preguntas de investigaciôn pertinen-

tes, los autores recurrieron a los conceptos y à los aportes de diferentes ambi-

tos de investigaciôn, particularmente la victimizaciôn criminal, el bienestar,

los comportamientos adaptativos, el “stress” y su gestién, los acontecimientos

vitales criticos y la justicia. La primera parte del artfculo esquematiza ciertas

conexiones observadas entre esos campos de investigaciôn; la segunda,

resume los primeros resultados de la investigaciOn, relativos al anâlisis estruc-

tural de los acontecimientos percibidos como amenazas para los sentimientos

de seguridad personal. El conocimiento de la estructura de los acontecimientos

amenazantes es una condiciôn prealable para situar las victimizaciones crimi-

nales con respecto a las otras formas de victimizaciôn.

— 154 —

Achevé d'imprimer

sur les presses de l’imprimerie Clarté s.a.,

à B-4040 Herstal (tél. 041/64.06.03)

le 25 octobre 1994.