Lecture 10: Critical Theories of Crime

The classical, biological and sociological theories of crime that we have considered in previous weeks of this course have one common element despite all their diversity: the assumption of consensus that some behavior called crime exists, is harmful and is worthy of being countered. In contrast, critical theories of crime question the assumption that we fight crimes as an impartial way of best countering and controlling harmful behavior. Critical theorists suggest that the acts we identify as crimes and the people we pursue as criminals are targeted not simply because of the magnitude of the harms they inflict, but more centrally because they are a threat to those who hold power. For critical theorists, the definition of certain harmful acts as criminal and other harmful acts as noncriminal are a way of reinforcing a system in which some people hold advantage and other people are held down.

This week’s lecture assumes that you have read Chapter 8 in Frank Hagan’s Introduction to Criminology. Our lecture subjects this week are:

Labeling Theory: Some Evidence

An unfair rap against labeling theory (the basics of which you should review in Chapter 8 of our text) can be that it destroys the idea of crime as morally bad by suggesting “society is to blame.” Such a claim subtly, but importantly, misses the point. Contemporary labeling theory suggests that social forces may be one force among many that cause criminal behavior through clumsy intervention in young deviants’ lives. This is not the same as saying that those young deviants are not then morally responsible for their subsequent criminal behaviors. Cause is not the same as blame.

If you read research in contemporary labeling theory, you’ll find that they are altogether uninterested in the question of intrinsic goodness or badness of people who commit crimes, perhaps because deciding whether people are “good” or “bad” does nothing practical to stop “bad” behavior. Labeling researchers ask a practical question: if we want to reduce criminal behavior by people, what strategies work and what strategies do not work? Does proclaiming a deviant to be a criminal reduce future criminal behavior or promote it?

What is the Effect of a Criminal Label? Shaming Behavior Inflicted Upon a Central Figure in RedTo answer that very practical question, contemporary researchers examine sentencing practices and determine, controlling for other factors, whether convicting offenders of felonies leads to a lower or higher recidivism than “diverting” them to a program which treats them but avoids imposing the label of a “convict” or “felon.” A quick review of results:

  • Bernburg and Krohn (2003) followed a randomly-sampled panel of approximately five hundred young people in Rochester, New York. Controlling for the extent of their delinquent behavior, Bernburg and Krohn ask whether getting arrested and processed through the criminal justice system, regardless of the extent of their delinquent behavior, led to greater criminality at a later age. Bernburg and Krohn’s research concludes that the answer is “yes,” and that, more than this, those delinquents who were arrested were also less likely to succeed in completing education and maintaining employment.
  • Chiricos et al (2007) examine nearly a hundred thousand criminal cases in Florida during a three-year period in which a judge had the authority to either impose or refrain from imposing the legal status of “convicted felon” upon a person convicted of a crime. The researchers “controlled” for characteristics of the criminal and the crime, which means that the effect they observed of a “felon” label was not related to the observed characteristics of the criminal or the crime. Controlling for these characteristics, those who had the “convicted felon” label imposed upon them were 17 percent more likely to commit a new crime within 2 years than those who had the “convicted felon” withheld. Chiricos et al (2007: 571) conclude that “minimizing harm at the individual level has consequences for reducing harm in the broader community.”
  • Fagan et al (2007) examined approximately twenty-four hundred 15-16 year-olds charged with felony robbery, assault or burglary in New Jersey and New York. They found that, controlling for characteristics of the criminal and the crime, those who were processed in adult criminal court were rearrested more quickly and more often for a variety of crimes than those who were diverted to juvenile court.
  • Kroska et al (2016) compare young people without “adjudications” (official judgments) of juvenile delinquency to those with juvenile delinquency adjudications.  Consistent with labeling theory, they find that those who have been adjudicated “delinquent” are more likely to evaluate themselves more harshly but to judge that they have greater power — a combination that the authors note can promote further delinquent acting out.
  • Lopes et al (2012) update the Bernburg and Krohn Rochester study of the panel of youth and measure their activities over time, they can determine whether delinquency goes up or down over time after arrest. Controlling for general criminal proclivity, they find that “adolescents experiencing police contact or arrest have higher odds of arrest in young adulthood” (Lopes et al 2012: 473), are more likely to be unemployed, are more likely to be dependent on welfare, are more likely to be drug users, and are more likely to be without a high school diploma.
  • David Myers (2003) examined approximately five hundred young violent offenders who in Pennsylvania could be kept in juvenile court with protection from “felon” status or sent to adult court with “felon” status imposed. Controlling for characteristics of the criminal and the crime, the group sent to adult court were 50% more likely to commit a crime again.
  • Restivo and Lanier (2013) draw on the more than 600 participants in the Children at Risk panel study, children living in five different American cities. They find that, controlling for their actual behavior, children who are processed by the criminal justice system for juvenile delinquency are more likely to engage in future juvenile delinquency than similar children who are not processed by the criminal justice system.

Contrary to the claim that labeling theory is dead or at least moribund, a number of studies over the past decade appear to show that labeling a person engaged in deviant behavior as “criminal” actually increases the likelihood of future criminal activity. If the question is whether we are morally interested in punishing people who commit crimes, then labeling theory may not have much to tell us, because we may choose to punish for moral reasons even if that tends to promote future criminality. If we set the question of morality aside, however, and are practically interested in reducing future criminal activity, then avoiding an imposition of a criminal label in appropriate cases appears to be a supportable strategy.

The Mark of a Criminal Record
Since the original formulations of labeling theory by social scientists such as Howard Becker (1963) and Edwin Lemert (1967), an important aspect of labeling theory has been the reaction of others surrounding a person who has been labeled. A consistent finding in the Rochester, NY panel study over the years has been that youths who are processed through the criminal justice system are less likely to find steady employment. Why is this?

To uncover the relationship between a criminal record and employment, sociologist Devah Pager of Northwestern University (Pager 2003) set up a clever natural experiment called an audit study. In this study, auditors presented their applications to a total of 350 employers in the Milwaukee, Wisconsin metropolitan area. Those auditors came in pairs who were trained to use the same words, to dress using the same clothes, and who used employment applications listing the same quality of references, credentials and other qualifications. Within the pairs, the race of applicants was also the same (with one white pair and one black pair). The only difference in the pairs was that one applicant was assigned a fictitious criminal record, while the other applicant was not.

The purpose of the experiment was to see how often applicants with and without criminal records (otherwise entirely the same) received a positive response — usually a “callback,” a phone call indicating that the would-be employer would like to bring in the candidate for a full interview. Pager found that white testers who said they had no criminal record were 17% more likely to receive a callback than white testers who said they did have a criminal record. Black testers who said they had no criminal record were 9% more likely to receive a callback than black testers who said they did have a criminal record (Pager 2003: 958 ). This indicates a serious disadvantage to those who wear the label of a criminal.

(By the way, in case you’re curious, white testers with a criminal record received callbacks 3% more often than black testers without a criminal record. Why do so many black Americans report being unemployed? According to the result of Pager’s experiment, part of the answer is racial discrimination.)

In the following news segment, Steven Pope of KIDK News interviews a young woman who, having received a felony DUI conviction, is trying without success to find someone willing to employ her:

At the end of the above segment, KIDK News refers to a snap poll they ran: “Do you think employers should have the right to disqualify candidates if they have a felony?” Think about that question. What would your response be? Given what you have learned about patterns in the commission of crime, what are an employer’s rights? What are their responsibilities? I encourage you to share your thoughts in the comments section at the end of this lecture.

Crime and Power

In its discussion of the conflict perspective of society and the conflict perspective in criminology in your reading this week, your textbook repeatedly uses the word “power,” and even moves on to discuss power-control theory in the context of feminist criminology, but does not define the word “power” itself. Yet the whole arena of critical criminology revolves around this subject. What is power? In his work The Theory of Social and Economic Organization Max Weber’s ideas of class, status and party distinctions are grounded in the definition of power as “the probability that one actor in a social relationship will be in a position to carry out his will despite resistance” (Weber 1947). In other words, a person’s or group’s power is the ability to obtain outcomes that other people or groups oppose.

In his classic 1970 book The Social Reality of Crime, Richard Quinney applied Weber’s idea of power to the creation of crime. Rather than a reflection of consensus, Quinney asserted that a society’s definition of crime was the outcome of contention, competition and conflict between more powerful and less powerful groups. Quinney named six propositions describing how power struggles lead to the definition of crime (although the last is really a summation). To paraphrase (Quinney 1970):

Proposition 1. Crime is a legal definition, made by those with power, and describing certain varieties of human behavior.

Proposition 2. The acts defined as crime by the powerful are acts that threaten the interests of the powerful.

Proposition 3. The definitions of crime are applied by those with the power to apply them: those classes of people who are in charge of law and law enforcement.

Proposition 4. People whose manner of acting has been defined by the powerful as criminal will tend to continue acting in that manner. They will be defined as criminals by others and eventually themselves.

Proposition 5. The ideas we have about the acts defined as crime are shaped by those with the power to widely spread those ideas, such as political leaders and owners of mass media.

Proposition 6. Therefore, “the social reality of crime” results from those who win in the struggle to:
=> Define criminal acts in relation to their interests
=> Apply and enforce those definitions in law
=> Shape behavior patterns of people in relation to those definitions
=> Promote ways of thinking that reinforce these

To Quinney, crime is a political product. In the field of political sociology, G. William Domhoff (1998) names four ways to test who has the power advantage in a political debate. Domhoff suggests we look for the answers to these four questions:

1. Who benefits? Who stands to win if an act is criminalized? Who stands to lose?

2. Who wins? Whose ideas are accepted? Whose interests prevail?

3. Who sits? Who occupies the seats of power? In this claim, Domhoff is making an important assumption: that (using the words of classic political scientist Hanna Pitkin 1967) “descriptive representation” leads to “substantive representation.” Women are descriptively represented in Congress, for instance, if there are many members of Congress who are women. Support for women’s interests in the Congress, on the other hand, is substantive representation — and both men and women in the Congress could act in a way that supports women’s interests. Domhoff argues that people are likely to support the interests of the groups and classes to which they individually belong.

4. Who shines? Who has the reputation of being powerful?

To understand crime as a product of conflict, we should identify different classes or groups with competing interests, watch the process by which they contest policies that set some behaviors as crime and other behaviors as non-criminal, note who wins in these contests, think about how criminalization or decriminalization of a policy acts to control or free a set of people, and pay attention to the ideas powerful groups spread to justify their actions.

Poverty and Crime

As Karl Marx described a century and a half ago (see Chapter 8), two classes of people who have opposing interests and who struggle to control the shape of society are those who hold wealth and those who have no wealth. It may not literally be a crime to be poor, but it is fair to say that the criminal are more likely to be poor. The greater the poverty in a society, the higher the prevalence of crime in a society (see Pridemore 2011 for example). It may be tempting to associate that higher level of criminality to individual failings of poor people, but social scientists who study crime from a critical perspective point out ways in which the criminal justice system makes it easier for poor people to be designated criminals.

  • In their comparison of self-report data by youths in suburban and rural America, Greene and Forster (2004) find that young people living in cities fight, engage in petty theft, use drugs and drink alcohol at about the same amount as students who live in wealthier suburbs. This finding replicates classic research (Nye et al 1958). Yet the arrest for these sorts of offenses is higher in urban areas than in the suburbs. Why? Repeated research indicates that poor neighborhoods in urban centers are more likely to be heavily patrolled with residents put under more exacting surveillance — even extending to “stop-and-frisk” searches without probable cause (Fagan and Davies 2000; Fagan et al 2012; Sampson 1986; Tonry 1994). When young people engage in deviant behavior in suburban areas, they get away with it. When young people engage in deviant behavior in urban areas, especially in poor neighborhoods, they get arrested.
  • Robert Sampson (1986), in a study of youth in Seattle, finds that young people who are individually poor and who live in poor neighborhoods are more likely to be arrested, and then more likely to be charged and sent to criminal court, than their peers from wealthier homes and neighborhoods, even when those peers report engaging in the same level of delinquency. This is another point of discrimination against the poor.
  • As the American Civil Liberties Union reports (2011), poor people who are brought into the criminal justice system are more likely to have more punitive criminal findings against them, often because they cannot afford to pay the fees necessary to be successfully processed through the criminal system. Pastor Marietta Conner, for instance, went to traffic court for a minor driving infraction. Because she didn’t have enough cash with her that day to pay her $140 fine and didn’t have alternative means of payment, she was criminally processed and placed on probation. The ACLU also reports on the case of Edwina Noland:"In 2010, this struggling Michigander, laid off from her job, homeless and working part time, was sent to jail for 30 days -- because she couldn't pay the $104 fee she was charged for her 16-year-old son's lodging at government expense in juvenile detention. Released for one day in order to work, Nowlin picked up her $179 paycheck, believing she could pay off her debt and be set free. Imagine her surprise when the sheriff forced her to sign over her check to cover a new $120 assessment for her own jailhouse room and board, plus $22 for her drug test (which came back negative), and also a jail booking fee. Caught in a vicious cycle, Nowlin was sent back to jail because she still couldn't pay the original $104 fee -- and meanwhile new charges kept piking up."

Gender and Crime

The following is a quote taken from an magazine written for people working with families by a resident of a country where it is legally impossible for a man to be said to rape his wife. Writing with the central question, “Does Marital Rape Exist?,” the author of that article notes that:

"The concept of 'marital rape' is one which does not exist legally. By legal definition, a woman cannot be raped by her husband, since the 'crime' or rape is ordinarily and legally defined as forcing sexual intercourse on someome other than the wife of the person accused."

The country is the United States, the year is 1977, and author Richard Gelles is writing for the journal Family Communicator at a time when the only state to specifically outlaw rape of a woman by her husband had been South Dakota, just two years before (Gelles 1977). In the 16 years between 1977 and 1993, a great change occurred, with every state in the country criminalizing rape between spouses (Lockwood 1993). At the beginning of this period, a sharp battle (and still ongoing culture war regarding gender and the criminalization of sexual violence was launched with declarations like the following by Gelles (1977):

"The major question which must be addressed at the outset is, can we or should we investigate a phenomenon which, by legal definition, does not even exist?... We believe that we should. The legal prescriptions which imply that a wife is the 'property' of her husband (Griffin 1971) and which give the husband the permanent right to sexual relations once the wife says 'I do' (New York Radical Feminists 1975) are a reflection of an ideology, not a portrait of reality. The law is a reflection of what behavior ought to be, not what behavior actually is. The fact that the criminal justice system is largely populated by males partially explains the fact that legal statuses reflect a 'male dominant' view of family behavior."

A decade later, only 21 years ago, the Maine State Legislature acted to shift the act of rape within marriage from a legal to a criminal act. The decision was not unanimous. A trip to the archives of the library of the Maine State Legislature in Augusta (Maine State Legislature 1985) reveals the following exchange, in which various interests are articulated for men and women and a rhetorical struggle ensues that Quillen would recognize:

"The Chair laid before the House the fifth tabled and today assigned matter:

SENATE DIVIDED REPORT
– Majority (12) “Ought to Pass” as amended by Committee Amendment “A” (S-83)
– Minority (1) “Ought Not to Pass”
– Committee on Judiciary on Bill “An Act to Amend the Statutes on Sex Offenses” (S.P. 283) (L.D. 772)

– In Senate, Majority “Ought to Pass” as amended Report read and accepted and the Bill Passed to be Engrossed as amended by Committee Amendment “A” (S-83)

TABLED – May 13, 1985 by Representative PARADIS of Augusta.

PENDING – Motion of same Representative to accept the Majority “Ought to Pass” as amended Report.

The SPEAKER: The Chair recognizes the Representative from Westbrook Representative Carrier.

Representative CARRIER [J. Robert Carrier of Westbrook]: Mr. Speaker, Members of the House: I can’t believe this. I really didn’t want to talk about this bill this afternoon. This bill is a juicy bill and I think in case you were misled by the title — the title really involves marital rape, that is the way it should be worded so people know what they are talking about.

I am the one who signed the “Ought Not to Pass” Report and I would like to say a few words about it. I signed the “Ought Not to Pass Report,” not because I am an approver of a rape or physical abuse or any part of that area. The reason that I am against this bill is because I think it is a bad bill.

We have to get into the marital part of it and I will use restraint in my wording. This is more appropriate for a barroom discussion.

I feel that marital rape should not be in here. It was never in the law before. It looks very innocent to scratch something out of the present laws and make marital rape a crime. I feel in the course of people living together and having arguments that this is not the procedure to be used. If someone does bring charges against their husband or wife and they use the charge of marital rape, I don’t feel that this is right. Under the present law, you have plenty of room to use the rape situation as an affirmative defense.

I wonder what this will do for the man. He is going to be the defendant in all cases and I wonder how many cases we have at the present. I wonder how many cases have been involved – is the woman going to rape a man?

There are a lot of questions here that cannot be asked on the floor of this House. For the learned people who went through law school and others who have read the law, you really can’t explain what is involved in this bill.

If you are talking about people who are separated, that is a different thing. I do believe that a bill of this magnitude — if married people living together have an argument, this will not help. I think things could be resolved without this hammer on top of your head.

I think if this bill were to pass, it should be amended to say “separated”. Things are different today. People are getting divorced today at a much faster rate. This will not help with reconciliation. This situation has to be proven but this will help those that want to break their marital vows. I don’t agree with the bill.

I ask you, who has been raped and who has complained as far as marital stuff is concerned? The code was changed a while back, I wasn’t part of it, where the fornication statute was removed — they opened up everything for everybody to do and yet, you turn around and make them criminals. I don’t believe that this is a good bill and I move for the indefinite postponement of this bill and all accompanying papers.

The SPEAKER: The Chair recognizes the Representative from South Portland, Representative Kane.

Representative KANE [Edward J. Kane of South Portland]: Mr. Speaker, Ladies and Gentlemen of the House: My friend and colleague from Westbrook, Representative Carrier, would suggest that this is an innocent bill. This bill has nothing to do with innocence at all. What it has to do with is guilt. To my mind, there is no crime at all comparable to rape. There is no criminal act, which is such a direct and destructive attack on a person’s physical and psychological integrity, on a person’s sense of her own self-worth and, if you will, on a person’s soul.

The experts say, and I believe it, that the motive behind a rape is not so much the gratification of a sexual urge as it is for the degradation and the humiliation and the subjugation of the victim of the rape.

Under the current law in this state, there exists a group of women who can be repeatedly subjected to this sort of attack in their own homes and whom, because at one time they trusted the attacker enough to marry him, will not be protected by the law. It is a complete part of the prosecution. I think it is just a historical accident that this bill hasn’t come up in the past. I think people just didn’t realize that this was still the way our law is, but it is, and I urge you to oppose the current motion and bring us into the 20th Century.

The SPEAKER: The Chair recognizes the Representative from Cumberland, Representative Dillenback.

Representative DILLENBACK [Robert G. Dillenback of Cumberland]: Mr. Speaker, Ladies and Gentlemen of the House: I am not going to make a great speech on this bill. It just seems to me that the ultimate recourse to this situation is divorce. If the wife is raped, she certainly could take her husband to court and then there will be a divorce anyway. I think the ultimate recourse to this is divorce.

The SPEAKER: The Chair recognizes the Representative from Canton, Representative McCollister.

Representative McCOLLISTER [Richard E. McCollister of Canton]: Mr. Speaker, I would like to pose a question through the Chair.

Just exactly what do you describe as marital rape?

The SPEAKER: The Representative from Canton, Representative McCollister, has posed a question through the Chair to anyone who may respond if they so desire.

The Chair recognizes the Representative from Portland, Representative Baker.

Representative BAKER [Harlan R. Baker of Portland]: Mr. Speaker, Men and Women of the House: I will not attempt to answer this particular question; however, I will answer it in another way.

We have laws right now that if you assault or harm your wife, that is on the books. Rape is just as much an assault on violence as beating someone with your fists. I don’t see what the difference is. If we give women the recourse in courts to protect themselves from assault and battery on their husbands, there is no reason why we can’t give women the same recourse if they are raped. It is pure and simple.

The SPEAKER: The Chair recognizes the Representative from Auburn, Representative Michael.

Representative MICHAEL [John Michael of Auburn]: Mr. Speaker, Ladies and Gentlemen of the House: I think it is simplistic to think that this is pure and simple. I am concerned about where the mentality of this bill comes from. I certainly sympathize with the notion and the concept that we are opposed to violence in society. I think we are all unanimous in that support but I question the value of this bill in reducing violence in society, especially in reducing passionate violence. I think the gentleman from Cumberland was right on when he suggested that the remedy to this situation would be divorce or I would say leaving the relationship. There is no excuse for the condition that a relationship must be in for it to be in the posture to be dealing with marital rape to continue in that condition.

I have had no answer to my question of: why do these women stay in the relationship? If the condition of the relationship is such that it doesn’t work and they are living with men who are violent or threaten them or whatever the situation is, I have received no suitable answer to that question and I don’t think there is a suitable answer. So, the danger in this bill, I think, is that it sets it up to have an ongoing condition in the relationship where the couple is not getting along and if you take something and let it sit long enough, eventually, keeping that probability alive long enough, will eventually produce a result so if you stay in a relationship that doesn’t work and you argue and you fight all the time, eventually there will be trouble. Common sense, simplistic perhaps.

I say what is lacking from this bill, and this is my concern, and I say what is lacking, by the way, from keeping the relationship working as well, is any sense of mutual responsibility. I have heard no notion from the supporters of this bill of the women being involved in marital rape of having anything to do at all with it, being at all responsible in the matter, and I say that that is essentially not so and it is that absence of that notion of responsibility that concerns me so much. I say you are just setting it up to give the woman a hammer in a relationship so that when it doesn’t work for a long time and finally something happens, because something finally will happen if you stick around and keep that probability alive long enough, that the guy gets the short end of it. I don’t think it works and I think the gentleman from Westbrook was absolutely right when he said that this would contribute to the — I will say it in my words, “to the decay of the family, to the decay of marriages because it gives another weapon into the arsenal that is already there so the couples could fight rather than get along.”

I would like to put the question out — “why married?” What does that mean? That declaration of marriage? What does that mean to a person, what does that mean to society? It must seem something different than the casual relationships we have with one another on the street. I have no sympathy for rape in general but I do say that there is a different context that exists in the context of a marriage. Before this House passes this into Jaw, I think you should take a very serious look at what you are doing, what kind of a declaration you are making. We are, for one thing, declaring that that special context of marriage, that special declaration doesn’t mean necessarily partnership and cooperation. I think it means a little bit more than that so I caution the House and ask us to look deeply into this issue before we move forward. No one wants violence and, by the way, as the gentleman from South Portland said, there are already laws on the books which prohibit battering your wife so this is not an anti-violence bill; this is strictly a sexual bill. This is very, very complicated, it is not simple, we should not rush into this just because it is chic and we button into the cliche of “let’s protect these women from the bad guys.” It is not as simple as that.

The SPEAKER: The Chair recognizes the Representative from Durham, Representative Hayden.

Representative HAYDEN [Martin S. Hayden of Durham]: Mr. Speaker, Men and Women of the House: Very briefly, I think it might be of use to every person in this House, whether they are for or against this bill, to hear from a member of the committee what the elements are of this offense, rape. We are not talking about marriage here; we are not talking about encounter groups; we are not talking about people getting together, we are talking about a person, be it a married person or an unmarried person, who is subjected to a crime that, on its very face, is the essence of being serious, the essence of being threatening and I think rather than trying to say from memory what the terms of that offense are, perhaps someone from the committee could read the very stark things that have to be proven for there to be rape. I think once those are heard, it is very hard not to go along with the Majority Report.

I would request, Mr. Speaker, that someone from the committee read the elements of the offense.

The SPEAKER: The Representative from Durham, Representative Hayden, has posed a question through the Chair to anyone who may respond if they so desire.

The Chair recognizes the Representative from Brunswick, Representative Priest.

Representative PRIEST [Charles R. Priest of Brunswick]: Mr. Speaker, Men and Women of the House: 17 A, Section 252, defines rape as we are using it here as follows: “a person is guilty of rape if he engages in sexual intercourse with any person (at this point, not a spouse), and the person submits as a result of compulsion as to find in Section 251, Subsection 1, Paragraph E. Compulsion means physical force, a threat of physical force or a combination thereof, which makes a person unable to physically repel the actor; or which produces in that person a reasonable fear that death, serious bodily injury or kidnapping might be eminently inflicted upon that person or upon another human being.”

The SPEAKER: The Chair recognizes the Representative from Presque Isle, Representative MacBride.

Representative MacBRIDE [Mary H. MacBride of Presque Isle]: Mr. Speaker, Ladies and Gentlemen of the House: In addition to this being a legal issue, it is also a fairness issue. If you had attended the hearing, you would havp heard the victims of rape testify and you would have been horrified that women could so misteated.

It is a 12 to 1 committee report and I hope you will support the “Ought to Pass” Report.

The SPEAKER: The Chair recognizes the Representative from Westbrook, Representative Carrier.

Representative CARRIER: Mr. Speaker, Members of the House: The elements that were just read are right because they came out of the statutes but the fact is that the main element of rape is not in there. It is but it is not – the word “consent” – in order to get raped, you have to have a lack of consent. Okay, so how could we not say that somebody that does not get along with his spouse, a real bad situation, and chooses to stay there, whatever the conditions are, how could you say implied consent is not there? They stay there and they know that they are going to get something done to them and how could you not put implied consent to it?

I suggest to you, ladies and gentlemen, that for your own sake and your own personal protection, that this is a bad bill and we should not pass it.

The SPEAKER: The Chair recognizes the Representative from Windham, Representative Cooper.

Representative COOPER [Gary C. Cooper of Windham]: Mr. Speaker, Ladies and Gentlemen of the House: I guess under the criteria that we just heard, an incest victim would fall into that same category. They seem to stay there, even though they are a victim. It appears to me from what I have heard that if a lady gets raped by her husband, even if it is just once, the recourse should be divorce, not a criminal action against the husband, that he should be unpunished, that there simply should be a divorce.

I think there are great many things involved when you are in a family situation. In fact, over a period of time, may prohibit a woman from getting out of the marriage situation. But if, in fact, it only happens once, then it seems to me she should have the right to go to court and get action taken. Divorce is fine but it fails in two ways: first, people who commit criminal acts should be punished and second, we need more of a deterrent against this anti-social kind of behavior. I think there are safety valves in place. A woman simply isn’t going to be able to cry rape and get action taken. There will be a police investigation, prosecutors discretion is going to be involved, jury deliberation will be involved and if in fact there is no rape or is done by consent, then I don’t think anybody is going to be unduly harmed. It is going to be a very difficult situation for any woman to go through that kind of a trial. They are not going to go through it unless, in fact, there was something behind the case.

Does Domhoff’s assertion, that descriptive representation leads to substantive representation, bear out in this circumstance? The following is a graph of votes on that 1985 bill to criminalize rape within marriages:

Vote on L.D. 772, a 1985 bill before the Maine State Legislature to criminalize rape within marriage. A chart according to gender, described in the text below.

The percentage of women legislators voting to pass the bill (known as Legislative Document or “LD” 772) is higher than the percentage of men legislators voting to pass the bill. The differences are not stark, however, and a minority of women in the Maine House sided with a minority of their male colleagues to oppose the criminalization of rape in marriage. In the case of this bill, and in the case of many similar bills, factors other than gender are more important than gender itself in predicting how political actors work together to enact gender-meaningful policies (Cook 2011).

Race and Crime

As in the case of economic class, youths of different races appear to self-report similar levels of delinquent activity (Lauritsen 2005). Yet arrest rates for black youth have been markedly higher than for white youth in the past generation, bringing them in greater numbers into the criminal justice system for processing as labeled criminals (even in 2016, 2012 is the latest year for which reports are available; as this list of juvenile arrest publications makes clear):

Arrests per 100,000 juveniles ages 10-17, white and black juvenile trends separated.

 

What are some of the factors accounting for the difference? Part of the issue is that, because of the relationship between poverty and race in America, black youth are more vulnerable to the disproportionate police pressure placed on poor communities and neighborhoods (see above). Another part of the issue is that in the United States black people have been found experimentally to be treated with greater suspicion and surveillance as they proceed through daily activities, such as shopping (Schreer et al 2009). In addition, repeated studies have shown that black Americans are stopped at a higher rate by police than white Americans — and even though the percent of black Americans stopped by police who are arrested on criminal charges is lower than the percent of white Americans stopped by police, the sheer number of black Americans stopped by the police is so large that black Americans are processed through the criminal justice system in larger numbers (Fagan and Davies 2000; Fagan et al 2012; Harris 1999; Kochel et al 2011; Novak and Chamlin 2008; Withrow 2006). After arrest, research by criminologist Cassia Spohn (1994) demonstrates that black defendants are at an especially harsh disadvantage in sentencing when the victims of their alleged crimes are white.

Continuing on this point, last year The New York Times published the results of its own investigation of police arrest statistics.  In the “four states that track the results of consent searches” of vehicles.  In each state, “officers were more likely to conduct them when the driver was black, even though they consistently found drugs, guns or other contraband more often if the driver was white” (LaFraniere and Lehren 2015). This result appears to replicate and corroborate the studies above that document a tendency for officers to stop black Americans disproportionately.

Who is Searched (Black Drivers, disproportionately) vs. Who Has Contraband (White Drivers, disproportionately). Findings from the New York Times.

This is yet another example of what racial discrimination in the criminal justice system looks like.

Finally, before any individuals are detained or arrests are made or sentences handed down, decisions about what is and is not criminal are made in the racialized arena of drugs. In the 1980s, working from alarmist but incorrect information, legislators followed a moral panic regarding crack cocaine, imposing harsh mandatory sentences for crack possession that were one hundred times harsher than those for powder cocaine possession. Crack cocaine is a drug disproportionately used in black communities; powder cocaine is more heavily used in white communities (Hartley and Miller 2010). Despite early hype to the contrary, research indicates that the two forms of cocaine are no different in their addictiveness or harm to children (Reinarman and Levine 1997).

Activity for the Week

Click the “Activities” link on our course Blackboard page and take “Activity 8: Quiz on Chapter 8.” Because this is an activity designed to help you learn, you will NOT be graded based on how well you do, but simply based on whether you complete the quiz. If you complete the quiz by the due date of November 5, you will receive 100 points. If you complete the quiz by November 6, you will receive 90 points. If you complete the quiz after November 12, you will receive 50 points. Best of luck — I hope you find the quiz a useful process!

References

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