Serassis / Kania / Albrecht (Eds.) Images of Crime

Home , Angeli (cartoonist), Billy Hayes (writer), Bob Gunton, Bryan Forbes, Shawshank State Prison, The Mayor of Hell

Serassis / Kania / Albrecht (Eds.)

Images of Crime III Kriminologische Forschungsberichte Herausgegeben von Hans-Jörg Albrecht und Günther Kaiser

Band K 144 Images of Crime III Representations of Crime and the Criminal

Telemach Serassis / Harald Kania /

Hans-Jörg Albrecht (Eds.)

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DOI https://doi.org/10.30709/978-3-86113-096-6

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Gedruckt auf alterungsbeständigem (säurefreiem) Papier entsprechend ISO 9706 Preface

Robert Reiner

When Ioriginally agreed to write thePrefacefor this third volumeofthe Images of Crime series on ‘Representations of Crimeand the Criminal’, it was my intention to praise avaluable andflourishinginitiative. Yet it seems, sadly, that my role is theob- verse of Shakespeare’s Mark Antony. Icametopraise the series,not to bury it – but unfortunately my role seemstohave become that of valedictorian.The series was valuable and vitallyimportant becauseitembodied aconception of criminologythat has beensomethingofanendangeredspecies in the last three decades of neo-liberal triumphalism, and remains imperilleddespite the weakeningofmarketfundament- alism sincecreditcrunchedlastyear. The editors of the firstvolume, published in the first yearofthe millennium,declared itssubject matter to be the examination of ‘representations of crimeand the criminal in science, the arts and themedia’,anagendathatthe Preface to thatvolume described as ‘rather understudied’. This is in my view less true now thanitwas then, with the proliferation of studies of crime and the media, and thebuzz around the cul- turalcriminology perspective.But what Ithink was even more valuable than the idea of analysing images of crime, was the series’commitmenttoahighly eclectic approach, ‘interdisciplinary as well as transnational’ to quotethe originalPreface again, and strongly committed to acritical perspective. Thevolumes themselves were exciting and stimulating in large partbecause they broughttogetherscholarsfromawide rangeofcountries and adiversity of disciplines, including not only criminology – itself of course a‘rendezvous’ subject for many different perspectives as David Downes memorably referred to it – butalsosociolo- gy,psychology, psychoanalysis,philosophy, politics, literature, law, architecture.The topics in this third volumeare characteristic of the varietyinthe previous two books. They encompass abroad array of conceptionsofcrime, criminals, and crimecontrol strategies, from constructions of images of criminalityinthe discipline of criminology itself, through those implied in public discourse and penalpolicy, to the mass media and popular and serious literature. VI Preface

The title of the volumes, Images of Crime,ratherundersellsthe richness of what they contain.The connecting thread between the disparate topics and treatments is that they allsomehow relate to representations of crime. Yet in aloosely coupled and eclectic waytheyalsomount acollective challenge to the dominantdiscourse about crimeand control in neo-liberalism.AsIhave triedtoshowinmyrecent book Law and Order: An Honest Citizen’s Guide to Crime and Control (Polity, 2007), neo- liberalism is responsible both foraggravatedproblemsofcrimeand violence, and also forpublicand policy responsesthatthreatenhumaneand democratic values. In the media, politicaldiscourse and the prevailing social imaginary, crimeisasummation of all thatisfeared in an increasingly insecureworld,but is never questionedorana- lysed: all that matters is that politicians,policing and penal practitioners get tough on it. For all thelip-serve to notions of realismand what works,this is alargely futile, symbolic endeavour. Understanding the complexities of crime, even pledgesto‘gettough’ on thecauses,have been side-lined. So the Images of Crime series’ commitment to amulti- disciplinary and criticalexcavation of ideas of crimeremains vitally apposite, however much it is arather quixotic battle against the dominant currents of our time. It is very much to be hoped that, again reversing Mark Antony, the good it did is not inter- red withthe series,but lives after it. Ibelieve that thestrengthofthe scholarlycontri- butions in these volumes will indeedlead to theirbeing referenced and remembered as significantlandmarks in critical criminology. Table of Contents

ROBERT REINER Preface...... V

TELEMACH SERASSIS,HARALD KANIA &HANS-JÖRG ALBRECHT Introduction...... 1

NILS CHRISTIE &HEDDA GIERTSEN When SexualityLostits DiscipliningPower: Changes in Conditions for Control ...... 9

JAYNE MOONEY &JOCK YOUNG Youth,Moral Panicand LateModernity ...... 21

NIKOS PARASKEVOPOULOS Targeting Majorities:New OrientationsofPenal Control...... 27

RONNIE LIPPENS Tribal Images, Fashionable Deviance, andCulturalDistinction: NotesonCriminologicalChange...... 45

ANTHOZOE CHAIDOU Images of ViolenceinEveryday Life...... 57

KLAUS BOTT,KERSTIN REICH &HANS-JÜRGEN KERNER Images of ‘Crime’ from Kindergarten to High School: Development and DifferentiationofConceptsofCrimeand Criminals in the Early Life Course among Young People in Germany...... 69

JÖRG HUPFELD Men’sand Women’s Theories about theCauses of Crime:The Influence of Severity and Type of Offence on Intentions to Punish...... 89

MICHAEL BOCK The Selective Perception of Domestic Violence...... 105

DANIEL VYLETA From CrimeScience to Detective Fiction: The CaseofAgathaChristie ...... 119

JAN ALBER The Ideological Underpinnings of Prisonsand theirInmatesfrom Charles Dickens’s Novels to Twentieth-CenturyFilm...... 133 VIII TableofContents

PAUL MASON Hollywood’s Prison Film:TowardsaDiscursive RegimeofImprisonment.....149

MONIKA FLUDERNIK &MARTIN BRANDENSTEIN Images of Crimeand the German Justice SysteminGerman Trial Soaps ...... 165

GABRIO FORTI ‘Public Harm’inthe Media Selection of Crimes: ADiscussionofaRecent ResearchProject in Light of CesareBeccaria’sPhilosophy...... 183

AUTHORS ...... 209 Introduction

Telemach Serassis, Harald Kania &Hans-JörgAlbrecht

“We look forward to continuing the Images of Crime project – not onlydoesitraise important issues and bringtogether scholars from different countries and disciplines, but it is also apleasure working on!”

With this phraseended our introduction to the second volumeofImages of Crime.1 Unfortunately, things don’t always turn out as we wish:The scholars were present, with their ideas and contributions, the pleasurewas still there, but the times they are a-changin’.** It’s rather ironic, butinanera when critical discourse is most needed and the incentivesare multiplying, it’s becomingmoreand more ar- duoustoproduce thiskindofdiscourse.Robert Reiner concluded hisflattering review of ImagesofCrime II*** with the exhortation “Criminologists of the world unite – you have nothing to lose but your researchgrants”.Yet,itseems thatre- search grants are an important stake, and on the other hand, there is much more to be lost when you try to raise issues whichare not mainstream or even tolerable – Voltaire must be turning in his grave!**** In such an environment and under rather unfavourable circumstances, Images III appears as the swan song of avery promising and – we darebelieve – veryfertile project. Againateamofgreat colleagues – older and younger – shared our cause and embraced the endeavour. The result is acollectionofarticles, covering awide range of subjects, which contribute significantlytothe respective debate. We chose not to group the contributions – since the boundaries are not always so clear – but

______1 Hans-JörgAlbrecht, Telemach Serassis &HaraldKania (eds.), Images of CrimeII: Representations of Crimeand the Criminal in Politics, Society, theMedia and the Arts, EditionIuscrim,Freiburg, 2004. ** Bob Dylan, Columbia, 1964. *** Crime,Media, Culture,vol.1/no.2,2005, p. 225. **** Though he wasaware of the fact that “it is dangeroustoberight in matters where established men are wrong”(‘Catalogue pour la plupart des écrivains français qui ontparu dans Le Siècle de Louis XIV, pour servir àl'histoire littéraire de ce temps,’ Le Siècle de Louis XIV,1752). 2Telemach Serassis, Harald Kania &Hans-Jörg Albrecht thevolumemoves from more theoretical to research papers, covering images of crime, socialcontrol,moral panics, law and order, as well as the media, literature, television and cinema. Nils Christie and Hedda Giertsen audaciously discuss sexual mores andtheir role in social control. Examining the changing roles of menand women,aswell the status of children and adolescents,theyexamine the notion of such key issues as sexuality andsexualcrime,withrespecttosocialcontrol. They arguethat “earlier, thefield of sexualitywas useful for general forms of controloffemales within Westerncountries. With the decline in male dominance and astrengthening of female perspective, the man’s (or woman’s) use of physical or psychical force and threats of forceisseen as the dominant characteristics of the sexual offences, therebylinking them to ordinary andcriminalizedactsofviolence, threats and coercion”. They pointout that,after the‘normalisation’ of other forms of sexual conduct, social controlhas shifted its attention to certain sexualcrimes, such as paedo- philia and prostitution, thus creating new ‘monsters’ and anew field on whichso- ciety, thelaw andscience canfocus. Jayne Mooney and Jock Young offeraninsightfulapproachtomoral panics in latemodernity. Drawing from Stan Cohen’s theory (FolkDevils and Moral Panics) and Jock Young’s analysis of late modernity (TheExclusive Society), they focus on youth culture and examinethe role of societyand themassmedia (and also of the academy). They claim that there exists aspinofrepresentationwith the (oligopo- lised) major media chains as the protagonist,but also with the involvement of the agencies of control, and that we liveinanera of ‘permanent moral panic’, as opposed to Cohen’s ‘transient panic’, which involves “in particular the triptych of welfare scrounger, immigrant and drug addict frequentlyracialised and to which after 9/11 afurther refracting mirror has been added: that of terrorist”. They con- clude: ‘Herewehave the extraordinary structural change wherein asizeable section of the population have becomesocially excluded andthencastwith the stigmaof trouble, contamination and danger. […]The notion of moral panic delves to the very heartofour social order, its occurrence is potent ammunition in theproduc- tion of division, it is subtle rhetoric in the fabric of legitimation”. Nikos Paraskevopoulos writesaboutthe new type of penalcontrol, which ap- pearswithglobalisation and according to which the ‘social enemy’ can be found almost everywhere. As aresult of the evolving inequality, collective fears and vio- lenceemerge, whichinturn leadstoanew orientation of the penal control system, which now has as its target not only criminals and outsiders,but practically every member of society. According to Paraskevopoulos, this is best reflectedinboth substantiveand procedural penal laws. Typical examples of this development are, among others, the retreat of ‘securityoflaw’ as afundamentalprinciple, the con- cernmore aboutrisks and less about harm,the zero tolerancepolicy, theturnfrom substantive to procedural laws, the expansion of the fields of police and administration in comparison with criminal justice, thegrowth of surveillance systems, the Introduction3 widening of the concept of suspect. He concludes that these trendsfacilitate the expansion of the penalcontroland will, in many cases, conflict with theconstitu- tional andconventionalframework for the protection of individual rights. Ronnie Lippens attempts in his contribution to explain change in criminological thinking.Using insights from anthropologicaltheoryand actor-networktheory, criminological change is explained as that which results from the circulation, in actor-networks, of tribal images. Tribal image, then, takes centre stage in this contribution. In particularhefocuses on two features of tribal images, i.e. their hybridity and their porosity. Anthozoe Chaidou deals with violence, focusingonits prevalence in everyday life.She argues that,inspite of themethodological difficultiesinits definition, violence – in variousformsatboth the individual and collective level – hasbecome an inherent element of everyday life, to which societies are increasingly accustomed. In addition to moreobvious manifestations of violence, which can be de- tected, recorded and analysed, there also exist not so distinct forms,which should be considered even more dangerous, to the extentthat they cause harm in arather insidiousway.Acharacteristic case of the latter is state violenceinits current forms,especiallywith theuse of modern technology,which lead to seriousre- straints in the protectionofindividualrights.AccordingtoChaidou,contemporary violence should be consideredthe outcome of transformationsinsocial and power structures, rather than an individualphenomenon. Accordingly, its study needs to depart from traditional positivistic approachesand focus on the emerging socio- economicand power relations. Klaus Bott,KerstinReich and Hans-Jürgen Kerner putforward an innovative approach to perceptions of crime.According to existingresearch, individual conceptions of crimeare not congruentwith criminal law, and age is akey factor in this disparity.The intention of theirstudy is to get an impression from the base and the development of criminological knowledge of children and youth. Usually the point of departure in such studies is based on definitions of crimeprovidedbythe criminal law.Young people then decide to what extent they agree withthem.The authors did it the other wayround,trying to get afundamental understanding of crime, criminal acts and sanctions directly from the children. To this end, they posedsomecore questionstogroups of childrenofdifferentage, education and cultural background: Whatis‘crime’ in their view? How do they create their images andconceptsofcrime andcriminals?And finally,who or what has an impact on the development and the internalisationofthese concepts? Firstresults indicate aclear but simpleand mystic image of good and evil for infants. They noticed a wide consensus of the different groupsinterviewed about what serious crime means, although there is aremarkable cultural and ethnic variation. And, contrary to their presumption, children do not assume one can discriminate between ‘criminals’ and ‘non-criminals’ directly when looking at persons. 4Telemach Serassis, Harald Kania &Hans-Jörg Albrecht

JörgHupfeld examines the gender differentiation regardingattitudes toward crime, which is indicated by several empirical studies, and in particular how, and why,women and menmight hold divergentviews.His initial goalistoexplore subjective crimetheories. In spite of at least three decades of research and aconsiderable body of research, thereare stillmanyopen questions. Someofthose questions, which are discussed subsequently,refer to the dimensions of subjective theories of crime. Othersconcern theinfluence of offence type and respondent genderoncrime theories andthe intentiontopunish. The present discussion con- centratesonattributiontheory and moraltheory on the one hand, and on the perceived severity of crimeonthe otherhand. According to Hupfeld, within thistheo- reticalframework it seemspossible to understand someofthe mixed gender-related effectsthathavebeenreported up to now and to make several specific predictions. Finally, someempirical results that support the theoretical considerationsare presented and their practical relevance is discussed. Michael Bock presents an unconventional approach to family violence: In his opinion, menbecomevictimsoftheir femalepartner’saggressive behaviour to amuch larger extent than customarily assumed as well as presupposed in the practice of violence- preventing policy. This predominantimage of domestic violenceisoriginated in acul- turalpre-shaped view. Men do not perceive themselves as victims, or they remain silent because of fear of stigmatization and mocking. In addition, femaleand male experts and officials in social institutions and in thedepartments of criminal prosecution do not con- sidermalesasvictims. This leads to avicious circle: because even less menthan women find their waytosocialinstitutions or to justice, statistics persistently present almost exclusivelyfemale victims, leading to the establishment of astereotype, because of which male victimsprefertoremain silent ratherthan exposethemselves to the danger of a‘second victimisation’. According to Bock,two particularly vulnerable groups, whichhavenot been adequately considered, areelderly people andchildren, whobe- comevictimsoffemale ‘violence’.Results of his study indicate that agender-specific violence-preventing policy governsour society, in which male victimsand femaleper- petrators aresystematically fadedout.The selective view, whichregards menonly as perpetrators, has fatalconsequences for children, who aremistreated by their mothers, because neither they nor their fathers standany chance against the prejudices of the institutionsincharge.Bockarguesthat, although there is immense excitementand concern about the atrocity of ‘domestic’ violence, in fact only womenare considered as victims, and almost never children or any otherperson living in thesamehousehold. DanielVyleta scrutinisesthe affinities and interweaving between criminalistics and crimefiction, taking as acase study the work of Agatha Christie. At the turn of the nineteenth to the twentieth century various conceptualisations of criminality competed within the scientific discourse of crime. Criminologists in Italy,France, Germany and elsewhere in Europewere engaged in the endeavour of locating dif- ferenceuponcriminalbodies, within criminal minds or criminal lifestyles. In the 1890s criminalistics crystallisedinto arival science of criminality, calling for a shiftofattention away from the criminal and onto the technicalchallenges of Introduction5 evaluating material evidence and the psychological dimension of theinvestigative process. Crimefiction absorbed these rival narratives of crimeand made use of them,evenascriminologists scoured fictioninsearchofillustrativeevidence for their theses. Criminalistic know-how,inparticular, wassoondisseminated in detective stories hinging on the analysis of afingerprint or the correct identification of rarepoisons. By the 1920s and early 30s, British‘golden age’ crimewriters like AgathaChristie would formulate entire plotsaroundthe conflictingconceptsof criminality,playingout the public’s and the police’s criminological expectations againstthe criminalistic skills of their detectives.Vyleta elucidates thecomplex relationship of criminology, criminalistics anddetective fiction in the opening dec- adesofthe twentieth century,and places Christie’s work in thiscontext. Jan Alber addresses the politicalinstrumentality of the representations of prisons and prisoners from the Victorian novel to twentieth-century films.Prison narratives maygenerate culturalunderstandings of thelegitimacyorillegitimacy of prisonas aformofpunishment. At afirst glance, one might feel that most prison narratives – likeDickens’ novel ‘Little Dorrit’ or the film ‘The ShawshankRedemption’ – present us with innocent andlikeable prisoners(or identificatory figures), whoshed a critical lightuponthe prisonand the treatmentprisoners receive. However, upon closer inspection,one does realise that the samenarratives alsopresentuswithir- reclaimably depraved criminals who seem to justifythe existence of prisons so that the prisonisalso represented as asocietalnecessity. In Alber’sview, this ‘liberal- conservativeconsensus’ concerning theprison can be observed in Charles Dickens’ novels as wellasinlater developments in the twentieth century. Paul Mason deals with prison representations in Hollywood films. He asserts that theinvisibilityofpunishment broughtabout by the birth of the prisonensures that media discourses of incarceration contribute, in anumber of ways,topublic comprehension of penalculture.One such discourseisconstructed by Hollywood. Masonoffersaframework for exploring what can be termedHollywood’s discur- sivepracticeofconstructingimages of prison. He suggestsanepistemological structurewhich fusesgenre theory,Foucauldiandiscourse analysis andrepresenta- tion, and argues that such aframework addresses the theoretical lacunae that have previousexisted in work on the prison film.Inofferingacartographic account of Hollywood’s prison filmoutput, he further speculates on howsuch an analytic framework can usefully be employed in investigatingprison cinemathrough adis- cussionofwhatistermed Hollywood’s ‘mechanistic discourse of imprisonment’. Monika Fludernik and Martin Brandenstein turn to television trial soaps, taking as an example theGermanreality show ‘Barbara Salesch – DasStrafgericht’ which has been playing to great acclaimonGermanSAT1TVprogramme since1999. So popular is theseries that in the meantimethere arefoursuchseriesincompetition, allbroadcasting on weekday afternoons between2and 5pmonGermantelevision stations.The authorsdiscuss theway crimeand criminalsare presentedinthisse- 6Telemach Serassis, Harald Kania &Hans-Jörg Albrecht ries.They also focusonthe non-realistic elements of the show, its sensationalist transformations of the trial format, and on possible didacticelements in the films. Their work is based on aresearch project on “Norm, Law and Criminalization”. Gabrio Forti discusses the highlyselective nature andimpactofmassmedia(especially television) reportsoncrime,depicted in currentmedia theory, as well as criminological analysis, which has been confirmed by arecent Italian interdisciplinary research.All data collectedseems to support the conclusion that the media are mostly prone not to presentmacro-social conditionsasthe sources of the problem of crime, butrathertodescribe it as aresult of individual factors, which somewhat explains why noneofthe solutions usually called for by the media address the social structural causes of crime. Fortiprovidesasummary of the methods and the main results of the research,and evaluates them on the basis of recent data on amountand waysofItalian media consumption. Drawingoncurrent Italian and international literature, as well as on somecore statements about the constraints imposed on modern television, he finallytries to explainthe current image of crime in Italy – mostly similar to old-positiviststereotypes on crimes and criminals – and the limitedrange of responses to crime contained in media accounts. In this volume, as in theprevious ones, we held on to ourprinciple of non- interference:there hasbeennoguidanceorselection,much less censorship on behalf of theeditors. We are awarethatthismay have resulted in asense of ‘loose- ness’ and – in certain instances – contradictionsbetween contributions, or even a degree of ambiguity as to the scopeofthe task.But we have alwaysconsidered Images of Crime an open forum for the discussion of alternative approaches to crime and the criminal – as well as to criminologyitself, adisciplinewhich both constructs and disseminates representations, and is at the sametimeinfluenced by representationswhich are constructed in an interweaving mannerbypolitics, society, the arts, and the media. As mentioned in the beginning of this introduction,webelieve that suchap- proaches are essentialinthe asphyxiating neo-liberal atmosphere we live in. We are also aware that it is becomingmore and more difficult to convey the message, especially sincemainstream scholarship is nowmore powerful than ever.Wehave worked allthese years withoutany sort of funding and with increasing impedi- ments. And if the three volumes of Images of Crime have managed to attract even a small audience,ifthe ideasput forwardhad any influenceatall,weconsider it a successful outcomeofour efforts. We wishtoexpress our gratitude to allthe contributors for their support and understanding. We also owe them an apology for any inconveniencethat mayhave been caused.Special thanks to Robert Reinerbothfor hisencouraging reviewin Crime, Media,Culture andhis continuoussupport whichwas expressed – among others – with his acceptance to writethe preface. Introduction7

The Max Planck Institute once again played amajor role in the accomplishment of the undertaking. ThankstoMichael Kilchling and Michael Knecht, Gaby Löffler and Chris Murphy forthe final publication of the book. Finally, we would like to thank all the friends and colleagues who participated in the Images of Crime project all these years. Perhaps we’ll meet again. On September 3, 2007, Professor Günther Kaiser passedaway. An outstanding figure of German and European Criminology, an exceptionalresearcher and teacher, and asignificant personageatthe MaxPlanck Institute, Günther Kaiser was also involved in Images of Crime and honoured it by writing the preface to the second volume. As aminute token of our respect we dedicate this volumetohis loving memory.

When Sexuality Lost Its Disciplining Power Changes in Conditionsfor Control

Nils Christie &Hedda Giertsen

Bananaflies are particularly well suited for research-purposes. That is because they have such ashort life.Born in the morning, old in the evening. Next day is the day for anew generation. Aperfectspecies for studies of change! In one year, hundreds of generations have passed – available forresearch purposes. As banana flies are for biologists, sexualmores are in our timefor social re- searchersinWestern societies. Themores change so fast.Murderhas some stability – at least in their core-areas as with Cain and Abel. But sexual standards are these days aheaven of fast changes. So fast comethe changes that many among us within our own life span have experienced several generationsofvery different sexual taboos – most going,but also somecoming.

Taboos going

An observation from the male in the team: Ican still remember the first divorced woman Ieversaw. She had dark hair and lots of bodily in and out. Ijust passed on my bike, andhave never seen her again. Iwas six or seven years. It was unforgettable. Today, amajority in my surroundings have been divorced oneorseveral timesfrom formalorinformal types of marriages. Back to both of us: In ouryouth, unwanted pregnancieswereamost unpleasant scenario – often leading to whatatthattimewas called “enforcedmarriage” – the youngcouple “had” to marry to prevent ascandal. For young people of today, enforced marriages is whathappens to persons in Muslimfamilies, atradition we have laws against. Abortionwas of course illegal, as were advertisements for contraceptives. When we started as students, there was apenallaw against concubinage – living togetherwithout being formally married. There wereofcoursealsopenal laws againsthomosexual relations.Today, partners with the same sex sign asort of marriage contract,and are hailed by friends and relatives at the step of city halls after signing. The Mayor of Oslo is adeclared homosexual, so too was aformerMinister of Finance. 10 Nils Christie &Hedda Giertsen

Awell-knownphysician appeared regularly offering with medical advice on our national TV. Sometimes he appeared as aman, sometimesasawoman. More thaneverisaccepted,whathas happened?

On females and males

Ashift in the balance of power

As we all know, an important development took place in industrialized societies from the nineteen seventies onward.The short epoch with housewifeasafulltime occupation had mostly cometoanend, waged labour cameinstead. Women became economically independent. At the sametimecamethe contraceptives andrela- tively free access to abortion. Awoman was no longer dependentonagentleman's offerofmarriage in order to take part in sexual activity and have childrenwithout loosing respectability. Women candecidewhat shall be the outcomeofasexual event: achild – or notachild.These changes in practicalarrangements proved to influence the position of meninrelation to women. Maleshavesimply lost in powerand dominance.

What is this change about?

When women got control of theirbodies, sexual pleasures, pregnancies and childbirths, amain tool formale control of most other parts of her life activities evaporated. This is in accordance with Foucault’s1 view that normsand laws seemingly aiming at regulating and controlling sexual behaviour had their main importance as means to control people. Sexual normswere useful for the general disciplining of people and keepingthem in their place.

When reputationlostits grip

The means of control were of course not only laws and formal reactions. The most effective ones were probably thoseenforced in informal settings in daily life. For awoman,abad reputation as being ‘easily accessible’ might lead to severe social costs. Still this is an important topic, butnot to the extent it once was. Up till the eightiesitwas possibletoshamepeople, particularly women, into conformity, to make them subjugate to strictregulations of whentohave sex with whomand how. Areputation of notconformingmeant that she was not onlyabad woman but also awoman being seducedbyindecent wishes and pleasures. She was not in controlofherself.But themain concernwas not the woman, but the males she be-

______1 MichelFoucault (1976) (English translation 1978/1981) On the history of sexuality. When Sexuality Lost Its Disciplining – Power ChangesinConditions for Control 11 longed to (father, brothers,husband) wholostrespectability, reputationand, in her, an important object for investments. Gone are the dayswhere normsofsexuality couldbeusedasone of thecentral tools in the controlofwomen’slife. Asymbolicfuneralofthistoolofcontrol took place in Oslo someyears ago. The heir to the Norwegian throne married Mette Ma- rit, an unwedmotherand single provider for alittle boy. Not many objections were aired, notevenwhenMette Maritopenlystated that she had lived arather ‘out- going life’. She is today to an exceptional extent accepted by the population.

On youth

Since the 60s, there has been aremarkable change in the power balance between youngpersons andadults. Not in allrespects: Those with long educations aremost oftennot economically independentuntil far into their 20ies. But otherwise, much of their life is beyond controlbothofparents andauthorities.And this happens at an earlyage.Young people are out there, somewhere,easily mobilized on amobile – or they are all over the globe, electronically. We do not know their whereabouts in the electronic space, nordoweknow it in the streets, not exactly. We do not know all those our children are in contact with. And we do not knowwhattheyconcretely do; whom they associate with, and under what sort of circumstances. Butsometimes they take it all home – sex-lifeincluded. And again, grownups are without power. It is not uncommon that young people comeout from what until quiterecentlywas their “child-room”with ahitherto unknown personofthe opposite sex for Sundaybreakfast. Public debates appear now and then on the ap- propriateness of this pattern. In the largestnewspaperofNorway, ‘Aftenposten’, we found (24-02-2001) awhole page under thetitle:Whenisthe boyfriendtobe allowed to stay over in the child’s room?One example was given: The daughter had just reached 16. Her boyfriend had since long stayed over with herduringthe nights.Shortly beforethe two of them hadreceivedaweek together at amountain- resort as aChristmas gift fromthe family. She was 15 at that time, which meant thattheir relation,legallyspeaking, exemplifiedasex crime. Anotherindicator of changedmores was exposed in ‘Dagsavisen’ (16-06-2005), also amajornewspaper in Norway, one close to the government. All girls above 16 yearsofage are, if they so wish, givenpills againstpregnancy.Itistoreduce the number of abortions. They get the pills free of charge. But according to the newspaper, the costs for the Statehave soared, and therefore the authorities wanted to remove the most expensive pillsfrom the assortment. Included in the text about all this,wefind apicture of two pretty younggirls,crystal-clearintheir negative view on this untimely restrictionoffree choice of contraceptives. Gone are the days of hush – hush. Young people have asex life,and they don’t hide it. 12 Nils Christie &Hedda Giertsen

What is illustrated is aparallel development to what happened in the control of female sexuality.Here, in Western countries,parents have lost controlofthe sexual life of youngpersons, butthereby – and again in accordance with Foucault – also over other aspects of youngpersons life.

On children

We do notneedchildren forworkany more.Nogoats to guard, no nets to clean, no wood to chop. Without material functions, kids representaproblem – particu- larlyunsuitedfor participationwhere grown-ups work. Kids are not only out of work, but forbiddentoworkthrough laws against child labour. Thelifeofgrown-ups is made possible by keeping children away,inkindergar- tens, schoolsand day-care homes. Astrike in this support system for the life of adultsrepresentsacatastrophic event for parents. Kidsare in this situation anuisance,but aremarkably wanted one. In divorce cases, the parties can agree on the split up of property. But where should the children go? In the old days, somethirty or forty years backinWestern countries, it was obvious; they should go with the mother.But not now, not any more. Fathers are fighting, claimingtheir property rights to their smallnuisances in theformofac- cess or contact with those children we usually are so happy to get rid of in schools or day care. In several countries,fathers havecreatedspecial organizations to promote their rights to childrenafter divorce. At other arenas, similaractivities take place: Unisex-couples – males as well as females – are fightingfor theirright to adopt children. Anew termhas recently been coined.Modern parents are said to be “curling parents of serviced children” (Hougaard 2005). Parents are desperately polishing theground the children will tread, smoothing thesurface, to their best ability removing obstacles so that the small ones can slidewithout friction – until reaching maturity – or catastrophe. Playgrounds arerebuilt to be in accordance with EU standards. Thickrubber-mats coverthe ground belowthe equipment for climbing andplay, to guarantee soft falls.Trees to climbinthe forests are obsolete. They don’t work for us. They will not necessarilytakecareofusinour old age, that is what we have theState for, or insurancecompanies.Nonetheless, they are important to us. Instinctually. Maybe also as our last link to the largewheelofna- ture;birth, growth, maturity?Ormaybe thereismoretoit: Ihave achild. Iexist! This maybesomeofthe base for their royal status. Such dare and vulnerable beings must be protectedagainstall sorts of dangers – also thesexual. Hereisanarena wheresexualnormsstill play an essential role; in thefamilies and in the dangerous streets. When Sexuality Lost Its Disciplining – Power ChangesinConditions for Control 13

Sexual crimes

In this situation where so much is accepted, and where the power balance between manand woman as well as between young and grownups are greatly changed, one might perhaps have expected that reported crimes on sexual acts would have declined and quickly approached zero. But this is far from being the case. With changes in the power-balance, somenew battlefields emerge, while someold ones disappear. Read as areportonsocial changes, the crimesituationconfirms what we have said so far. First:

Reportedcases of rape have increased

The males have lost authority and reputation has lost someofits grip. That means that the female parts in such occurrences havelesstolose by reportingon whathappened, and are also now more listened to and taken seriously. With increased sexual freedom,itisnot so easy to stigmatize her for being at the wrongplace at thewrong timewith the wrong clothes. It is her right to be there. Hernormal right. What is no longer seen normal,isthe offending man’s behaviour, maybe also theman himself.Earlier, the positionsofoffender and victim were blurred; both parties – the offender as well as the victim – were seen as somewhat guilty taking part in unwanted, indecent, sexualbehaviour. She by being there, he by being ‘a bit too masculine’, or as aman who just acted accordingtomen’snatural inclinations. Today, whenthe possibilityofusing norms about sexuality as ameans to control people has declined, when sexuality has lostmuchofits controlling power, females will to some extent have improved their positionincourt cases. The offender is now more clearly seen as the responsible one, if guilty as nothingbut an offender. It is not quite that easy for him to blame the victim and negotiate his position – at least not to the sameextent as before. Eveninthissituation, the suspect is very oftennot foundguilty, this to thedisappointmentofboththe complainant and to the many female pressure groups. But this result is inevitable, when courts function as they are supposed to function. Since such cases will often have no witnesses or technical proofs,itwill be hiswords against hers. In such asituation,adecent court hasnoalternative to an acquittal according to the principle that the benefits of doubt goes to the accused one – the one to receive pain.For ourreasoning, the most importantelement is theincrease in reported complaints to the police, not the outcome of the penal proceedings. But this outcomepoints to the need for other answerstorape situations than penal courts. In linewiththe development of decreased male dominance, new types of rape have gained attention in several countries: “rape in marriage” and “rape of prostitutes” – inconceivable categories some yearsback when sexual access to the wife belonged to the property right of the husband, and wherethe prostitute was in a position where she had no rightswhatsoever. 14 Nils Christie &Hedda Giertsen

This tendency to reduced space for negotiations is illustrated in anew law in Norwayfrom 2003, criminalising “negligent rape”. In rape cases,men had often claimed that they interpreted the woman’s ‘no’ as a‘yes’, and it was not unusual that the court accepted this. The new law reflects that menare supposed to understand and respect that ‘no’means ‘no’. These changes indicate that these types of offenders now are perceived as more similar to offenders who have committed traditional crimes: they are theones to blame, andare therebyinapositionmore difficult to negotiate.

Incest In modern families adangerous participanthas surfaced; thefather.Thisisre- flected in data on incest. Up to 1984 we hadnearly no cases on incest registered in the crimestatistics – the number of such cases under investigationbythe police dipped between 5and 14 per year. Butfrom 1985, we experienced asteady growth. In 1989 the figure passed 100 per year, and has later mostly kept above that level. It is nearly all father/daughter relations. Up to 1968, such cases were close to non- existent – that is in thestatistics,but not in realty, certainlynot. The reasons for the father’s appearance in the statistics is probably clear. Fathers havelosttheir authority as the representativesofthe state in the family. Women and children are now listened to, at leasttoamuch largerextent than they were before.Their storiesare taken seriously and brought into thepublicdomain. But it is not so that all this lost power of thehusband has gone to the wifeand children. The State has taken much of it back, sending acontrolling eye straight into thelifeoffamilies with children. This is done through observationsmade by employeesinkindergartens, schools and agenciesestablished to care for children’s health (Kjersti Ericsson 1996). These will report to other authorities – the police are one of them – if they suspect misbehaviour.Thereare reports (Dagsavisen 27.06.05)ofwhole families moving to other districts to escape interferencefrom Child Welfare Boards.2 Also pregnant women areunder surveillance when it co- mestocontrol of the foetus. Doctors and health authoritiescontrol the ownerofthe wombsothat nothing wrong shall happen to the comingcitizen(Barbara Duden 1993). If the pregnant woman is adrug-user she might be forced to stay in hospital until afterdelivery,and perhaps experience thatthe childwill later be taken away from her.

______2 This brings back memories fromthe 18th -and 19th centuries when Romany families (travellers in some countries, tinkers in others) foughtmanydesperate fights, mostly los- ing, against authorities engaged in “rescuing” their children from alife as travellersand by forciblyplacing them in children homes. When Sexuality Lost Its Disciplining – Power ChangesinConditions for Control 15

Thepaedophile

Then to thestreets:Wehave every reason to thinkthatthere aredangers out there.Weread about it. We see it on TV.Terribleacts. We see how children are sedu- cedintosituations, whichsuddenlychangeand becomenightmares of force and assaults followed by lifelong problems. If the media one day might be without any particularhorrors from Oslo,wemight get somesupply from Stockholm,orfrom Belgium – themaincountry for such exportthesedays.Someparents might disco- ver their childrenonmobile- or pc-displays, having been photographed in situations which up till recently belonged to the most intimate private sphere. And we can no longer protect these youngsters through types of control which are explicitlyor implicitly based on awish to control theirsex-life. They arefree – but then also in danger of completely unacceptableapproaches of violence or seduction. Thisisagain reflected in the police statistics. In acolumnreportingcomplaints of illegal sexual acts against personsbelow 14 years, we meet the sametendency of strong increase.Upto1982, the figures kept below100,but recently the numberof such caseshas edgedclose to 500. In our interpretation, this is an illustration of the effect of two factors in interplay. First, it is apicture of the growth in anxietyamong adultsregarding the situation children existsin. Secondly, increased female powermight also here play arole. Mothers are now in aposition where they can voice standards for what is not acceptable – and be listened to. ‘Don’t transgressmyborders. And don’t touch my child – at leastnot againsther or his will – or if you are considerablyolder!’ This situation is one thatcreatesfertile groundfor the rebirth of an ancient role, now converted into amonster; the paedophile.Bad anddangerous – at last one that a great majority in our sexually toleranttimecan fiercely condemn.3 The situation has changed. In earlier years incestand sexual assaultsaswell as rape were more dominated by amale perspective; as part of men’s unruly nature and strength – astrength that of course was also highly needed and appreciated in an economydependent on theseattributes. Today, such acts are to agreater extent perceivedbywomen and also by many menasnothing but exploitation of force towardspersons in more weak positions. In this situation, therespected paedophile from ancient Greece is converted to one of the most despised beings of modern societies.Hebecomesan outcastfromordinarysociety and an outcast from the societyofprisoners.

______3 It is adanger that the extreme anger directed against suspected paedophiles might paralyze the courts and bring them to forget their obligationstoalsoprotect the suspect. Much due to apensionedjudge, Trygve Lange-Nielsen, manysuch caseshave been re- opened,and earlier convictedmen have been acquitted – some of them after serving several years in prison. 16 Nils Christie &Hedda Giertsen

Prostitution4

The phenomenon of prostitution is abattle ground around questionsofmeaning: Is it sin?Isitthe behaviourofapoor victim?Isitcrime? Is it work?There are several broad streamsofthinking here,often runningsidebyside. Firstabout the sinner: Sex for money, adeplorable sell-out, atotalcontrast to the Maria-image, the idea of love as something above money, andanoffence against prudence. Butnot totally so, which explainsthe survival ability of prostitution. In Norway prostitution was forbidden until1902, whichmeant it was acrimetobea prostitute. But in practice this crimewas tolerated and regulated through city- ordinances.Prostitutes had to be controlled by the police-physician until 1887. We have famous paintings of the degradationceremony in the policedoctor’swaiting room.Women in prostitution were notallowed to use streetcars;thiswas to prevent embarrassment in case theymight have mettheir customers on public ground (Kjelstadli1990). But slowly,the picture of the sinner wasconverted into the picture of the victim. Variousformsof“rescue-groups” appeared. Shelters for “fallen women”were established, laterfollowedbyservice-and self-help centres and organizations. Stu- dies were made on thecomplicated life prostitutes hadlived;difficult childhood,a youth oftenincluding sexual assaults andlivingconditions far below acceptable standards, alifewhichwas not made easier by heavy use of alcohol and drugs. They werevictimsoflife-circumstances.And then, as strongly voicedbyHøigård andFinstad (1986/1993)who interviewed prostitutes in thestreets,these women were alsovictimsofprostitution itself. Theconstant violationsofphysicaland psychic integrity have in theend thesameeffects as being victimsofviolent acts. With these and similar impressions in mind, feminists in Norway initiated actions againstcustomers of prostitutes. The word “Whore-customer” was painted on somecars whiletheywere negotiating atour; lists with names and addresses of some customers were set up in public places. Other direct formsofshaming customers were also applied. Linked to this, anew category of crimeappeared: theprostitute-customer (‘hore- kunde). If the prostitute is seen as avictim,and also furthervictimisedbythe customer, the naturalnext step is to criminalize the customer, not the prostitute. Høi- gård and Finstad (op.cit.) suggested this, arguingthat the customerisanordinary manliving an ordinary life where buying sexisanexception.His act of being a customerisnot an integrated part of adeviant life style5 and he is therefore sup-

______4 ThankstoMay-Len Skilbrei for comments and references. 5 For another view on customers in Norway see Annick Prieur and Arnhild Taksdal (1998). When Sexuality Lost Its Disciplining – Power ChangesinConditions for Control 17 posed to be deterred by penalpunishment.6 In Sweden it is today acrime to be a customer of prostitutesand Norway seemsset to follow in 2008. To criminalize the customer might of course complicate the life also for the prostitutes. But at least somegroups of feminists will disregardthatargument. They perceive prostitution as the ultimate institution that undermines the possibility for women to be acceptedasbeing of equalworth to men – not only for those who directlytakepart in prostitution, butfor anywoman,whatever her situation might be. Prostitution is seen by them as the fundamental basis for womenbeing seen as objects, as acommodity for sale. (Asp-Larsen2002;7 for anotherview see Skilbrei 2000). If prostitution is seen as degrading and destructive for allwomen, penalsancti- ons might seem appropriate. Since theprostitute is seen as avictim, sanctions must not be directed against her,but against thecustomer. If these measures make life moredifficult forwomen in prostitution today, this is seen as aminor obstacle compared to the damage prostitution represents forall females (MonaAsp-Larsen 2002,Eva Lundgren and Westerstrand2004). We see aline here where theposition of the prostitutehas changedfromfirst being asinner againstGod, then to avictim of circumstances, and lastly ending up as asinner againstall women. But anotherperspectivehas alsogained ground in recent years. That is the per- spectiveinperceiving prostitution as work. Changes in the power balance between women and menopenupapossibility for leaving the victim status,aswell as the sinner status, but continue in prostitution. In aculture with an emphasis on trade, moneyand privateenterprise, andwhere females have control over their own sexuality,itseems to be easier to continue in prostitution withoutstigma. The activityisseen as similartoentering the labour market.8 This view on prostitution is also in accordance with economicindepend- ence, which womenfought for. Seeing prostitutionasanordinary occupation has been put into official practise in TheNetherlands where prostitutes organize and have rights and obligations as other wage earners. Following this perspective, the buyer is seen as acustomer – likeinother trade transactions. Here there is no room for criminalizing,neitherofthe prostitute nor of the customer. ______6 Fromthe same reasoning theyalso suggested decriminalizing the pimpwho has a love-relationtoawoman in prostitution.His crimeisintegrated in his dailylife, so it would be in vain to criminalize his behaviour. 7 Asp-Larsen (2002) writes: “We have avisionofasociety wheremen and women are equal, wherenowoman will be avictim of discrimination, violenceorsexual assaults. It is impossible to reach such asociety if the sexuality of youngwomen can be bought. This is something girls and boys know in their heart.” (Our translation) 8 May-Len Skilbrei (1998) gives adescription of this perspective in her book “Nårsex er arbeid” (“When sex becomeswork”). 18 Nils Christie &Hedda Giertsen

Afierce discussion has raged in recentyears over this topic among Scandinavian and Dutch feminists: Is prostitution to be seen as work and thereby to be compared to otherforms of work, open for taxation,sickleave, pensionbenefitsetc? Are prostitutes to be seen as persons who deliberately decide to sell sexualservices and cope with this like other workers cope with other formsofwork thatalso might have their costs on bodies and moralpositions?Orisprostitutiontobeseen as a particular form of deviantbehaviour, carriedout by victimised personswho are forced into prostitution by adifficult history and living conditions?Are those who look at prostitutionsofar out that they aretobeseenasmisled by false consciousness and therefore to be kept off the public debate?9 Bothsidesinthisconflict includepeople who see prostitution as aproblem, as an activity most often with heavy tollsonbody and soul, something to reduce and bringtoastop.But they disagree on descriptions,analysis, andonwhatare good measures:Isitright to use law, police andpunishmenttoget ridofprostitution by constraining measures?Orshould onetry to improvethe living conditions for wo- meninprostitution, who often also have severalother problems.Maybe improved working conditions forprostitutes represent afirst step on theway out of prostitution andintoother formsoflabour(Kirsten Frigstad 2001).

*** In many ways, this discussion can be seen as aparallel to theone we have (orra- ther need to have) in thedrug-arena. Should we “normalize”someformsofdrug use – and make harm-reduction the main aim? Or shouldweput up adrug free so- cietyasour main aim, followed by azero tolerancepenal policy?Isitthe social construction of the derelict,the picture of the miserable victim driven by his cra- ving for the next shot thatmakesitpossible to uphold acontrolsystem creating so much misery? Might aconversion of the perspective; from sin and victimsand drug-sharks to persons in need of help or eventradesmen andtheir customers give us improvedpossibilitiesfor real help to those in trouble? And might asimilar reasoning be applied forprostitution?

______9 See Lundgrenand Westerstrand (2004)for this view and Renland(2004) andSkilbrei (200 )for criticising this. When Sexuality Lost Its Disciplining – Power ChangesinConditions for Control 19

The end

We have, withalittlehelpfromFoucault, tried to understand the qualityand importance of control of sexual behaviour: Earlier, the fieldofsexuality wasuseful forgeneral formsofcontrol of females within western countries. With the decline in male dominance and astrengthening of female perspective, the man’s (or woman’s) use of physical or psychical force and threats of force is seenasthe dominant characteristics of the sexual offences,thereby linking them to ordinary and criminalized acts of violence, threats and coercion.But thereare costs in these changes. One of themisthat the paedophile becomes particularly suitable as the new monsteramong us, seen like that by both females and males and both outside and insidethe prisons.

References

Asp-Larsen, Mona: Forbykjøp! In:Verdens Gang, 07.10.2002. Björk, Nina (2000/1999) Sireners sang. Tankarkringmodernitet och Kön. Wahlströmoch Widstrand. Stockholm. Duden, Barbara (1993) Disembodyingwomen:perspectives on pregnancy andthe unborn. Harvard University Press, Cambridge, Mass. Ericsson,Kjersti(1996) Barnevern som samfunnsspeil. Pax forlag, Oslo. Foucault, Michel (1976) Thehistoryofsexuality.Harmondsworth: Penguin. Frigstad,Kirsten(2001), “Besteborgerlig medforbud”. In: Klassekampen 21.03.2001. Hougaard, Bent (2005) Curlingforeldre og servicebarn: en håndbook ibarneoppdragelse. Gyldendalakademisk, Oslo. Høigård, Cecilie og LivFinstad(1986/1992) Backstreets: prostitution, money and love. PolityPress, Oxford. Kjeldstadli,Knut(1990) Den deltebyenfra 1900 til 1948.Oslo byshistorie4.J.W.Cap- pelens forlag, Oslo. Lundgren, Eva and Jenny Westerstrand: Vil Norgehakjønnshandel? Prostitusjon somdel av norsk kultur og samfunnsliv. (“Does Norway want tradeonsex?Prostitutionaspart of Norwegiancultureand social life”). In:Dagbladet 22.11.2004. Prieur, Annick and ArnhildTaksdal (1989) Å sette pris på kvinner: menn somkjøper sex. Pax, Oslo. Skilbrei, May-Len(1998)Når sexerarbeid. Pax, Oslo. Skilbrei, May-Len (2000) “Oss” og “De andre”endaengang. Fontene,5.pp. 37-38.

Youth, Moral Panicand Late Modernity

Jayne Mooney &Jock Young

It is 1964 on an Englishbeach at Easter in thesmall seaside town of Clacton, the weather is cold and wet as usual, two groups of kids – Modsand Rockers get into a spat, somebikes and scooters roar up and down the Front, windows are broken, some beach huts are wrecked. There was not agreat disturbance – the TV footage looksderisory – but there was an extraordinary disturbanceinthe mass media commentaryand amongst members of the public. ‘There wasDad asleepinthe deckchair and Mummaking sandcastles on thebeach’said The DailyExpress – one pictures them relaxed, pink in the sun, Dad perhaps with the traditional hand- kerchieftied around his head,and then suddenly a‘Day of Terror’ with the ‘Wild Ones’ who ‘Beat Up The Town’. This pattern wasreported over atwo year period involving other seaside towns, roaminggangs of mods and rockers ‘from London’ periodically‘invaded’, caused mayhem,displayed their arrogance and new afflu- ence, insulted decentpeople andwere in amemorable phrase ‘sawdustcaesars’ puffed up with theirown cowardice and aggression. One reading of thisseriesofevents (andmanylike it)which is encountered frequently in the literature is that an event occurred (for areason which is unimpor- tant), that it wasinitselfoflittleconsequence, butitwas mistakenlyreported and exaggerated by the mass media and consequently generated afeeling of fear and panicinthe general public. All of this is, in part, true but such asimpleliberal, lin- ear model from media down to public scarcelycaptures thenotionof‘moralpanic’. Whatismissing is boththe senseofenergy and intensity of this happeningand, rather than aone-way process, this is acollective endeavour, for the youth, the media, the moral entrepreneurs, thecontrol agents andthe public are, so to speak,accomplices in the action. Stan Cohen in hisrecently published third edition of Folk Devils and Moral Panics reminds us of the continued importance of its contribution to deviancy theory.Itisarichly analysed text of much greater complexity andsubtlety than many of the summaries and studies of moralpanicswhich have followed it and it reads today with as great impact as it did in the early Seventies. 22 Jayne Mooney&Jock Young

Let us look more closely at the constituents of moral panic theory: 1) SYMMETRY: Both thesubculture andthe moral panic have to be explained – that is both theaction and the reaction.Furthermore, they must be explored symmetrically, using the samemodelofanalysis. Thus both moral panic and subculture are read as narratives where actors attempt to solve problems facing them.For this reason althoughinthe main body of the bookCohen focuses largely on moral panic, in the fascinating introduction to the second edition‘Symbols of Trouble’ he turns to subculture and finallyreturns to moral panic in the introduction of the thirdedition. 2) ENERGY:Apulseofenergy is introduced at each stage of the process. The kids on the beaches are drivenbyacreativity and exuberance which generates youth subcultures. They create but they also thrill to transgress: to get up peoples’ noses, to annoy,toact out in front of the world’smedia. Thus Dick Hebdige’s surmise in the wonderful Hidinginthe Light:‘spectacular youth cultures convert the fact of beingunder surveillance into the pleasure of being watched’ (1988, p8). Furthermore, the public watching the skirmishes are not mere passive spectators:they are morally indignant, they aregladthatmagistrates and policeman reaffirmthe boundaries of de- cency and propriety (as do the magistratesand police officersthemselves). They arenot merely manipulated recipients of media stereotypes – they want those messages, they read the popular papers and watch the telly with gustowhilst themedia, in turn,havelearnt that thereisaready market in winding up audiences – they have institutionalized moral indignation with both enthusiasm and self-righteousness. (See Cohen and Young,1973). In many ways such an invocation of the energy involved in therelationships between the public, the agents of the criminal justice system, the mass media and the youth themselves stands as aclear precursor of therecentwork in cultural criminology (see Hayward and Young, 2004). 3) THE REAL PROBLEM, THE REAL SIGNIFICANCE Cohen is at pains to stress thatthere is areal problem there and that what is happeningisnot simply an illusion, amisperception. He touches base with Svend Ranulf’s (1964) classic discussion of middle class moralindignation where suchinterventionisseen to have a‘disinterested’ quality – it is a moral anger about something which does not directly affect their interests. Cohen,quite correctly,doubtsthatthe distinction between interestand dis- interestisaviableone (2002, p16);for the hedonismand spontaneity of thenew youthculture forthe Mods, did threaten the normsand standards of their elders: “The Mods and rockers symbolized something far more important than what theyactually did.They reached the delicate and ambivalent nerves through which post-war social change in Britain was experienced. No one Youth, Moral Panic and LateModernity23

wanted depressionsorausterity butmessages about ‘neverhaving it so good’were ambivalent in that somepeople were having it too good and too quickly…Resentmentand jealousywereeasily directedagainstthe young, if only because of their increased spendingpower and sexual freedom.Whenthis was combined with atoo-openfloutingofthe work and leisureethic,with violence and vandalismand drugtakingsomething more thanthe image of apeaceful BankHoliday at the seawas beingshattered.” (2002,pp161-2). You cannot have amoral panic unless there is something out there morally to panicaboutalthoughitmay not be theactualobjectoffearbut adisplacement of another fear or more frequently amystification of the true threat of the actual objectofdismay. Thetextofpanic is,therefore,atransposition of fear – the verydisproportionalty and excessofthe language, the venom of the stereotype signifiesthatsomething other than direct reporting is up..Listen to the much quoted News of the World report (21/9/69) on the hippie squat in 1969 in an elegant Georgian mansion in Piccadilly, “Hippie- Drugs- The SordidTruth” Drug-taking, couples making love while others look on, aheavy mob armed with iron-bars, filth and stench, foul language,thatisthe scenein- side the hippies’ fortressinLondon’sPiccadilly.These are not rumours but facts, sordid facts which will shockordinary decent living people. Drug taking and squalor, sex …and they’ll get no state aid etc.” Savour the mixture of fascination andrepulsion, attraction and condemnation, of atext which contains fragments of truth, rephrased and contextualized,astheysit there‘litonlybythe light of theirdrugged cigarettes’ led by the elusiveDrJohn the nom de guerre of Phil Cohen whowas laterto resurface, in awicked twist of fate, as aleadingtheoretician of subculture theory (See commentary in JYoung 1971,MBrake,1985and especially P. Cohen,1995) If onetakes thesethree ‘classic’accountsofmoralpanics. Stan Cohen’s study of mods and rockers (1972) situated in 1964/6, Young’sstudy of cannabis and hippies in The Drugtakers (1971) situated in 1968 and Stuart Hall andhis team’s studyof the mugging panic Policing the Crisis (1978) situated in 1972, they all seem to represent major structural and value changes in industrial societyasrefracted through the prism of youth. As was argued in The Exclusive Society (Young,1999) thepostwar period experienced aseismic change in values and structure as we drifted into late modernity.There was ashift from asociety which stressed work disciplineand deferred gratification to one which emphasized abalance between work and home, ahard- working, hard consuming Keynsianism and, then further, ashift fromthe goal of simplematerialsatisfaction (‘The American Dream’) to onewhere immediacy, 24 Jayne Mooney&Jock Young spontaneityand hedonism became in the ascendant and where amaterial success merely becameastagingpostonthe route to self-expression and discovery. And we seethe structure of society shift from which was inclusivetoone of exclusion, of adeclining centre of stable work and career,aninsecuremiddle and alarge un- derclassoftransient, insecure and grossly undervalued labour (see Schulman, 2003). Youth cultureprefigured, as always,these socialchanges sometimesasaharbin- gerofthe future,sometimes as agrim facedresistance. Moralpanicsabout the teenagerevolution, the hippie,and black youth echoed thesechanges.The inven- tion of the teenager and the reinventionofteenage by youththemselveswas oneof the major structural changesofthe twentieth century (see Shorter, 1977). On its back arose the most extraordinary flourishing of popularculture,nomoresoin Britain albeit late to arrive and looking always over its shoulder to America. The veryausterity of post-war Britain,its rigid demarcations of class, its warinduced senseofsacrifice and discipline,its failed imperial past- allprobablyadded together to make theyouth cultures of Britainall the more spectacularwhen they eventually brokethrough.What was happening in Clacton, in Brighton, in Margate of all places,and of course in London, was on the face of it mysterious, in aMary Poppins sense of something strange afoot, something about to happen. But change wasinthe air, even though,someofits chiefarchitectsand minstrels did not un- derstandatthe timethe significance of what washappening.But TheStoneswere playingatthe CrawdaddyinRichmond, Rhythm and Blues in of all places The ThamesValley, Eric Clapton was at KlooksKleekinKilburn and the quintessential Mod bandThe Whowere at Eel PieIsland launching their gig with ‘I Can’t Ex- plain’ andendingitwiththe amphetamine stutter ‘why don’t you all f…f…fade away’. And, of course, the British public half sensed all of thisand in arealway the moralpanic overthe mods and rockers was adefenceofaworld that wasslipping away – an act of moral resistance if you want. In ten years timethe musicwould be mainstream,the austerity and self-discipline of the past regarded not with nostalgia butdisdain and the Mumsand Dads themselves will have deserted these windy seaside towns forthe warmth and vino of the Costadel Soland Ibiza.

Late Modernity and the Permanent MoralPanic

The conceptofmoral panic, thus, arose at aparticular timeofchange both in the wider world and in theacademyitself. It occurred in aperiod when societyand culture seemed to move rapidly ahead and where sociological theory bustled nois- ily behind. But this is not to arguethat the conceptshould be locked in time. The most seminal antecedent is Kai Erikson’s Wayward Puritans (1966)which discussed ‘the shapes of the devil’ in Puritan New England and amongst other things the witchcraft trials at Salem.From theretothe medieval witchcrafthysteria and Youth, Moral Panic and LateModernity25 then viaArthur Miller’s Crucible to McCarthyism and back over the Atlantic to the furies of anti-Semitism.There can be little doubtthat these are the unspoken historical antecedents of theconcept. But what of today, is thereanything special about moral panics in the twenty firstcentury? Angie McRobbie and Sarah Thorn- tonintheir brilliantupdating of theconcept in the article ‘Rethinking Moral Panics for MultimediatedSocial Worlds’ (1995) generate somesignificant pointers. Amajor thrust of their argument is that in amedia saturatedworld the division between themedia representation and the untouched world belovedof‘effects’ research is increasingly unlikely.‘Social meanings and social differences are inex- tricably tied up with representation. Thus whensociologists call for an account which tellshow life actually is, andwhich deals with realissuesratherthan the spectacularand exaggeratedones, thepoint is that theseaccountsofreality areal- readyrepresentations andsetsofmeanings about what they perceive the ‘real’ issues to be.These versions of ‘reality’would also be impregnated with the mark of media imagery rather than somehow pure anduntouched by the allpervasive traces of contemporary communications (pp570-1). Or as Ferrell and Saunders put it ‘as cultural criminologists we study not only images but images of images, an infinite hall of mediated mirrors’ (1995, p14). Contemporary youth cultures are intensely aware of their image, they grow out of their representation bothatthe moment andbybricollaging from across the worldtogether with a‘retro’gaze at the past(seeGaines,1998). Moreover,as McRobbie and Thornton pointout, theyare likely to be intentionally transgressive and to welcomeinapunk fashionmoral panic and adult condemnation.Further, the agencies of control themselves – the police and government spokespersons, exist in aworld of press release, spin and representation and counter-representation. They will be scarcely outsiders in the media circus. Where we differ from McRobbie and Thornton’s analysis is that their notion of a‘multimediated world’ would suggest a greaterdiversityofrepresentations that actually occurs.Ortoput it anotherway diversity, of course, occurs from specialty magazines to internetchat circles but the main thrustofrepresentation hinges around themajor media chains and their ever- increasing oligopolization.Panics and scapegoating would seem to focus upon the social excluded: in particular the triptych of welfarescrounger,immigrant and drug addict frequently racialized and to whichafter 9/11 afurtherrefracting mirror has been added:that of terrorist. In this we differ also from Stan Cohen,the notion of ‘permanent moral panic’ maywell be somethingofanoxymoron but the timeof transientpanic is long past.Inthe fibrillating heartlands of thefirst world; images of theexcluded, theimmigrant, the drug user andthe terroristvisit us daily, the intensitydropping and peakingliketremoursbut never vanishing nor presenting temporary relief. Here we have theextraordinary structural change wherein asizeable section of the population havebecomesocially excluded then and then cast with the stigmaof trouble, contamination anddanger. MichaelHarringtonwrote in the sixties of The 26 Jayne Mooney&Jock Young

OtherAmerica (1962) aworldwherethe poor had become invisible,today we have, in contrast, an othered America (and elsewhere acrossthe industrialworld) where the poor are in the searchlightofcondemnation, theobjectofstigmatization, surveillance andblame.The notion of moral panicdelves to the very heart of our social order, its occurrence is potent ammunition in the production of division, it is subtle rhetoric in the fabric of legitimation.

Bibliography

BrakeM,1984, ComparativeYouth Culture,London: RKP. Cohen P, 1997, Rethinking theYouth Question,London: Macmillan. Cohen S, 2002, Folk Devilsand Moral Panics,3rd Ed,London: Routledge. Cohen Sand Young J, 1973, The Manufacture of News,London: Constable. Erikson E, 1966, Wayward Puritans,New York: John Wiley. Ferrell Jand Saunders C, ed,1995, Cultural Criminology,Boston: Northeastern University Press. Gaines D, 1998, TeenageWasteland, Chicago: University of Chicage Press. HallS,Chritcher C, Jefferson T, Clarke J, Roberts B, 1978, Policing the Crisis,London: Macmillan. HarringtonM,1962, The Other America, NewYork: Macmillan. Hayward Kand YoungJ,2004,Cultural Criminology: SomeNotes on the Script, Theo- retical Criminology,8(3), pp259-72. Hebdige D, 1988, Hiding in the Light,London: Routledge. McRobbie A, Thornton S, 1995, ‘Rethinking ‘MoralPanics’ for Multi-Mediated Social Worlds’, British JournalofSociology,46(4), pp559-74. Ranulf S, 1964, Moral Indignation and Middle Class Psychology,New York: Schoken Books. Schulman B, 2003, The Betrayal of Work,New York:The New Press. Shorter E, 1997, The Making of the Modern Family,New York: BasicBooks. Young J, 1971, The Drugtakers, London: Paladin. Young J, 1999, The ExclusiveSociety,London: Sage. Targeting Majorities New OrientationsofPenal Control

Nikos Paraskevopoulos

1. The hypothesis in brief

In late modern times globalisation seemstobeirreversible, along withanexpan- sion of markets, communication networks andmulticulturalism. However,most studies presently show that the gap between rich and poor countriesiswidening. Theworld is becoming more complicated andchallenging,asimmigration grows and social institutionsgradually abandon theirroleinthe distributionofsuch goods as health andeducation. Obviously, these changes reflect on the reality, models and images of penal control. Someofthem are well discussed. Instead of the ‘just deserts’, a‘law and order’ model influences law reforms and crimecontrolstrategies.The terrorist attacks in Manhattan,Istanbul, Madrid andLondon accelerate this development. My hypothesis has as its starting point this turn, with the aimtolookfurther into the issue, which concerns tendencies,not certainties of the past,already established in late modernity. In investigating the targetofthe contemporary systemofpenal control, we have to consider the declared aimsofpenal law, as well as its latent functions.1 This will help us explain sometendencies at the levelofgovernanceand practice,which are sometimesneglected by normative theory. According to my hypothesis, majorities of people risk to be targeted both by serious crimeand by penal control. Every civilian,passenger or pedestrian, is at risk of being victimized by terrorism. At the sametime, everyone canbesubjected to surveillance, to arrests forminor offences, or to severe investigation measures.The classic Panopticon of JeremyBentham2 alwaysoffers aclear image,mirroring penal control. Nowadays, however, surveillance is extended beyond the boundaries of apenitentiary. Almosteverybodyisunder surveillance, notonlycriminals or sus- ______1 Duff&Garland (1994: 34) are asking how far these latent functions can be seen as the realdeterminantsofpenal practice. 2 Theterm‘classicism’isused to denotethe criminologyofJ.Bentham (Garland, 2002: 11). 28 Nikos Paraskevopoulos pects of acriminal offence, or even deviants or outsiders. Targeted are the majorities, including all known minorities and outsiders, while only the higher part of the social structure remainsout of the target. Certainly, both substantiveand procedural penallaw have alreadybeenapplied equallytoeverybody,under conditions prescribed by therules. An abuse – or change – of thesystemwilloccur,ifpolice and penal power could intervene without any precondition. We will discussthis eventuality.

2. Towards globalisation of the penal control:aboutthe policies

After the SecondWorld War, the full employment economyinspired optimism andfavouredthe inclusionofmore citizens in themarket.The traditional -liberal penallaw systems reached abalanced function: protection of goods through secu- rityand punishment on one hand, guaranteeing of rights and resettlementofof- fendersonthe other. An actual globalisation, as aset of social processeswitheconomic, cultural and ideological dimensions, startedafter theend of theColdWar. Somedifficult condi- tionshowever emergedwith it. The potentialofserious crimewas multiplied, mainly due to the new technologies, and the terroristattacks contributed to adra- matic situation and atmosphere. Inequality of incomeand wealth also becamea major problem and issue.3 From timetotime, social or economical analyses, but also ‘light’ texts (paradoxes, etc), present findings like “theten richest individuals in the world have atotalwealthequal to thatofthe fortypoorest countries”, or “51 of the world's 100 largest economies are corporations and only 49 are countries”.4 The conceptual construction of crime and the criminal, as well as the way in which theyare controlled, are the outcomeofsocial, politicaland administrative processes (Serassis, 2001: 81). If more peoplefall in the circle of the poor and excluded and fewer are possessing wealth and power,anew fieldoftensionswillbe created. Thehumiliation of exclusionwill lead to ahardening of attitudeand behaviour.5 Somegroupswill use opportunities offered by civil society to challenge class, ethnic or race inequalities andthe statewill intervene securing the markets. Simplistic or not, arhetoric is developing, which suggests that the current world order values human life only when it contributes to the economic growth. Hence, documentedreports of violations of human rights in states well integrated in the globalised market, even with authoritariangovernments, do not seem to trouble neoliberal thinking(Evans, 2001: 59). ______3 Carlen (1994: 309). 4 Steger (2003:48). See also Lea (2002: 109). 5 Recently Young(2004:558). Targeting Majorities – New Orientations of PenalControl 29

Some features of criminality, corresponding to this outlook,are already visible in fullydeveloped anddevelopingeconomies. High crimerates are regarded as anor- malsocial fact.6 Ashift of professionalcrimefromthe blue-collar underworld to the middle-class is observed,7 as citizens do not hesitate to take illegal and unfair advantages. In someEastern and Central Europeancountries it is veryhardtodif- ferentiate between economic crimeand normal economic activity, whilst circum- stancesare favouring large-scaleeconomic activities.8 The primary labour market makes the once secure middle-classjobs increasingly uncertain9 and even young people seem to representadanger in an ageing society.10 Within this environment, both victimisationand offending are widespread. Of- fenders do not fitinthe image of the criminal,but rather in that of theaverage citizen.11 The culture of the underclasshas already spilled over into the mainstream (Lea, 2002: 131). So, somespecialists speak about akind of ‘dissolution’ of the criminal'ssubject and image into acluster of factors.12 Describing ‘actuarialism’, Jock Young writes: “The actuarialstance reflectsthe fact that risk both to individuals and collectivities has increased, crimehas become anormalized part of everyday life, the offender is seemingly everywhere in the street and in high office, within the poor partsoftown but alsointhoseinstitutions which were set up to rehabilitate and protect, within the public world of encounters with strangersbut also within the family itself in relationshipsbetweenhusband and wifeand parentand child. We are wary of scoutmasters, police officers, hitch- hikers,babysitters, people who care for theelderly,husbands,dates, stepfathers and stepmothers; the‘other’ is everywhere andnot restrictedtocriminals andoutsid- ers” (Young, 1999, 391). Undoubtedly, members of the ‘anti-globalisation’movement or civil rights mass activism fall under the targeted majority.13 Instead of normalization -integrationpoliciesand focus on justice, the newactu- arialist thinking suggeststwo things. First,the turn from the‘just deserts’ to the ‘law andorder’concept of penalcontrol.Itisoften saidthatgovernmentpolicies are currently being justified not on the basis of their providing afair punishment, ______6 Garland (2000: 367-368). See also Serassis (2004: 11), connecting this phenomenon with the transformations effected by the transition of Westernsocieties frommodernity to late modernity. 7 Karstedt &Farral (2004: 66), mentioning also other recent studies. 8 Aromaa (2000: 31). 9 Young (2004: 558). 10 Marcus (2003: 11). 11 Karstedt &Farral(2004: 66, 79). 12 B. Hudson (1996: 155). 13 For avery short review of the confrontations betweenthe forces of globalism andits active challengers see Steger (2003: 122-130). 30 Nikos Paraskevopoulos butbecause of their effectiveness in controlling crime.14 Risks depend on acombi- nation of factors making someoccurrences more or less probable.15 Policies aim at the management of theserisks of victimisation and disturbances. According to the secondsuggestion, the criminal justice doctrine should cease normalising and integrating ideas and projects.16 Actuarial techniques of risk assessment,derivedfrom the handling of dangerous offenders, havebeengeneralised and transferredtoothergroups. Thus, the definition of dangerousness is expanded. If everyone – with theexceptionofmembers of somepowerful groups – can be a suspectorconsidereddangerous, inclusion falls out of any social policy. Thus,the transition from theinclusive society of modern times to the exclusive model of late modernity is in action.17 Consequently the idea ‘tough on crime, tough on the causes of crime’18 was re- stricted to itsfirst half:the hardeningofpolicingand punishment was programmed, but the tackling of poverty or unemployment was accepted to be beyondshort or medium-term perspectives. The idea that most violations of human rightsare rather due to the current economic structuresthan to theevil sideofhuman nature is ne- glected.19 So, the hypertrophyofpenalcontrol is employedwhere socialwelfare declines andthe poor relief failstoprevent destabilisation. Aglobalcommunity plaguedbyinequalitiesand full of tensions will have the opportunity to foster co- hesion by using the fearofcrime.Security is nowanissue dominating debates and influencingelectoral campaigns in every Europeandemocracy.20 Real violence and mainly terrorism mixed up with collective fears illustrate anew environment of danger andintolerance. Since the above constituteaperspective,the most probable abuseofthe penal system will be its useasatool forthe controlofmajorities.

______14 See Cavadino &Dignan(2002: 52). 15 According to Lea (2002: 124), this leads farbeyondtraditionalideas of dangerousness. 16 Hudson (1996: 154). 17 Yar and Penna (2004: 553) criticised Young’sposition. In his reaction Jock Young argues plausibly that the dystopian projects of control and of exclusion have no inevitabil- ity(2004: 559). 18 See Downes &Morgan (2002: 297). 19 Evans (2001: 8). 20 Marcus(2003: 11). Targeting Majorities – New Orientations of PenalControl 31

3. Towards globalisation: the institutional level

Giventhe aforementioned understanding of globalised crimeand reaction, the traditionalconcept of individual responsibility, ahuman rightitself, is obscured. Theabstraction allows targeting of everyone doing just what everyone else does.21 This tougheningofpenal control is rapidly influencing the nationalpenal systems; in most countriesthe prisons are overcrowded,22 at atimewhen the number andrateofviolent crimes areslightlydeclining.Somecriminologists regard this declineasasuccess of repressivepolicies, but most of them are quitecircum- spect.23 Obviously, apenalcontrol systeminvolving majorities does not produce new integration institutionsand structures. Exclusionischeaper and easier: as a common product of exerted control, it explains theincreasing convergence between the penal systemand immigration policies at the national level.24 After reviewing and comparingthe developments during the second half of the twentieth century,one couldobserve adifferentialapplication of the respective Conventions. Within the humanistic and liberal post-war climate, the first kind of required globalisationwas theone within thefield of human rights. The Universal Declara- tion of human rights, proclaimedbythe GeneralAssembly of the United Nations (1948), and the European Convention on Human Rights (1990, 1953) constituted major steps towardsthe globalisationofHuman Rights. This globalisation was decided early, before any formation of acommonsocial and political basis couldpro- videthe requisite support. This resulted in insufficient application of both Conven- tions. In late modern times25 the demand for security,the developmentofcommunica- tions, the cooperation of police and military forces and the production of the necessary technological equipment preceded the creation of institutions regulatingsecu- rity. There followed the adoption, at the global or regional European level, of conventions and other instruments introducing effective measures againstterrorism andorganized crime. Within the European Union, the entry into forceofthe Maas- tricht Treaty marked the judicial and police cooperation as afield of main common interest for the Member States. This cooperation is regulated by the European Con- vention on Mutual Assistance on Criminal Matters, signed on 29 May 2000.

______21 See Lea (2002: 139). 22 For U.K. see Morgan (2002: 1115). 23 Melossi (2001: 33). 24 We live in atimeofextreme‘vigour, efficiencyand strictness’astodeportation of non-citizens convictedofcrimes: Kanstroom (2004: 651). 25 The concepts of security changed after1990 accordingtoDavid &Roche(2002: 146). 32 Nikos Paraskevopoulos

TheEuropeanCouncil,also, turned thespearheadofits activities towards serious crime (combating of organized crime, money laundering andcorruption, adoption of Guidelines on Human Rights andthe Fight against Terrorism).26 The Second Additional Protocoltothe 1959 Council of Europe Convention on Mutual Assis- tance in Criminal Matters hasbeenopenedfor signaturebythe member States of the Council of Europe, in Strasbourg,on8November 2001. At theuniversal level, anumberofrecent institutional achievements, such as the United Nations Convention against TransnationalOrganized Crime and the establishment of the InternationalCriminal Court (Rome, 1998), affirm the current orientation and the determination to prioritise security. Hence,asstructures and forces havealready been established, the problem of application of legal instruments forsecurity is reversed: aratherexpanded than insufficient,asinthe post-warperiod, application is being observed. Bearing in mind this expansion, we will now consider specific aspects: is thereatendencyto normalize this expansion, or does it remain an impetus, facilitated by or leading to abuses? Could we find reforms,new principles or specific instruments serving the targeting of majorities?Inanattempt to provide an answer,wewillexplore two separate fields:substantivecriminallaw on the onehand, and proceduralcriminal law, on the other.

4. Substantive Criminal Law

Theparallelconsideration of internationaland national27 penal systemsconsti- tutes an extremely difficult task. Therefore, we will examine the common source of innovations reflecting the need forstrongpenal control: these innovationsare initiated by International Conventions and Action Plans. Regularly, their adaptation andreforms of national criminal laws follow.

4.1The declineofthe certaintyoflaw principle

Punishment presupposes crime; actusreus and mens rea.The proof and gravity of theseelementsassistinthe scalingofthe severity of thecorresponding penalty, according to the classical retributive idea and theprincipleofproportionality.28 The offender is to be blamed for an offence, defined as such by law.

______26 The Guidelineshave been adopted by the Committee of MinistersofCouncil of Europe on 11 July2002. See Guidelines,Strasbourg: CouncilofEurope publishing. 27 For acomparison of European and NorthAmericancrime prevention policies, see Takala (2000: 51). 28 See Ten (1987: 154-160), v. Hirsch (1994: 128-130), Tonry(1994: 142-158), Cavadi- no &Dignan(2002:56). Targeting Majorities – New Orientations of PenalControl 33

According to the certaintyoflaw principle, whichisanessential supplement to thelegalityprinciple, theelements of theoffence must be defined preciselyand without any analogy to the accuser'sdetriment.29 The European Court of Human Rights hasinterpreted Article 7ofthe European ConventiononHuman Rights broadly, by embodying the additional clause that onlythe law can definea crime.30 These principles,supported by critical legaldoctrine, guarantee that astrictly limited number of persons confront penalties. Themodern -liberalpenal justice system allowed minimal (ultima ratio)interventions in freedom. In late modernity retributive ideas have been declining. Thecriminal system seeks to manage factors associated with the risks of victimization. Ideally, the best target should be the group of potential victimsand offenders.31 The expansionof key legal definitions suchasorganizedcrime or terrorism is an important technique usedtoexpand penalcontrol.32 The enlargement of the circle of persons controlled by penaltyisassistedbythe elasticity of definitions of criminal acts, and especially of participation in crimes. Profiling33 is easier34 than investigatingstrictly described by the legal provisions, and discovering sympathizers or inspirators of terrorism35 is easier than discovering evidence fordescribed acts of participation. Obviously, aflexible jurisdictionand the Common Lawsystem canserve more effectively the above late modern demands, than strict codifications.36 EveninIn- ternational Public Penal Law, the abandonment of the dogmaofcriminal liability forspecificactsand theuse of concepts such as ‘rogue’ or ‘terrorist’ states falls againstthe Rule of Law. The fact that major international statutes codifying crimes includeonlyaminimal number of general rules(General Part), thusleaving free space to jurisdiction, is in accordancewith the newtendencies. In general, the gradual decline of the principle of certaintyoflaw highly contributes to the broadeningofthe targetofthe penalcontrol.

______29 For Jescheck and Weigend (1996: 26), the principle of certainty of law (Bestimmt- heitsverbot)isinthe practice more important than that of prohibition of analogy (Analo- gieverbot). 30 Kokkinakis v. Greece(1993) at para 52. 31 See Hudson (1996: 154-155). 32 See Ashworth (2002: 107). 33 The first criminal conviction is the important defining the criminal profile moment, according to Soothil, Ackerley &Francis (2004: 401-418). 34 Even if it is very different than ‘face crime’. See Montet, (2002: 7). 35 Townshend (2002: 118) cites PresidentBush'sThanksgivingAddresstothe 101st Division (2001): “America has amessage for the nations of the world. If you harbour ter- rorists, you areterrorists... And youwill be held accountable”. 36 For Savona,Manna &Forte (2000: 63-64) the distinction between codification and non-codification has lostimportance. 34 Nikos Paraskevopoulos

4.2. Actusreus: rather risk, than harm

The organizingpointofsocial defence – and the typical image of actus reus – is risk, rather than harm.Amajority of thepopulationisinvolvedinconditions(poverty,immigration, culture of violence,racism,fundamentalism, drug use, etc) producing permanentrisks.Inthe Anglo-Saxon jurisdiction the use of proof ‘on the balance of probabilities’ has expanded. Hence, the criminalization of individual cases ‘at riskofcommitting future criminal actions’ is facilitated.37 Everywhere, late modern societies increase goods accompanied by risks. Factories produce pol- lution, opportunities for leisure and travel increase risks of airplane or train accidents, new technologies multiply the capacity of weapons andterrorists. There exist conceivable risks, capable of even destroyingthe earth. Research centres and experts work to calculate risky conditions38 and dangerousprofiles,instead of assessing injuries or property losses. This,inturn, generatesasystemenlarging the circle of population under penal control (“not everyriskresults in harm”) and produces new needs for timely preventionand regulation(surveillance, entrapment of suspects, etc.).

4.3 Zerotolerance

Thefamous legal export product of New York, ‘zero tolerance’, is an eloquent39 example of surpassing the traditional limits of the Rule of Law. The transfer of this model was very rapid: first it was adopted by other American States, then by Mex- ico, Brazil,and New Zealand, and currentlysomeEuropean countriesare importing it. Thereisanapparentcontradiction: late modern societies accept cultural differences, but at the sametimealong-term tendency of penal control establishes zero tolerance. As amatter of fact, the coexistence of different cultures oftenleads to bitter conflicts, which need to be resolved by something more effectivethan the late modern theories.40 Zero tolerance strategy, supported by concepts like ‘public nuisance’ and images such as ‘broken windows’,bringswithitanannulment of proportionality.In

______37 See Lea (2002: 166). 38 See Hudson (1996: 154-156). The way riskyconditions, and in general “Risk Soci- ety”,are influencing Penal Law is examined by C. Prittwitz (1993.81-163). 39 For Garland (2001: 102), zero tolerance is the term that best capturesthe new right's ideal. See also Zedner (2002: 347-348). 40 According to Young (1991: 390, “the late modern world celebrates diversity and dif- ferencewhich readilyabsorbs and sanitizes; what it cannot abide is difficult people and dangerousclasses,which it seeks to build the most elaboratedefences against,not just in termsofinsiders and outsiders, but throughout the population”. Targeting Majorities – New Orientations of PenalControl 35

French: ‘qui vole un oeuf, vole un boeuf’.41 This results in excessivepunishment, in involvement of incidents of every daylife (homelessness, walking outside the pedestrian crossing,orevendriving abicycle withoutabell)inrules prescribing heavy penaltiesand in further models, such as ‘three strikes and you are out’.42 The annulment of proportionality contributes to aconfirmation of the initial hypothesis: it shiftsthe majority of thepopulation, whocommit minor offences in everyday life, insidethe penal control target.

4.4 The priority of procedural over substantive rules

In anycase, the spearhead of the new globalisedpenalpolicy turns mainly towards the fieldofpolicing and procedural institutions.Unequivocally,inthe traditional dogma the substantive rules(defining the crimes and the respective penalties) should have systematic priority. However,accordingtothe new trends, there exist typesofcrimewhich appear almost as if they were createdtoserve criminal procedure.43 Someprovisions(e.g. definition of terrorism) are of very little use to the fillingoflacunas.Theyseemtoberedundant, since the respectiveacts are al- readypunishable on the basisoflegislation in force. These thoughts do not take into accountthe fact that the new substantive definitions (terrorism,organized crime) are merely required to describethe application field of policing andofnew investigation measures.Policing becomes an aim in itself, independent from substantive targetsand guarantees and disconnected from the needs of criminal procedure.

5. Police andprocedurallaws

The – inherent in liberal tradition – process values give ahigh priority to civil rights, in order to guarantee fair trialand acquittal of the innocent. The adversary actuarial values prioritise security, risking infringementofliberties and dispropor- tional or againstinnocence sentences. Thereformand adaptation of existing procedural laws to the abovesecond model occursintwo ways:the firstworks by embracingthe whole procedural system at once, like turningaswitch; the second is gradual and fragmentary. We examine both below.

______41 Oqueteau (2003: 9). 42 See Cavadino &Dignan(2002: 57). 43 Savona,Manna &Forte (2000: 74). 36 Nikos Paraskevopoulos

5.1 Change at once

In most penalregimes, heavyprocedural measures (like bail) are used against the accused, after charge. These powers can be extended at once with asingle change: by substituting the concept of the suspect in generalperson (‘usualsuspect’) forthe corresponding of the ‘suspect for the committing of aspecificcriminal act’. This way the circle of personsexposedisenlarged significantly. Even this one-step change of the concept -presupposition ‘suspect’, however, did not exhaust the tendency for the enlargement of the circle.AEuropeaninstru- ment, the Second Additional Protocol to theConventiononMutualAssistancein CriminalMatters of the EuropeanCouncil,44 introduced an even broader subject. According to Article 17 para 1, “Police officers of one of the Parties who, within the framework of acriminal investigation,are keepingunder observationintheir countryapersonwho is presumedtohave takenpartinacriminaloffencetowhich extradition mayapply, or aperson who it is strongly believed will leadtothe identification or location of the above-mentioned person, shall be authorized to continue …”. Obviously, ‘a person whoitisstrongly believed will lead to’suspects, is not a suspect him/herself. So, everybodycan be targeted by an observation, without pre- suppositions having to do with his own previous behaviour.Given the grave char- acterofsuchanobservation forcivil rights,thistotal opening of the circle conflicts with classic liberalprinciples. Theadaptationofthe newharderinvestigation measures (such as interception of communications,cross-bordersurveillance, covert investigations, entrapment, etc.) within the existing law systemscould be regular, underone condition: if judicial authorities or prosecutors decided and imposedthem. Thecompetenceand the termsofreferenceofjudicial authorities,however, already feel the pressure of police competence and powers.45 The late modern world has realized that while from alegal pointofviewthe prosecutionplays the most important role in the prelimi- nary proceedings, in reality the police are more reactive and effective.46 Therefore, tensionsofjudicial and police powersinthe future are not unexpected. In the frameofthe European Union,for example, the EuropolConvention as- signs to the European Police Office considerableprosecutionand interrogation powers. These powers, concerning ‘usual suspects’, potentially clash with the rights of many citizens. Nevertheless, anumber of privileges and immunities, limit- ing national judicial control, areraising remarkable issues.

______44 For this, as well as for the corresponding instrumentofthe European Union (29May 2000), see Vermeulen (2000: 182). 45 This pressure is remarkable in the frame of the EuropeanUnion: Flore(2000: 96). 46 See Selih(2000: 101). Targeting Majorities – New Orientations of PenalControl 37

Policeservices have acentral position in the penal controlsystem of most countries, especially afterthe terrorist attacks. Policeofficers are the main sources of inspiration for the media, creating akindofpartnership and influencing public opinion. This influenceisreciprocal,aspublicopinion in turn reacts it exerts ama- jorimpact on criminal justicepolicy. Undoubtedly,police officers inspire also legislative changes.47 Lawyers now do not have the monopoly of influence towards legislators, as police institutes conceptualise newissuesand reform demands.48 In Europe, an open question remains whether there will be aEuropean PublicProse- cutorsOffice.49 In acomparative perspective, it is observedthat there is atendency to limitthe prosecutor'sfunctions.50 It is an overstatementtosay that the European Union and the Council of Europe are restructuring the police of the future, focusingoninternational activities and leadingahomogenizingand convergingprocess, which involves the police, the judiciary and penitentiary services. This convergence is apparent enough in thecaseofEurojust, abodyestablished in ordertofacilitate the judicialcooperation between MemberStates of the Euro- pean Union. Eurojust is linkedwithnational judicialauthorities, but also possesses its own investigation apparatus. Thisambitious51 authority has discretionary pow- erswithaserious impact on humanrights; among its members, however,there are notonlyjudgesorprosecutors, butalsopoliceofficers.52 In the larger frameand landscape of the Council of Europe, therelevant cooperation issues are more complicated,requiring flexible solutions. In somecountriesof Centraland Eastern Europeprosecutionispartofthe executive,53 and police authorities possesssignificant powers until the case is introduced to the court. In most countries, however, this competence belongs to the prosecutor or to the judicial authorities.So, the need for cooperation and communicationgenerateacommon conceptofactingauthority in criminal matters. Article 6ofthe Second Additional Protocol to the European ConventiononMutualAssistanceinCriminal Matters54 replaced Article 24 of the Convention, introducingthe following provisions:

______47 Nevertheless, judgesand scholars do not payadequate attention to the institutional structure of the police (Sklasky, 2005: 1750) andethnographers do not payrequisite attention to theorganisational transformationofthe police(Marks,2004: 1). 48 “The policehavenow become leading agents of legislativechange”:Marcus(2003:46). 49 Sceptic v. Gerven (2000: 301). 50 See Selih(2000: 106). 51 See Brammertz(2000: 114). 52 See the criticalremarks of Kaiafa -Gbandhi (2002: 13). 53 The Russian institution of the public prosecutor, ‘Procuratura’, has had adifferent beginning anddevelopment than thecorresponding institution in other European States: Selih (2000:99). 54 SignedinStrasbourg, 8.11.2001. 38 Nikos Paraskevopoulos

“Any State shall at thetimeofsignature or when depositingits instrument of ratification, acceptance,approval or accession,bymeans of adeclarationaddressed to theSecretary Generalofthe CouncilofEurope, define what authorities it will, for the purpose of the Convention,deemjudicial authorities.Itsubsequently may, at anytimeand in the samemanner, changethe termsofits declaration”. Could aEuropean country declare apolice authority as deemed judicial authority forthe purposeofMutualAssistanceinCriminalMatters?Articles 5para 3, 5para 4(habeas corpus)and 6ofthe European Convention on HumanRights set limits which could raise important issues.

5.2 Specificchanges

Important specific provisions,serving theinternational assistance in serious criminal matters, introduce new measures,viewing major population targets, after judicial authorization or ordered by administrative or secretservices. The cross- border surveillance of persons whocould lead to the identification or location of suspects55 and the covert investigation (by officers acting undercovertorfalse identify)56 facilitate the broadening of thepenal control towardseverybody. Surveillancebythe policeorother agencies andinterception of communications, open or covert, generalized in public places or particularand individualized, is the mostwidespreadcontrolmeasure inspecting, through regularuse or throughabuse, everybody. The first formally acknowledged formsofsurveillance presupposed judicial(in the frameofcriminal procedure) or administrativeauthorization.57 The realityand the fear of terrorism account for the fact that institutionsand jurisdic- tionsalready accept or tolerate an unrestraineddevelopment of this measure. Certainly, thedynamic of surveillance is multiplied – and partially beyond any control – thanks to newtechnologies. In additiontothe use of cameras, the reten- tion and disclosure of body samples and theDNA investigation areofferingvisibil- ity and sometimes proof against anybody. From the procedural and the covert sur- veillancetothe contemporary closed-circuit or generalized systems, the opening of the scope of inspection seemstobeunlimited. European andnationalinstruments establish, of course, astrict regimeofproce- duresand limits for the protection of personal data selectedbysurveillance.58 Nev- ertheless,under the pressure of the essential needs to tackle terrorism,this regime ______55 Article 17.1 of the SecondAdditionalProtocoltothe Convention on Mutual Assis- tanceinCriminal Matters of the EuropeanUnion (see above). 56 Article 19.1 of the same(see n. 55) instrument. 57 The standardsand guarantees of surveillance havebeendevelopedoveralongseries of cases before the European Court of HumanRights: Whitaker,inStarmer, Strange & Whitaker (2001: 35-42). 58 See Whitaker in: Starmer, Strange &Whitaker, (2001: 80-94). Targeting Majorities – New Orientations of PenalControl 39 is weakening.59 Three indications of this weakening are noteworthy. First, the already mentioned enlargement of the concept of ‘suspect’, including nowevery- body. Second, the establishment of common offices for the supervision of both the freedom of information and thedataprotectionlegislation.60 Third, the practically uncontrollable capacity of the technical infrastructureused for electronic surveillance. The use of ‘stop and search’ powershas increasedduringthe lastdecades. These powers (other than detention or arrest in order to bring aperson before acompetent court) are exertedagainstany person, pedestrian or in avehicle, for the verification of their identity or whenthere are grounds for suspicion. TheCommission of the EuropeanCourt of Human Rightsconsideredthe policepowers to orderthe appli- cant’s detention pending an examination.61 The Commission found that there are circumstances of apressingnature, which justifydetention forthe submission to a security check. The exercise of these powers can vary widelyinpracticeaccordingtoraceor ethnicity. Thenew, broader, moral economyofthe police reinforces anew image of deviant including larger partsofpopulation(on thebasis of age, sex, ethnicity, bad reputation of the neighbourhood, denialofcooperation with the police), where offending is aroutine.62 Even worse, reasonable suspicioncould affect anyone in major police operations(according to theGreek lay name, ‘sweep operations’), where ‘zerotolerance’policy is applied. Community policing operations, very popularinsomecities, expand the field within which the relevant abuses occur.

6. Epilogue: What about democracy?

Inequalities, the declineofthe welfare state andsocial exclusion are the challenging conditions of late modernity. Theseconditionsreasonably lead to higher rates of crime, as astandard background of everyday life. During the unfolding of globalisation, majorities of people are targeted: terrorist attacks victimize potentially everybody, collective insecurity andfearofcrime grow andpenal systemsare gradually oriented to inspect and control everybody: not only the guilty, or thein- dividualized suspects of criminal acts, or outsiders.The identity both of victims andofcriminals is blurred,embracing unknownpeople: theaverage citizens.

______59 See Guideline V, in Guidelines on Human Rights and the Fight against Terrorism (CouncilofEurope, 11 July2002). 60 For an example, where asingleofficehas oversightofboththe above fields, see Whitaker, in: Starmer, Strange &Whitaker (2001: 93-94). 61 McVeigh, O' Neilland Evansv.UK(1981). 62 See Downes &Morgan (2002: 314). 40 Nikos Paraskevopoulos

Thereare substantiveand procedural lawsystems,both international and national, readytoaccept these tendencies. Examples of successful influence include: the decline of the Certainty of Law as afundamentalprincipleofcriminal law; the concernofcriminallegislators rather forrisks than foractswhich produceharm; ‘zero tolerance’ policies; aparadoxical priority of proceduralobjectivesand laws over substantive ones; the expansion of the field of policeand administration in comparison to the fieldofcriminal justice; the enlargement of the conceptofthe suspect;the development and normalization of surveillance systems; the various ‘stopand arrest’ operations. This obscure perspectiveconcerns (also) democracy, notonlyasapolitical, but alsoasasocialstructure. Unsurprisingly, the discussion on democracy, law enforcement and policing is widespread today. Irrespectiveofspecific conceptualisations of democracy, emphasisisgiven to the economic development, and in practice politicians are accountable to market forces (Evans, 2001: 93). (Targeted) majorities lose power,electoralinstitutions lose sense and instrumentality. This declineofpolitical and social reasoning will probablycontribute to violentten- sions. Undoubtedly, the gloomy perspective is not theonly one. Common conditions and interests for majorities for example, could reanimate democratic figures. Well establishedsocialstructures, movements, andeventhe potentialofexistinginstitu- tionscontinue to provide alternatives and to hold promise for the future. Targeting Majorities – New Orientations of PenalControl 41

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Tribal Images, Fashionable Deviance, and Cultural Distinction Notes on Criminological Change

Ronnie Lippens

1. Introduction This contribution basicallyattempts to answer thequestion: ‘Where does newness, or change, in criminologicaltheoryand research come from?’.The paper originates in afairly basic desireofits author to provide students with afairly basic insight into the matter at hand, i.e. the emergenceand developmentofscientific ‘newness’. Although the reader will find here references to someofthe well-known literatures that mayshed alightonthe what of scientific, or theoretical newness, the contributionathandshall approach theproblem from aslightlydifferent angle. Here we are not so much interested in the whatofscientific or theoreticalnewness as in thehow andwhy. That scientific or theoreticalnewness is amatter of structured paradigmatic struggles in scientific communities (Kuhn,1970), or, in more subtle versions, of ‘naturally’, more fluidly changing interpretations in interpretive communities(Fish, 1989), is somethingwewon’t spend anyenergy refuting here. There is no reason to. We will,onthe contrary,focus on how exactly scientific or theoretical newness (‘change’) emerges, and how it develops. We will also delvea little deeper into the why question. Let us briefly state thegistofour argument here.Wewill argue thatscientific or theoretical newness, or change – and we’ll focus particularly on criminological newness or change – is,first andforemost, all about image. Drawing things together (please keep this phraseinmind) from anthropology, from actor-networktheory, andfromart history and art criticism,weshall argue, in what follows, that scientific or theoretical newnesscan be considered as the result of atribalprocess of assemblage and fashionable circulation of images, indeed:ofimage.This process of assemblage and circulation, we will argue, is at the very sametimealso aprocessofformation of self and community. The formation of self and of communitytakes placeinand through the very assemblage and circulation of image(s). The boundarybetween self and community,then, we hope to be able to demonstrate, is this processofassemblage and circulation, and, as such,thatis, becauseitis aprocess of assemblage and circulation, this boundary is shot throughwith the potential for ‘change’and ‘newness’.Inother words, change 46 Ronnie Lippens and newnessinscience or theory originateinthe process in and through which the scientific or theoretical ‘self’and thescientific or theoretical ‘community’ – any particular‘self’ and any particular‘community’ – are constituted. But we are running aheadofourselveshere. Let us approach this issue fromthree differentangles. Let me,inother words, assemblethree images.I’llcirculatethem, andtheir assemblage, in the next three sections. We’ll then hopefully be able to pull togetherthe threads – to draw thesethingstogether (thisphrase again!) – and see where it takes our (yours and mine) scientific or theoretical ‘self’ and ‘community’.

2. FASHION: The Abbot and ‘Noble Simplicity’ Abbot Suger was apeculiarman.Born in 1081 and appointed Abbot of St. Denis (the abbeyofSt. Denis was just north of Paris),AbbotSugerhad apenchant for gold, jewels, and all thingsshiny and glittering. Light too, lots of it, was high on the abbot’swish list. Now whether or not the abbot’s tastefor jewelry and suchlike things to someextent expressed something of his essential self,orhis senseofcommunity,orwhether indeed his taste is only asign of his becoming adifferent self,oramember of adifferentcommu- nity, is of no great importhere. We do know that Suger was born to avery humblefam- ily and ultimately ended up in those diplomatic circles that were closest to the French king himself. So yes, one might argue that theabbot’s taste forgoldand silver andgem- stones simply expressed somethingofanagging desire to transcend embarrassingly humble origins. Or, on theother hand, it might also have indicatedsomething of the aspi- rations of the emerging, becoming parvenu. But that would not lead us very far. The issue is not so much as to whether the abbot’s taste, or anyone’s taste, for that matter, expresses some essence or betrayssomeprocess of becomingorother. One could say that things humanthat express themselves as essencedosothrough aspiration,thatis, theywillsomehow betray an aspiration to do so, i.e. to expressthemselves as essence. Andthe othersideofthiscoinisequally arguable, namely, that for anythingtobecome, to aspire towards difference, change,why not‘newness’, something of this ‘newness’ must alreadybepresent – let’s not use theword‘essence’ to denote it – to fuel the proc- essofbecoming newness. So we won’t be wasting anymore time on this issue of expressive becomingand later, it will becomemuch more clearwhy doing so might indeed be awaste of time.Let us go back to abbot Suger instead. We do know that the abbot was fond of glitter and shiny valuables.Heactually made the effort, near the end of his life, to meticulously record, describe, and account for all the valuables he managed to procure or collect for the benefit of the abbey. The phrase ‘for the benefit of the abbey’ is not coincidental here.Suger himself always adoptedafairlyhumble, or,ifnot, acertain temperate lifestyle. No luxury forSuger’sown person,then.Moderation, temperance, and avery balanced sense of diplomacy, were his. In his account of the abbey’s glitteringriches, the abbotmadesure he listed and expandedonthe very many architectural changes which he hadmadetothe buildings of the abbey, the church,and the estate. Huge Tribal Images,Fashionable Deviance, andCultural Distinction 47 windows, in variousshapes, that allowed the daylighttoflood inside the church, bathing the many shiny treasures inside in asea of bright sparkle,for example, were introduced. And wider, more spacious halls and rooms. We know of all these treasuresand architectural innovationsbecausethe abbot made sure they were re- cordedand written down. One of theforemosttwentieth-century scholars of art history, ErwinPanofsky, cameacross the abbot’s inventory, edited, translated, and annotated it. The informationfor this section, by the way, comes from areprint, in Meaning in the Visual Arts (1955),ofPanofsky’s‘Introduction’ to Suger’sinven- tory. Little did Abbot Suger knowthat all the changes he had made to his church andhis estate would,muchlater, lead art historians such as Panofsky to classify the abbeyofSt. Denis, just northofParis,asthe firstmedieval gothic building. Suger himself seemstohave been unaware of the ‘newness’ which he expressed/became, and which the ecclesiastical community of monks embodied and lived out within the walls of the estate. Buthedid know that his project, if ever it wasaconsciously conceived and planned project, to some considerable extent,went against the grain of the day. For instance, he often uses theword ‘modern’todescribe hisarchitec- tural vision. But there is more. The dominantatmosphere in religious communities, at thetime, was one that was proscribed by Bernard, laterSaint Bernard of Clair- vaux.The atmosphere of religious worship, Panofskytells us, was one of obliga- tory austerity and asceticism,ofdark, moist cloisters and grey shadows on bleak walls. Suger, on many occasions, had to muster all hisdiplomatic skills – of which he had many, perhaps not by mere accident – in order to be able to proceed with theongoing production, indeed assemblage, of deviantknowledge which he, and hismonks at St. Denis, were circulating. Suger’s was akindofknowledge that, at leasttosome extent, expressed abecomingself as well as abecomingcommunity, or, in other words, becameanexpressive self and an expressive community of change and newness. And yes, here are the two words again: deviant knowledge. That the abbot’s tastefor brightness and for glitterygold did tend to be perceived by his fellow clerics – BernardofClairvaux amongst them – as deviant, should perhapscomeasnot too big asurprise, andindeed the importanceofthe very fact of theabbot’s effort to record and, above all, justifyhis deviancy in along, annotated inventory,might perhaps go without saying.But whydowecall thistaste, here,inthiscontribution, whydowecall the abbot’s desire knowledge?The Abbot would probably have agreed to consider knowledge as adeeply sensual matter, as a matter of the senses, of emotion and of desire. Panofsky, who by the way is not directly interested in theissuesthatconcern us here, tells us how Suger came across translations of the neo-Platonist writings of Dionysius the Areopagite, one of the church fathers who, it was assumed,was therealSt. Denis. In there he finds amost appropriate justification for his ‘modern’ desires:the neo-Platonist doctrine of divine light. “But we profess”, he writes in his inventory, “that we must do hom- age also through the outward ornaments of sacred vessels.(...) Foritbehoovesus most becominglytoserve our Saviour in allthings in auniversalway”, in other words, in and through the circulation (andadmiration) of materials that embody a 48 Ronnie Lippens knowledge that knows that universal, divine Truth is in God(“thesuperessential Lightee”) and Christ (the “first radiance”), and that we,devout mortals, must at- tempttopartake in that divine light, in Suger’s words, to get “transported from this inferior to that higher world in an anagogical manner”, in and through “thedelight in the beauty of the houseofGod”(Panofsky,1955: 123-9).And by “thehouse of God” Suger meant something quite literal andtangible. So, what have we got here. We have amonk, of very humble origins, andperhaps alittle “vain”(Panofsky surmises),who, while in high places, assembles very partial bits and pieces of found,indeed stumbled upon fragments of neo-Platonisttheology, with gold, gem- stones,and flows of sparkling light, as well as with particular desires, tastes, and diplomatic sensitivities, andwho then circulates this assemblage, thus expressing/becomingsomething that might be called newness, newnessofself, and newness of community.Whether this process of assemblageand circulation of new, deviantknowledgeresultedfrom Suger’s biographyorfromcontext,orfromboth, is notthe issue here.The issueistorecognise how, in particularcontexts involving particularbiographies,‘new’ knowledge gets to be assembled from available bits and pieces, embodied, and circulated, and how in and through this very process of assemblage and circulation, self (e.g. Suger’s sensuous and therefore contradictory neo-Platonist self) and community (e.g.anemergingcommunity of sensuous, gothic worship) emerge, better still: are constituted, or, as we have argued, are simultaneously expressedand becoming. Self andcommunity arenot eternal. Theknowledge assemblages and circula- tionsinand throughwhich they are constituted aren’t either. For reasonsthat are yettobeexploredinsubsequentsections they are bound to fragment, disintegrate even, leavingbits and pieces to scatter around, possibly to be re-usedinother bouts of knowledge assemblage and circulation. It is interesting to note,with Ernst Gombrich (1962), how Suger’s gothic knowledge, and how gothic selves and communities, gradually gaveway to other,more fashionable formsofknowledge, self, and community. In his classic essay on ‘Visual Metaphors of Value in Art’ (1962: 12-29),Gombrichtells us how, at thecradleofthe Renaissance, in the writingsof Leone Battista Alberti, the “mere surface attractions of sparkle” gaveway to an emerging knowledge thatknows vulgar abundance from “noble simplicity”,the fake “sprinkling of gold” from “dignifiedpurity”, superficiality from “sincerity”, excess from “moral restraint”, irrational disorderfromrational order, in short low from high (1962: 17ff.).Soon this knowledge,newly assembled from availablebits and pieces,and circulating in andbetween emerging,‘deviant’selvesand communities, would end up on canvasses, in architecture, in theological and philosophical tracts,and in theblack-and-white,thatis: strictand restrained and ‘sincere’dress code of anewly emerging cultural elite whose perspective (indeed!) on life, whose knowledge of lifeexpressed/becameacertain ‘newness’. Forawhile. But that is anotherstory (see e.g. in Lippens,2004).Let us nowgotothe tribes of PapuaNew Guinea. Tribal Images,Fashionable Deviance, andCultural Distinction 49

3. TRIBE: In Papua New Guinea In herbook, PartialConnections (1991),Marilyn Strathern, one of themost prominentrepresentativesofwhat is knownasactor-network theory, describes and analyseshow tribesmen in thejungle andfoothills of PapuaNew Guinea, when applying or adjusting adornments, used as extensions of the body, do anumber of things simultaneously. They would, in assembling and then applying extensions, negotiate tribal custom,or, using our phraseology here,tribal knowledge. They would, in applying theseextensions(negotiated embodiments of tribal knowledge), simultaneously assemble their own selves. In other words, tribesmen,when applying extensions, and whencirculating themwhilewalking about the village, or, in yetother words, whenevoking andmobilisingand gaugingand negotiating tribal knowledge during suchparades, tribesmen constitute both self and tribal commu- nityatthe same time.The ramifications of this insight cannotbeunderestimated: self and tribal communityemerge in and through the assemblage and circulation of (embodied) knowledge; the assemblage and circulation of tribal knowledge is in turn amatterofself and community, amatter, that is, of gauging and negotiating the boundary between self and community. As this hasbeenelaborateduponelse- where (Lippens, 2003 and 2005), as well as in the above section, let us now focus on one issue in particular. Just likethe embodiments of tribal knowledge,i.e.the extensions thatget assembledand circulated, their expressiveproducts or becoming source, that is: self and community, too, are always, and inevitablyso, amatter of partialconnections.This means that knowledge, self, and community (we feel we have now reachedthe stagewherethesethree wordscan be uttered in one breath) are always partial, ultimately unstable,and inevitably shot throughwiththe poten- tialfor change,for ‘newness’tooccur. Let us unpack this idea to its very basics. Picture one of our tribesmen’s adornments. It’s made out of feathers, pieces of carvedwood, andstring. It is an assemblage. It’s going to be used as an extension. When that happens,itwill be part of another assemblage, one that expresses/becomes self and community. But have anotherlookatthistribesman’s assemblage. It has been fashioned, not unlike Suger’s sparklingcrucifixesand other adornments, not unlike Alberti’s ‘sincere’ architecture. It has been fashioned out of a number of bits and pieces, outoffragments found or stumbled upon. It is therefore, as any assemblage wouldbe, hybrid,inevitably hybrid. But there’s more.Like any other assemblage,itisfullofempty spaces, let’s call them ‘holes’.Indeed, for any assemblage to exist at all,theremust be emptiness – holes – aroundwhich the assemblage is ... assembled. In short, without hybridity andwithout emptiness, there can be no assemblage. Assemblages, in other words,bytheirverynature, areassemblages of hybrid fragments and holes. The holesare absolutelynecessary. In a way, it’s theholes that keep assemblages apart/together. An assemblage that has no holes in it, is either no assemblage, or an impossible one,i.e.one thatsomehow would have managed to assemble all and everything. So let us recapitulate, using Strathern’s words: assemblages,bytheir very nature, areassemblages of partially 50 Ronnie Lippens connected fragments,connected as they are in hybrid assemblagesaroundholes thatkeepthemapart/together.Now we have seenthat assemblages, fashionedthus, tend to circulate – as extensions – and, in thisveryprocess,constitute self and community. But thatmeans thatthe outcomes,and in turn again the sourceofcir- culating assemblages, i.e. self andcommunity, will themselves,out of necessity, be hybrid assemblages of fragments and holes. Theself is, then, an assemblage of partially connected fragments. Let us illustrate.Here are two very differently assembled knowing selves:1)acritical criminologist, X, is reading Jacques Derrida’s Positions in 1975;2)the very same critical criminologist, X, is reading the very same book, Positions in 2005.These areverydifferent assemblages. The self as such is partially connected to thecommunity, or better, to thecommunities it circu- latesin, andthe latter,the communities, areinturnhybridassemblagesofpartially connectedselves andthe holes in-between them that keep them apart/together. Now let us substitute ‘knowledge’ for‘extension’. Knowledge, that which circulates as extensionsin, throughand between selves and communities, or again, that which constitutes, indeed fashions self and community, is inevitably hybrid,partiallyconnected, fragmentary, and shot through with holes that keep it apart/together. It may, for awhile, constitute selves and communities. But only forawhile. Its connections, that is, its internal connections(it is after all an assembled extension), as well as the connections of self andcommunitywhich it constitutes during its circulations, are always partial, and inevitablyso. Anditisthere, in thisvery ‘partiality’, in the hybridityofknowledge and its outcomes, in the ‘empty’ holes thatkeepitaswell as its outcomesapart/together, that the ever-presentpotential for change, indeed fornewness, resides. Letusnow try and answer anumber of questions. Where does scientific or theoretical change, or newness, comefrom,one might ask? Theanswer might sound something like this: it comes from the hybridity and the holes knowledge assemblages are made of. The more hybridity, the higher the odds that particular materials, when happened upon, maysuddenly ‘stick’ and cause somedisturbance or other, and that, in turn, maylead to change, or newness. The more ‘holes’, the greater the space forchange, or newness, comingfrom the ‘outside’, to slip within. Change,and newness, are,aspotentiality, alreadyembed- ded in the hybridity and the holes whichknowledge extensions consist of. They lurk in thehybridity and the ‘emptiness’ofknowers who circulateknowledge extensions, andwho, on their wanderings through knowledge communities,or, more importantly, across knowledge communities, stumble or happen upon bits and pie- cesofother extensionswhich they maydecide, or not, as the case maybe, to adopt, andthusintroduce change,and possibly newness. Indeed, the circulating knower may, at any point, decide to either ignore any disturbance causedbycirculating knowledge extensions (or fragments thereof) or use it to adjust the currentknowing self,possibly expressing/becomingnewness. We will return to this issue later. Suf- fice to say for now that the potential for change and newness – deviance,ifyou wish – lays inexorablyinthe porosity that marks the twin results of knowledge Tribal Images,Fashionable Deviance, andCultural Distinction 51 assemblageand circulation, i.e. the knowing self and knowledge community. Change and newnessinscience and theory therefore is that which needs no explaining.It’swhatshouldbeexpected. Theabsence of change andnewness in and through knowledgeassemblage and circulation is what one should be wondering about. When,one might ask, do knowing selves and their knowledge extensions stop circulating(and thus preventknowers from ‘stumbling upon’ disturbing knowledge extensions)? Or, even if they do keep circulating,when, and whywould knowersprefertoignore anydisturbance? Thatisthe more important question. But before we deal with that issue, let us ask ourselves one more question. If change in science and theory is amatter of knowledgeassemblages, or at least bits and pieces of them,circulating and crossing each other, then scientific or theoretical change, possibly newness, is something that takes place.Ittherefore must be particular, i.e. it must be the particular resultofparticular knowing selves who, adorned with particular knowledge extensions,circulate in particular places at particular times,only to stumbleacrossaparticularset of knowledge assemblagesthat ‘happen’ to circulate in thoseparticularplaces and at those particular moments in time. If all these conditionsare met, then it will be the particularitiesofthe knowingself, of the knowledgecommunities involved,and of theknowledge assemblages that circulate, that, together with the particularities of the timeand place of the‘disturbance’, thatwilldetermine whether or notaparticular scientific or theoretical change, possibly evennewness, occurs. It should be clearthat ultimately it is impossible to predictwhether or notparticulardisturbanceswill end up in scientific or theoretical change. Not just becausethe particularities of selves,communities, extensions, and times and placesare always too vast to even begin to contemplate. But also because, indeed,any suchprediction itself can be no more than aparticularexten- sion/assemblage, fashioned by aknowing self who,having circulated in or acrossa particularseriesofparticular knowledge communities, will have comeacross,in the course of aparticular life-trajectory, only alimited number of knowledge assemblages. Any such prediction,inother words, canbenomorethanthe result of a particular assemblage of particular hybridities and holes. However,having saidthat, one cansay something about all this and indeed many ideas and concepts have been floated in the past few decades to denote the occur- renceofscientificortheoretical change. We’ve touched upon afew of those in our introduction and this paper is not theplace to expand on them. Let us just note that there is something tribal about scientific or theoretical change.Now thisidea – ‘scientificortheoretical change is like tribalchange, indeed is tribal change’ – is in itself not all that new (see e.g. Becher, 1989). And Bruno Latour, perhaps the foremost of actor-network theorists,oncefamously exclaimedthat, when it comes to science and theory, and modernityassuch, ‘WeHaveNever Been Modern!’ (La- tour, 1993). The production of scientific knowledge,saysLatour(whooriginally camefrom anthropology), is stillaverytribal affair of drawingthingstogether (at last! the phraseisLatour’s:Latour, 1990), in and by tribalgroupsofscientists to- 52 Ronnie Lippens gether,inthe hope that this process of drawing things together and then circulating thosethingsmight draw the like-minded together,onthe road to victory. Strath- ern’s tribesmen,Panofsky’s Abbot Suger, Gombrich’s emerging Renaissance elite, Latour’s scientists ... ‘wehavenever been modern’ when it comestothe process of knowledge assemblage and circulation,certainlynot in an age such as ourswhich Michel Maffesoli recently (1996) calledaneo-tribal age. Latour’s notion of drawing things together,justlikeStrathern’s notion of extension,has also something of thevisual aboutit. It’s not just Suger’s knowledge or the budding Renaissance man’s, or aPapuan tribesman’s, that was or is all aboutthe tasteofimage.Inthe final analysis, it seems to be images that circulate as knowledge assemblages, and that,asextensions,inthatveryprocess of circulation, constitute knowing selves and knowledgecommunities who in turn will further assemble and circulate image- extensions. In other words, image seemstobecrucially importantinthe assemblage and circulation of knowledge – literally as well as figuratively.

4. IMAGE:Drawing Criminological Things Together Distinctively Theword‘image’, in theprevious sentence, can be read quite literally. That which circulatesasknowledge extensions, says Latour (1990),can be called ‘immutable mobiles’. Those are often two-dimensional and very visual hybrids such as textbooks, articles, images, graphs, and so on, drawn together from ambition, ideas, motivation, stringsofwords, desire, experience, insight,ink, paper, andso on. In Papuan jungles they tend to be extensions that are fashioned out of feathers andforestmaterials. These hybrids are ‘immutable’ in the sensethattheyseemto expressacertain coherence and stability, but they are highly mobile in the sense that they tend to circulatethrough networks of actors for other actors to ‘happen upon’ and, possibly, to pick up. Latour’s immutable mobiles are drawn together (there are certainlyconnotations herewithnotionssuchasforce). They are then often used, in aprocess of circulation, to mobiliseother actors,i.e. to start drawing things together,thatis, to actcollectively,for example, to maintain or expand an existing knowledge community, or to emerge,inall deviancy, as aseparate knowledge community. Immutablemobiles are never completely immutable though. Once assembled, once drawntogether,theywillofcoursecontinue to circulateas such throughoutthe actor-network.Simultaneously however,cracks will appear, and will start to cut across the immutable mobile,only to scatter its fragmentsac- ross the actor-network, for others to visiblynotice, and to make use of in further bouts of drawingthingstogether. But the word‘image’ in the lastsentence of theprevious section can also be read figuratively.Fashioningknowledge assemblages or noticing them,perhaps even adopt themwhen stumbling upon them,isalso amatter of image. Desire of, or desire for communityisalways involved in the processofknowledge assemblage and Tribal Images,Fashionable Deviance, andCultural Distinction 53 circulation. Imagine the critical criminologist who,after his initialrejection of Der- rida’s writings and of ‘deconstruction’ in the1970s and1980s,his enthusiasm about it duringthe 1990s, andhis mixed feelings in 2005, might recall how ameasure of image wasinvolved in this processoffashioning fashionable knowledge assemblages and drawingtogether knowledge communities. Suppose he has now reached the following cascade of images when he considers himself to be part of a knowledge community, i.e. an ‘us who know abit about Derrida, but have never beenabletoditch allother assemblages stumbled upon, such as Bloch, Levinas, Foucault, Deleuze, and many more, but who firmly realise that we’vegotten ourselves into apretty fine mess, but who have equally realised that this is basically OK,that, in otherwords, thismess is both proof and promiseoftheoretical fruit- fulness (doesn’t Gayatri Spivak come to mind here?), albeit that this notion of ‘fru- itfulness’ is ahighlyproblematicone, that, nowwe’ve cometothink of it, can also be claimed by the strict Derridians who continue to make assemblages and extensions frombitsand pieces of Derrida’s writings... yes, that’s apretty accurate picture of us,those who areinthe know.Then, there’s the others,ofcourse, those who haven’t graspedany of this; them,the rest’.Adoptingknowledge,maintaining knowledge communities, or drawing together deviant new ones, to aconsiderable extent, is also about drawing together image, sensuous image. The world of knowl- edgeisthe world of tribesmen, gothic abbots, and Renaissance men. Anthropolo- gistssuch as Pierre Bourdieu (1984)have oftenanalysedthe desirethatseems to be so conspicuous,particularlyinthe ‘cultured’elites, indeed the ‘knowledge class’ as they aresometimes called in asomewhat different, more militantvein, to culturally distinguishthemselvesfromothersthrough themanifestation of cultural taste. It’s not just‘cultural’ taste though.Thatshould perhaps comeasnosurprise to criminologists whoare well aware of the extent to which groups often emerge in and through processes of cultural, moral, intellectual, or social subjectification, processes, thatis, whereimagesofcultural, moral, intellectual, and social inferiority and superiority are assembled, circulated, adopted,and,asthe case maybe, re- jected. They are very often prepared to mount, as Joseph Gusfield (1986) has been at pains to demonstrate, symbolic crusades in ordertomarkout others and distinguish themselves. In the words of Tony Kearon(2005),the bourgeoishas never been trulyliberal but, quiteonthe contrary,always dependent on the desire to distinguish.There is no reason to assume that the image of distinction and the distinction of image would be any less important when it comes to the assemblage and circulation of knowledge, and the establishment, or, as the case maybe, the contes- tationofknowledge selves and knowledge communities. Now,back to criminology. Take gang life. Let us note how the boundary between ‘in’and ‘out’ is arecurringtheme of ganglife, where so much of gang members’ energy goes towards defining andmaintaining correct or stable knowledge of signs,practices, methods, threats, defences,and, more generally, behaviours. Or consider the example of a community of crackdealers in El Barrio (Bourgois, 54 Ronnie Lippens

1995). How much of Primo’s, Candy’s,and Caesar’s (Philippe Bourgois’s protagonists) effortsgoes into establishing correct or stable knowledgeoflifeinEast Harlem, into acquiring stable and reliableknowledge about social codes (dress co- desnot in theleast)for them to be able to venture into the world of regular employment,orintoattemptstoproduce correct knowledge about the fashionably deviant dynamics of the retail crack trade. Or let us takethe exampleofaboard of directors (e.g. ENRON’s) where good knowledge about what constitutes ‘good’ (i.e. acceptable,orinasense, internally legitimate) accounts is paramount in any decision which the board maytake. In asituation like this one (the board room meeting), one has to be either very foolish or very brave(depending on your viewpoint) to produce alternative ‘good’ accounts. Or imagine aprofessional group of mediators who spend alot of timeacquiring stable knowledge about criminal aeti- ology, about ‘restorative justice’ and about interpersonal dynamicsand standardsof professional practice. Imagine how they will tend to demonstrate their‘good’ knowledge of these issues, circulating it amongst their colleaguesthrough talk and visual display,hoping perhaps (whether consciouslyornot)tobeaccepted by their fellowmediators as ‘one of us’, or, as the case maybe, hoping to be recognised as an ‘innovator’instead,a‘risk taker’, or, why not, simply as an ‘outsider’. Now pictureyourselfacriminology department where faculty as well as students will tend to be eagertoacquire good andstableknowledge aboutgangs andgangmem- bers, about crack dealers in El Barrio,about ENRON’s board room dynamics, about restorative justice, aboutmediators and their professionalstandards, about whoorwhatcounts as ‘in’ andwho or what countsas‘out’, and so on. Like the gang member, the crack dealer, the board member, the mediator, or the tribesman, the criminologyfaculty member will venture into the forest of knowledge assemblages that are already available in libraries,inscholarly publications, in the biog- raphiesofgangmembersand board members, in the thoughts of mediators who have triedtoexpress them duringinterviews, in whatcan be observedin neighbourhoods or read in the press.The faculty member will then select anumber of splinters from these assemblages in order to produce his or her fashionably deviant assemblage. This assemblage in turn will end up circulating amongst the criminologist’sfellow facultymembers, or amongstcriminologists more generally, where, in variousplaces, processes of assessment and negotiation of somesort may then begin in order to ascertain whether, and to what extent, the criminologist is ‘one of us’ or an ‘innovator’.Ultimately this particularassemblage will join the flood of knowledge assemblages which the world‘outthere’ismadeof. This criminologist’sassemblage will be particular;itwill be partial. Itsarticulation will depend notjustonthe few connections he or shehas managedtomakebetween a limited number of materials, butalsoonthe vastand sheer limitless number of pos- siblealternativeconnections which he or she, for adizzying number of reasons,has been unable to make. And that, i.e. this dizzying number of alternatives,iswhere the promise of change and newness lurks. Countlessknowledge extensions,marks of distinction, images of desire, areresting there,aspotentiality, waiting to getas- Tribal Images,Fashionable Deviance, andCultural Distinction 55 sembled and circulated. The raw materialsfor an almostunlimited number of potential tribal knowledge selves and knowledge communities arestored there, waiting to emerge.

5. Conclusion Thiscontributionset out to say something aboutthe origins of scientific andthe- oretical change. It has hopefully becomeclear that here we consider scientific or theoretical newness as the result of atribalprocess of assemblage andfashionable circulationofimages, indeed: of image.This process of assemblage and circulation, as we have argued, is at the very sametimealso aprocessofformation of self and community. Now, allow us to be alittle self-reflexive here. As such,this contribution cannot be anything else but atriballyfashionedknowledge extension whichexpresses/becomes adesiring knowing self and aditto knowledge community. Its destiny is unsure. It’ll join thecountless other extensions and theirfrag- mented bits and pieces that are already circulating throughout the actor-network. What tribesmanwill stumble upon it, or upon fragments of it? And what will hap- penifthisstumbling occurs?Indeed, as we haveargued,any suchprediction itself canbenomorethanaparticularextension/assemblage. Anysuchpredictioncan be no more than the result of aparticular assemblage of particularhybriditiesand holes. Thewaysoftribalimage,fashionable deviance, and cultural distinction, that is, the ways of criminologicalchangeand newness are ultimately unpredictable.

Acknowledgement

Parts of this paperwere first presented at the ‘Teaching Theory’ symposium at Birkbeck College, University of London (September 24th, 2004). Thanks go to quiteafew peoplewho offered supportiveremarks on that occasion:Phil Carney, Costas Douzinas, Simon Hallsworth,KeithHayward, Gordon Hughes, Paul Kiff, George Pavlich, and Claire Valier.

References

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Gombrich, E. (1962) Meditations on aHobby Horse and Other Essays on the Theory of Art.London: Phaidon Press. Gusfield, J. (1986) Symbolic Crusade. Status Politicsand the American TemperanceMo- vement.Champaign: University of Illinois Press. Kearon, T. (2005) ‘We Have Never Been Liberal. BourgeoisIdentityand the Crimi- nal(ized) Other’, Social Justice,32(1). Kuhn, T. (1970) The Structure of Scientific Revolutions.Chicago: University of Chicago Press. Latour,B.(1993) We Have Never Been Modern.Cambridge:Harvard University Press. Latour, B. (1990) ‘Drawing Things Together’ in M. Lynch and S. Woolgar (eds) Represen- tation in Scientific Practice.Cambridge:MIT Press Lippens, R. (2003) ‘Imagining Lines, Assembling Criminologies, Towards Negotiation.’, in K.L. Kunz and C. Besozzi (eds), Social Reflexivityand QualitativeMethods:Toward aCriminological Self-Understanding in Postmodern Society,Bern: Verlag Paul Haupt. Lippens, R. (2004) (ed.) Imaginary Boundaries of Justice. Oxford, Hart. Lippens, R. (2005) ‘Crime, Criminology and Epistemology:Tribal Considerations’ in: B. Arrigo and C. Williams (eds), Philosophy,Crime, and Criminology. Chicago: Univer- sity of Illinois Press. Maffesoli, M. (1996) The Time of the Tribes. London: Sage Panofsky,E.(1955) Meaning in theVisual Arts.New York: DoubledayAnchor. Strathern, M. (1991) Partial Connections. Lanham: Rowman and Littlefield. 1 ImagesofViolenceinEverydayLife

Anthozoe Chaidou

Violence,both in its physical and psychologicaldimension, implies athreat which tends to exert apsychologicalpressure and blunting of any resistance by an- nouncing or forecasting impending danger or evil, material or moral harm. In other words, it impliesthe useofforce forthe inflictionofone’swill. In the wider sense, violence can be considered any manifestationofforce and/or authority aimingator resulting in harm against an individual or agroup.Violence,however,isarelative and subjective notion – it is methodologically impossible to have auniversal perception of what exactly constitutesviolence. Usually, it is regarded mainly as a physical infringement, but the semantic framework of the term can be expanded to includeany formofaction or behaviour perceivedassuchbythe involved parts. For instance, it can be limited to homicide or injury,2 or it can be extended to verbal insultorderogatory behaviour,orevensocialdiscrimination or constraintof rights (such as inequality in education and social rights in general). As aconsequence,thisplethora and complexityofphenomena, as well as the varyingpercep- tions of violence, remove any common ground, any methodological starting-point for its study. With regard to the historical dimension of violence, the relations of power and authority which dominate in contemporarysociety evolvedfromhistoricalproc- essesofdifferentiation andtransformation, and depend on the existing levelofde- velopmentofasociety,aswellasonthe differentsocialsystems.How power rela- tionsare defined and which formofsovereignty prevails are determined by the stage of evolutionofasociety and the established socialsystem.3 Violence is asocial phenomenonand its current formsare theoutcome of thehistorical evolution of aspecific society and can be perceived, understood and explained only in relation to theconditions prevalentinthissociety.4

______1 This is arevised version of theGreek original (published in: Commemorative Volume in Honour of Prof. IoannisManoledakis,Sakkoulas,Athens /Thessaloniki, 2007). English translation by T. Serassis. 2 See, for example, the respective Home Office Bulletin (Coleman, et al., 2006,p.9). 3 For example, in asociety that doesn’trecognise proprietorship, the possession of property does not constituteafactor of power (Theunert, 1987, p. 52). 4 Theunert,1987, p. 131. 58 Anthozoe Chaidou

Violence has become an integral part of everyday life. We experience numerous instanceswhich are ad hoc evaluatedfrom very importanttoinsignificant. As aresult, we maynot reacttocertain instances of violence, or even not be aware of them.Violence can be explicit or implicit and can incorporate any form of coercion in every aspect of everyday life – physical,corporal, verbal, sexual, mental, and so on.5 Involvedinthese processesare not only individuals, but also groups or even society as awhole.6 At theindividuallevel,violencecan be either physical (e.g. corporalviolence, restraint of freedom)ormental (e.g.discrimination, threats, insult).Atthe sociallevel,structuralviolence results from unequal conditionsof power in the socialsystem, such as hierarchical relations, role assignment, etc. The formerare more clearly observable,while the latter are usually deduced. In any case, the outcomeofall forms of coercion is the inflictionofharmand pain. The unequal distribution of the means of domination results on the one hand in the pre- dominance of certain groups,and on the other hand in power relationscharacter- isedbythe potential of violence, even when no actualviolence is exercised. Diachronically, the exercise of violence presents differentiations. Violence, which is foundedinthe structureofasociety and intensifies within it, transforms withsocialchange.Violence directedtowardindividuals transformsinto violence in thesocial structure, into indirectoranonymous forms.The direct and personal relations of power transform into abstract relations of obedience to asuperior institutionalised state domination. Durkheim makes general reference (1978, pp. 66 ff.) to instances of violence in social life, such as, for example, the roleswhich are attributed duringeducation and entail aspecificformofconduct, the conditions of inequalitywhich are associated withpropertyand income,the dependence of weakerstates on stronger ones,and so on. Violence is an inherent characteristic of society, a ‘social disease’ spreading throughout every field of social action. This is even more apparent if one considers the Weberian notion of the state, or thesocommonamong criminologists perception of the ‘fight against crime’,which is founded on law enforcement and justice.7 History also teaches us that violence, either at theindividual or the social level, has always servedasrecourse to the resolution of conflict.8 Thepotential of violence hasalwaysbeenconnected to powerinthe Weberian sense, i.e. the ability of an individual, agroup, or an institution to imposetheir interests uponother individuals, groups,orinstitutions,inspite of their resistance.9 Of particular importance is the violence in socialstructure,which derives from the inequality in social opportunities, andisthe outcomeofthe influence of politi- ______5 Cf. Krall, 2004, p. 12. 6 Seeamong others Galtung, 1978, p. 16. 7 See also Friebel,1976, p. 113. 8 Rolinski, 1990,p.11. 9 Theunert, 1987, p. 43. Images of Violence in EverydayLife 59 cally and economically powerful groups in asociety, aiming at securing andmaxi- mising theirbenefits. Given that withinapluralisticdemocratic societysocial opportunities are made available in acertain degree, each increase in power and influence takesplace againstthe interests of othermembersofthis society. Theviolence which exists in social structure is exercised by institutions of social control, as a rule it is imperceptible, anditusually functions implicitly.10 Modern society has been familiarised with violence to an alarming degree. This can be attributedtothe technological evolution, as well as the changes in both the way of life and the way of thinking. The mass media, in particular television, have undoubtedlyplayed amajorroleinthisfamiliarity with violence. On the one hand we have visible formsofviolence,those which can potentiallybe managed, i.e. measure and record violence, andtake any measures available, and on the otherhandwedealwithlatentforms of violence, which lurkinvariousaspects of every- daylifeand which arenot easily perceptible,eitherbecause of indifference or because their true dimensions and consequences are deliberately concealed. Violence within everyday activity andinviolationoftraditional conduct norms – which cannot be takenfor grantedany more – has becomeacharacteristic of modern society:from drivinginthe streets, with dramatic consequences in many cases, to competitiveness at theworkplace, with actions undermining the work and personality of the colleagues, amultitude of phenomena constitutes amosaic of violence. Theextent to which such phenomena violateorevenabolish civil rights seemstobeofnoconcern anymore.And these forms of violence are even more dangerousbecause they are often notperceived as such, or – even when they are – thereisusually no way of defenceand protection against them. Someofthe forms of violence that can be observed in everyday lifeinclude family and schoolviolence, violence in the mass media, as well as state violence. Sev- eral instances fall intothe phenomenon of family violence. Among others, the focus is mainly on corporal violence, both active and passive(when the perpetrator neglects in any waymembers of the family), sexual harassment, psychological violence, andalsofinancial (whenthere is economic exploitation of members of the family).11 Reference in themedia is mainly made to children,especially victimsof sexualabuse.Reports on family violence concern in most casessexualabuse of children, particularly the corporal dimension of the violation.Violent acts against adolescentsare seldom referred to theauthorities or mentioned in reports, mainly because they are usually considered jointlyresponsible, especially whentheyhave adelinquent or ‘anti-social’ profile, andthe boundary between victim and perpetra- torisblurred.12

______10 Rolinski, 1990, p. 15. 11 See also Bougadi, 2004, p. 90. 12 Krall,2004, p. 12. 60 Anthozoe Chaidou

Equally important nowadays is the phenomenon of school violence. This includes violent acts against schoolmatesorteachers, which rangefromverbal abuse andinsultstorobberies andattacks (even lethal); butalso vandalism,sexualhar- assment, and self-destructive acts (even suicidal).Several theories have been suggested:13 Violence is consideredanoutcomeofmodernisation, especiallythe transformation of socialisation. At the macro-social level, the socialtransformations and theresulting insecurity are to alarge extent responsible forsocialand individual problematicsituations, and mental and emotionalpeculiaritiesinchildren and adolescents who often react violently and aggressively in an effort to overcomethem. The instability regardingtheir verylife, becauseofthe continuous andincreasing mass unemployment, as well as the lack of social safeguards andthe growing risks (inrelationtohealth, theenvironment, etc.), create unstable perspectives and inse- curities for young people. In Western countries juveniles have gained their independence, enjoy amore liberalupbringing, in comparison to previousperiods, they have more interests and desires regarding theirleisure time.Incontrast, their relations have becomeunstable and insecure, and interpersonalcommunication is increasingly impaired. They mayrelish the advantages of an affluent society – although not allofthem – but this entailsthe mental and social cost of modern life. Social disorganisation, in accordance with anomic theory, emerges, with an impact both at the socialand at the individuallevel, themain feature of which is the declineofsocial orderand the resulting crisis. Theseconditions maydrive the individual to a ‘deviant’ or ‘anti-social’ reaction. Afirst form of disruption is caused by the failure of the individual to integrate,due to insufficient social relations. The breaking of socialbonds can appear as early as in school years, when the proce- duresgoverning performance and integration disruptindividualadaptation, so that commongoals andsolidarity areabsent amongthe group,mainly becausethe ex- periencesoffailure threaten theidentity of theindividual andinfluence the self- esteem andintegration with the group. Additional anomic situations can be causedbystrictpressure to adapt. The emphasis on conformistsubordination and on duty, in combination withthe suppres- sion of individuality, maydisrupt the development of individuality andbalance and lead to crisis.Individualinterests and needs are notfulfilled, not even the desire for maintaining aunique personality. In addition, the risk of violating the rules and conditions of anxiety increase. The scarce opportunities for influenceand participation widen the gap and the negative perceptionofschool, its values and rules. They generate feelingsofrepression, weakness and neglect. Another form of anomic situations relatestothe inequalities in education.Itresults from the distance between goals and means, between needs and available ways for the accomplishment of these needs. For example, the targets that are set at school, the accomplishments that need to be achieved and schoolsuccesscannot be attained through the means ______13 See also Holtappels, 2004,p.29ff. Images of Violence in EverydayLife 61 and waysapproved by the system, because legitimate means are unequally distributed.This kindofsocialisation can leadtoanomicconditions. Interestinglyenough, although school violence includes avariety of behaviours on behalf of the students, as described above, violence exercised by those in power (principals, teachers,counsellors,administrators) is almost always ignored. For example, teachers oftenabuse theirpower at various levels, but this is seldom considered violent behaviour and – perhapswith the exceptionofsexualabuse – is almost neverreportedand examined.14 The relation between teachers and studentsischaracterised by an interaction which often causesconflicts and leads to violentbehaviour. Another type of evident intrusion in everyday life, but rather ambiguous as to its consequences, is the contentofthe mass media, especiallytelevision, due to its immediacy and intensity. Television presents both actual violence (warfare, violent crime,accidents and disasters, etc.) and situations of violence (labour and political conflicts, economic and international conflicts, living conditions in third-world countries,etc.). Televised violence can be connected with an increase in aggres- siveness, to the extentthatachild perceivesitaspartofthe socialisationand adopts it.15 The effects of mass media on violentbehaviour have been extensively studied.16 In addition, continuous reports on crime – ofteninflated and exaggerated – contribute to an increase of insecurity andfear of crime, but also to ademand for stricter measures and the legitimation of apolice state. Reporters and journalists often takeuparegulatory role,interfering with (orevendirecting)the investigations, and – in somecases – thejudicial process,thus creatingperceptionsofcrime and the criminal and shapingpublic opinion on matters of violence, crimeand justice.17 Apart from portrayingviolence,television and the mass media in general generate violence themselves by distorting, manipulating, blurring, or concealingfacts and information. Especially television employsthe powerofimage to presentnews in aviolent way: natural disasters (heat-waves, earthquakes, floods,tsunami, etc.), social ‘threats’ (criminality, terrorism, immigration, hooliganism,etc.)18 are some of the favourite subjects which properly dramatised create an environmentofvio- lenceand fear.One of theside-effectsofsuchanenvironment is areactiveand hos- tile approach toward social phenomena, particularly when vulnerable groups (foreigners, youngsters, poor and homeless people, etc) areconcerned,often of avio-

______14 For instance, althoughseveralstudies deal with violence by femalestudents,there is no discussion on violence by female teachers(Krall,2004, p. 13). 15 This can occur in relation to thewider cultural context and the existing social conditions(legitimation of violence, decline of values). See also Dimitriou, 2003, pp. 193 ff. 16 See, among others, Theunert, 1987,pp. 44 ff. 17 Cf. Dimitriou, 2003, pp. 193ff. 18 Cf. Dimitriou, 2003, p. 194. 62 Anthozoe Chaidou lentnature.19 There exists an interrelation between mass media, public opinion, ag- gressiveness and collectiveviolence. Television, but also radio and newspapers can create acollective predisposition, by conveying violentand aggressive messages.20 Even more problematic appear to be other devices of our everyday life,inpar- ticularthe telephone and the computer.21 One example of intrusionofprivacy is the expandingsurveillanceofcitizens, aviolation greatlyfacilitated by modern technology. Another issueisthe recordingofbiometrical22 and other personal data, whichcan become apowerful weapon of social control. Personal datahas become acommodityand agrowingnumberofcompanies provide – even on the internet – almost every formofpersonal data (financial,health, criminal, etc.),23 which can be exploited in any legalorillegal way. The statedoesnot fall short of employing suchmethods. Forexample, in Greece, ajudicial (or even non-judicial) authority can collect and process personal data (including sensitive data) for the needs of in- vestigationand prosecution,without the prior consentofthe Data Protection Au- thority, which is supposedtobethe safeguard in suchprocedures.24 Technology can facilitate the violation of privacy andoften the citizenbecomes avictim of actions which in extremecases totally destroyprivate life; in addition it reinforces socialcontrol, thus strengthening and reproducing the state apparatus.25 Control becomes easier, more straightforward and feasible at all levels. The abilityofthe modern state to collect information and punish seemstodeeply penetrate the social structure.Control is basedmainly on observation, surveillance and inspection, rather than on physical repression.26 According to Gary Marx (1989d,p.33) we have been ledtoa‘transparent’ society in which procedures that used to be protected – even thoughts andfeelings – have become visible. In general, there is great concern among citizens about modern technology and its (arbitrary)use. Even when employed as apreventivemeasure in everyday life – as in traffic control, passenger and luggagescreening at airports,CCTV in streets,buildings and establishments27 – the minimum necessary guaranties forthe protection of the citizen are often not met. Technologycan thus become ameans of supervision, surveillance and control.28

______19 Manoledakis, 2003, p. 66. 20 Senghaas 1971, p. 49. 21 See Marx, 1989(b) and1993. See also Weitemeier, Große, 1997, pp. 335ff. 22 Such as fingerprints or palmprints, eyeiris recognition,D.N.A.analysis. See also Marx, 1989(c). 23 Marx 1989(a), Chatzidis, 1998. 24 Nouskalis, 2003, p. 9. 25 See Chaidou, 2003, p. 95. 26 Marx, Reichman,1984, p. 444. 27 See also Alexiadis, 1990, pp. 10 ff. 28 Chaidou, 2003, p. 97. Images of Violence in EverydayLife 63

Violence is connected with the state monopoly of coercion, vested with the au- thorityoflaw,which can lead to a bellum omnium contra omnes (‘war of all againstall’).29 The power and authority of law are by definition legitimate, since theissue in question is theenforcement of law and order. The state needs violence forthe establishment of its structuresand forthe eradicationofresistance against its decisions.Power is firmlyassociated with violence.30 The discussion on the notion of violence takes place in thetriangle citizen – fellow-citizen – state.Three dimensions can be distinguished: violence as physical powerand force, violence as an insult, andsovereign or state violence. From an- cienttimes,violence has been viewed as arelation of power which is imposed by the dominant ones on the weaker ones. Only in modern times,the Frenchrevolu- tion challenged this relation,byway of theidealofpeople’ssovereignty. In this respect, violence stemsfrom the people.31 As for the statemonopoly of violence, law and its administrationare privilege of the state – any formofretribution is forbidden.32 The state employs violence as defensive, administrative and correctional:33 Defensive – within the borders the stateislegitimised as the sole regulator;outside them are the ‘foreigners’ with which thereisalways the possibility of conflict. Administrative – the main formofstate violence, it regulates social life by means of bureaucracy and preventive repression, with regulatory frameworksofdiscipline, and inter- ventionineveryday activities. The state manages space and time, controls education, health, relations, employment, and so on. The state on the one hand forbids and punishes violence – at least in its explicit forms – but, on the other hand, it possessesthe monopoly over violence and em- ploysitinseveral aspectsofeverydaylife. Besidescriminal law, the stateexercises its sovereigntythrough the legalsystem andthe bureaucracy in which latent forms of violencecan be found.Citizens are faced withagiganticlegal framework, characterised by extremecomplexity andthus impossible to be familiar with and com- prehend, which is usually imposed in aviolent way. Those in adisadvantageous position, socially and financially, experience state violence more intensely.34 The three fundamental principles which should govern theuse of violence – legality, necessity, and proportionality – havebeenviolated. On the basisofthesethree principles the exerciseofviolence (by the agencies of formal social control)35 ______29 Horn, 1978, p. 34. 30 Rammstedt, 1978,p.74. 31 Krall,2004, p. 10. 32 Dimitriou, 2003, p. 153. 33 Dimitriou, 2003, pp. 155 ff. 34 Schüler-Springorum, 1990, p. 55. 35 Sofoulakis, 2002, pp. 648 ff. 64 Anthozoe Chaidou should be provided for in law, should be justifiedfor reasons of public interest, and there should be aproportionalrelationbetween thesanction and the served public interest. The respective constitutional restrictions regarding theinterventioninpri- vate life apply both to the agents of public authorityand to anyprivate agent that performs similartasks under any capacity (such as private security).36 The expansion of the state monopoly does not only entail an increase in drastic formsofviolence(thesecan eventually be abolished, as in thecaseofdeath penalty);itismore evidentwith the increase and intensification of theinterventioninsociallife, espe- ciallywhat was traditionally considered private space. Theseforms of intervention arebecomingmore refined, invisible,and inconceivable. Thisismainly due to the perfection of legitimisingtechniques, as well as the greatereffectiveness of the means of violence whichthe state,asalegitimised and institutionalised authority, possesses.37 These relations of violence can be traced in various agents of authority, such as the socialcontrol system (e.g. the police),education, the church, health,and so on.38 It depends on the prevailing social condition, whether these relations are considered authoritative and to what extent certainactions areseenasviolent. Furtherexamples of overt or covert violence canbefound in variousmovements promotingnationalism,racism,anti-Semitism,autocracy, fundamentalism, and so on; in labour conditions; in social exclusion; even in internationalpolitics andthe economy. In spite of methodological problems,there has been extensive research and theo- rising,both at the individual andsociallevel,onthe causes of violence. Various theories(from biological and psychological to sociological andpolitical) have been employed to explain andmanage phenomena of violence. Nevertheless, apart from the successorfailure of these attempts, violence remains acomplex phenomenon which needsa‘broad-spectrum’ approach, focusing on the framework within whichviolenceemergesand its effects on social structure, particularly when violence originates from thestate itself.The analysis then turns to situationsthatre- late,among others, to inequalityand social change. When members of society are influenced to such an extent that their materialand spiritualfulfilment is less than expected,phenomena of violence tend to occur. It is, in other words, aprocess of violence on thebasis of existing social conditions, aviolence that reacts to poverty, insecurity,hunger, death, etc.and aregulatory violence,involving issues like social and national identity, gender, age, and so on. In anycase, when we discuss violence as asocial phenomenon,the social and political issues should be taken into consideration. The causes and effects of violence,aswellasits management cannot be

______36 Manoledakis, 2005, pp.723 ff. 37 Theunert, 1987, pp.54ff. 38 Cf. Dießenbacher, Schüller, 1993, p. 34. Images of Violence in EverydayLife 65 separatedfromthe social, cultural,political, andeconomic dimensionsthat constitute the framework within which violent phenomena emerge. The perplexity of violence calls for aversatile analysis at variouslevels. In conclusion,itshouldbepointed outagain that contemporary societies are characterised by various occurrences of violence,eitherexplicit or implicit, which are definedassuchaccording to who is involved and what their effects are. Images of violence are constructed, like other images in social life, and the emphasis of bothacademic discourseand social reaction (formal or informal) falls upon those cases which fit better in the general picture.Inthis contextitismoreprobable to label as violent ariot or even ademonstration than the social conditionswhichde- privelarge partsofthe population even of the basic means. Thereisfamiliarity with violence in everyday life, mainly because it is not identified as such,eitherbecause of its ‘invisibility’,orfor the sake of asuperior goal, such as security, order,orpublicinterest. Citizens accept therestriction and violation of fundamental rights, without perceiving such actions as aform of violence. They havebeen convinced by the state, the mass media and the various ‘experts’ thatall these things happenfor thebenefitofsociety, the preventionofevil,the protection from abiggerhazard. Above all, there is no concern as to the framework within which phenomena such as terrorism or youthviolenceoccur.Measures are taken, both repressive and preventive,39 which violate fundamental rights40 and cause great harm in our cul- turaland legal tradition,asithas been formulated in the Western world overthe last centuries. Stateviolence is legitimised, racistreactionsare justified, large segments of the society are excluded, marginalised andstigmatised on thebasis of their race, religion or social status. Theman (orwoman) in the street is so accustomed to violence that he/she is willing to resort to it as asolutiontoeveryday problemsand conflicts, in an attempt to protect his/her private sphere. Privacy, one of the pillars of Western liberal democracy, is being sacrificed for the sake of law and order. And the members of society arewilling to accept these continuous restrictions and violations, together with several other episodes in their everyday life, since they do not fall into the official definitionsofviolence; they are not part of the image presented to them.

______39 Recentexamplesincludethe so-called ‘biometric’ passports and identification cards, as well as the European arrestwarrant.See also therulingofthe German FederalConstitu- tionalCourt (BVerfG, 2BvR 2236/04 /18.7.2005). 40 See Manoledakis’ critique on the issue of terrorism(2003, p. 66). 66 Anthozoe Chaidou

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Imagesof“Crime” from KindergartentoHigh School: Development and Differentiation of Concepts of Crime and Criminals in the Early Life Course amongYoung People in Germany

Klaus Bott, Kerstin Reich&Hans-Jürgen Kerner

Introduction

“Acrime is asin consisting in the committing by deed or word of that which the law forbiddeth, or the omissionofwhatithath commanded”

Thisdefinitionstems from the 27th chapterofthe book “Leviathan or theMatter, Forme and Power of aCommon-Wealth Ecclesiastical and Civil”,one of the most important texts in the field of political theory andthe theory of lawand state. Althoughmorethan350 years havepassedsince theEnglish philosopherTho- masHobbes (1588-1679) forwarded this definition of crimeinhis famous treatise, based on arather pessimistic anthropological viewofhumankind(“homo homini lupus”) and therefore explicating the fundamental need to endthe war of each against other by the big “superpower” Leviathan (1st.edition 1651), it seemsstill up-to-date. For even nowadays adults andjuveniles alike when asked about “what does crimemean?”frequently answer that question in avery similar way. Crimein their opinion is what is forbidden or what is punished. This linkage, however, does not really illuminate the underlyingconcept of crimeinsubstance, because such a kind of explanation bearsjustatautologicalstructure: What crimeis, has to be punished and what is punished, is acrime. Hereexactly lies themain difficulty of the wholetopic: Asocial agreement is suggested by the apparent unanimity of the answers about benchmarksofjustice and injustice, but those are notrepresentedin thesocialdiscourse. 70 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner

One of Europe’s leadingmarket-researchand public opinion firms, the Allens- bachInstitute forDemoscopy, has documentedthat the opinions and conceptions about justiceand injustice, good and evil, normality and deviance have increasingly variedover times within German society. Thisisone reasonwhy it is becoming more and more necessary to set the discussionabout crime images on ascientific agenda, with the aim to analysesimilarities and differences between people’s perceptions and the law. There are typical questionslike: “what does crimemean?”or“what kind of cog- nitiveand emotional associationscan be subsumed under this term?“ They are as difficult to answerasthe other question, which standardsmight have to be imposed to thelegal definitions of punishable behaviour(actsoromissions) or to the moral convictions and attitudes of the society. Up to now social research has focused particularly on comparisons and differentiations between criminal law and deviantattitudes or behaviour(e.g. Rüther, 1981a; 1981b, Fabricius,2000). These approaches have yielded alot of interesting results. They were confronted, however, with the problem that standardized surveys areusually notabletosum up allaspects of subjectivecrimeconcepts;especially thepathways and reasons why these concepts change throughout the life- cycle. This is thereason why we selectedanotherapproach in anew research project at theInstitute of Criminology of the University of Tübingen. In order to get afun- damentalunderstanding of implicit theories young people adhere with respect to crime, we turned to aqualitative methodology by directing our attention to children and juveniles.Weexamined concepts of crimeand their development in the early lifecourse of severalindividuals. Hereby we considered special factors which are to be considered to influence the socialisation processofchildren’sand juveniles’ images of crime.1 We base our presentation here on publications aboutresearchofotherscholars, which we supplement with data from our own research projectinorder to illustrate the children’sand juveniles’perspectives.The scientific research and theory building in the field of the development of subjectiveand implicit crimetheories is quite ayoung approach,although an increasing scientific andpublic interest has appeared within the last few years.

______1 Our method applied open groupdiscussions with 5- to 15-year-oldchildren andaddi- tional detailed interviews with single students,teachers and parents. We asked the following introduction questionto44groups of childrenofdifferent age, education andcultural background: What does “crime” mean to youorhow do you understand “crime”? Our goal was to understand how they construct theirimages and concepts of crimeand criminals and who or what has had thegreatest impact on thedevelopment and internalisation of these concepts.The project hasbeenpromoted sinceJanuary 2005 by the GermanResearch Foundation(Ke 275/13-1). Images of “Crime” fromKindergarten to High School 71

Sincespecifictheoriesofcrime-concepts arenot available so far, it is useful to embed the research in the domain of moralsocialisation. Moral socialisationtheo- riesoffer different setsofpathways to showhow peopleinternalisetheir moral knowledge andidentity. Duetothe relationship of morality and crimeconceptions we assume that the development of images of crimefollows similar pathways.

The relationship of moralityand crime conceptions Of coursemorality andjustice arenot congruent. While morality provides the orientation framework for the distinctionofgoodand evil, the function of the justice system is to establish as clear cutaspossible boundaries between permitted and prohibited acts.But many scientists assumethe existence of an obviously close relationship between morality and crimeconceptions. Lösel and Schmucker (2004: 906) point out that penological norms are even based on moral conceptions, which are deeply embodied in thesociety.Therefore criminal offences are always, likethe othersideofacoin, offences against moral values. Kunz (2003:1)sees the linkbetween morality andimagesofcrime in asimilar way. He casts into doubt the formalorlegal definitionofcrimebythe law, and wonders whetherweshoulduse our ownmoral guidelines to establish aset of termsabout what shouldand shouldnot be punished. Although the theories of moral development do not have aspecific focusoncon- cepts of crime, it becomesmore and more clearthatthese theories – dealingwith concepts of good and bad behaviour – havealot in commonwith young people’s construction of images of justice and crime. This justifies our working hypothesis that images of crimearise more from the conceptions of goodand evilthanfrom lawand order.

Moral Socialisation Theories Themost popular pioneers of developmental psychology whose work remains relevant to contemporary theories of moral socialisationare Piagetand Kohlberg. Piaget (1932/1980)focused his studies on the moral behaviour of children in order to learn more about their beliefs about right and wrong.Hefiguredout that children achieve their images of the world as aresult of social interaction with the environmentwhile goingthrough specificstages. Thesestagesare completedina fixed order. Kohlberg (1971) relied on the same interviewtechnique as Piagetbut usedstories called moraldilemmastolearn how conceptsofright and wrongbehaviour changedduring the developmentalphase. He found out thatthe processofattaining moral maturity wasmore gradualthanPiaget had suggested. Piaget’sand Kohlberg’s theories promotedalot of furtherresearchand theorybuilding (see Murray 2002). 72 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner

To have somereference guidelines for thedevelopment of crimeimages it seems useful to refer to different theory sets of socialisation, which derivedfromtheir fundamental theoretical framework. The followingfour models are not described extensively in this text but focus only on the core statements.2

Conditioning Model (The social learningapproach) According to thismodelnormsare valid, if theyare strengthened by sanctions. Normconformity results in positive and norm deviation in negative sanctions. The correspondingideaofman is: homooeconomicus. Thetheoretical base of this approach is Kohlberg’s (1971) description of the pre- conventional stage of the moral development: People act in conformity with norms to avoid punishment and to satisfy their needs and wants. Radical behaviourists think that normsand values do not have an independent existence. In this tradition moral behaviour is conceivedasthe result of acost-benefitanalysis. As e.g. Skin- ner (1974:193) formulated: “Nobody actsbecause he knowsand feelshis behavior right; he acts because of the contingencieswhich have shapedhis behavior.” In other words, man’s behaviour is conditioned.The corresponding educating style to thismodel is conditioningbypunishing norm deviations andrewarding normconformity.

Superego Model (The psychoanalytic approach) In this model it is assumedthat theindividualinternalisesoriginally external normsinform of asuperego, which controls all actions. This superegodevelops through theidentificationwithsuperiorand powerful parents as representatives of the state.The relative powerlessness of young children due to the naturalhierarchi- cal relationship between adultsand children leads finally to the internalisation of theparents or of thestate’s set of norms. In this context Kohlberg (1971) speaks about the morality of constraint: Formost children at theage of 10, adults decide about what is right and wrong and that this is the way things are.This view does not consider and interpret other aspects of the broadercontext in which actions occur. Norminfringements in this case are punis- hedbystrictinternal sanctions,e.g. bad conscience and feelings of guilt. To this model belongs the authoritarian style of education. Astrong and threatening father especially punishes failure.

Model of the oversocialized Man (The sociological approach) Along this model the central motive of the norm adjustment is the fear of love withdrawal. Parsons(1964) describes socialisation as aprocess,during which the humanorganism is culturallyshaped by theattitude of others.The physiological

______2 For more details see: Nunner-Winkler, 1992: 254ff. Images of “Crime” fromKindergarten to High School 73 and the emotional dependence of the child promotes hisreadiness to internalise external expectations and standards.This assumption takes place in away that the norm fulfilment becomes an important personal need. One example of such successful processes is the identification with certain sex roles expectations. Kohlberg’s descriptionofthe conventionalstage has acertain affinity to this model. Because of agood-boy or good-girlorientation, rightbeha- viour means acting or living up to what is expected.

Model of voluntary commitment (The philosophical approach) This model has had only littleinfluence on the discussionsand research in the socialsciences. In contrastmoral-philosophical approachessee the voluntary commitmentasaconstitutivevariable formoralacting. Only Kohlberg’s description of the post-conventionallevel of the development of moral judgement can be consulted here. According to this model, it is possible that individuals ask for the reasons,why norms are valid. The acceptance of thecorrectnessofcertainactions can becomethe motive for moral behaviour.According to Kohlberg, only few people reach the particularpoint of view, in which universalrules of justice prevail. Sometimes this perspective is calledmoral flexibility or moral relativity and means – expressed metaphorically – rules arenolongercarved in stone. They are estimated as general guidelines,which have to be interpreted in the context of actions (see Murray, 2002). Although she expects that the modelofvoluntary commitment becomes more important,Nunner-Winkler (1992: 257f.) suggeststhatnoneofthese models alone can explain everything. Because of the world’s complexity and variety, we have to accept that there are different paths of moral learning.Damon’s (2004: 54)research comes to the sameconclusion:moralidentitygrows up in thousands of small steps, influenced by socialfeedback loops from both inside and outside the family, by observationsofotherpeople’s behaviour andexpectations, by thinking about one’s own experiences, by cultural or religiousaspects andmassmedia.

ImagesofCrimeand Criminals

There are many different images of crimeall of which depend on the level of analysis. Boththe societies “objective”and the individual’s “subjective” conceptionsofcrime areconstantly in astate of flux. That is why definitionsofcriminal actshavetobepermanently renewed.3 ______3 As aresultofextensive discussions in the 1970 and1980s about the labelling approach as antipoltoaetiologicalapproachesmostcriminologistsnowadayshighlight relevance of processes of definition and construction of “crime” to the analysisofdeviant behaviourand criminality (see Kerner, 1994; Hess/Scheerer, 1997). 74 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner

Whiledefinitionsofcrimeenforced by assertive and strong leadersonthe societal macro-level are already wellexplored, we haveonlylittle knowledge about the construction process and the relevant influence factors on the individual level. In accordance with the published research in the field of moral development, scientists nowagree thatthere cannot be monocausal explanations for the development of images of crime. The drasticexperience that could explain everything doesnot correspond withreality’s complexity. However, according to Weyers (2003: 137) the motor of the development lies not in the individual or in the environment,but in the interaction between theindividualand theenvironment. Therefore, theenvironmental factors of influenceand theirinteraction will be described in the following subchapters. Due to the research of moral development, which comes close to the construction of good and evil and therefore to images of crime, aspecial influenceissubordinated to thefactor age. In addition we discuss factors like parental education, direct and indirect affect (orexperience),peer pressure and culture/religion and their respective influences on theimages of crime.

Age-Dependency of the development of crime images

Some of the scholars studying thefield of morality assumethat there is some substantial “thing” in humanbeings, which begins with birth,4 and then has aquasi innate possibility or capacity – dependentoncertain conditions – to grow and to differentiateduringchildhood andadolescence. Ernst-JoachimLampe, penologist and anthropologist, thinks that humans are by nature empowered with aset of fundamental legal convictions. With growing age these convictionsmature duetospecific culturalinfluences,until they are finally, at least under normal societal circumstances and among averagepeople, to alarge extent congruentwith legislativedefinitions.5 Other scientists stress – based on the research of Piaget andKohlberg – the importance of interaction with the socialenvironment as the main part for the development of an understanding of right and wrong. This conception could or could not be equal withlaw and order.

______4 The “nativists”assume that moralbehaviourispart of the emotional disposition, which is inherent in ourspecies. 5 He referred to firstresults of aproject aboutthe development of norms concerning object acquisition in 3- to 13-year-old children, carried out by theGerman Institute for Inter- nationalEducationalResearch (DIPF) settledinFrankfurtand Berlin.This studyintendsto make acontribution to the topic of possession fromachild’spoint of view. The aimisto examine the developmental sequence of object acquisition, by analyzing normative structures and behaviouralnorms, which formthe basis for the development of legal norms(see Weyers, 2003; Sujbert, 2004: 1). Images of “Crime” fromKindergarten to High School 75

First contact with moralrules6 According to social learning approaches, children acquire theirbehaviourstan- dards and value conceptions through observation, imitation and reward.Due to this processes children also learn moral rules early in life. Already at the age of 2.5yearschildren pointout rules to other childrenwhen they notice offences againstmorality or against social conventions. Although children agedbetween3to4are still not able to distinguish preciselybetween moral and conventionalissues, the beginning processofsocial construction becomes visible when offences against moral standardsare especially called “bad”or“evil” (see Weyers 2003: 125). Thefollowing excerptillustrates the distinction that children make between moral and convention issues. The excerpt is takenfromaninterview with athree-year- oldgirlregarding herperceptions of spontaneously occurring violentacts at her preschool (from Nucci et al., 1983). Moral Issues: Didyou seewhatjusthappened? “Yes. They were playing and John hit him too hard.” Is that something you are supposed to do or notsupposed to do? “Notsohardtohurt.” Is there arule about that? “Yes.” What is therule? “You’re nottohit hard.” What if therewas no rule abouthitting hard;would it be all right to do then? “No.” Why not? “Becausehecould get hurt and start to cry.” Conventional Issue: Didyou seewhatjusthappened? “Yes. Theywere noisy.” Is that somethingyou are supposedtodoornot supposed to do? “Notdo.” Is there a rule about that? “Yes. We have to be quiet.” Whatifthere were no rule; would it be all right to do then? “Yes.” Why? “Because thereisnorule.” Thesestatements showthe existenceofadelimitationbetweenmoral and conventional issues. Nunner-Winkler(1999, 2001) positsthatthe process of learning first or simplerules is completed at the ageof4or5.Inadministering littlepicture stories, which set out conflictsbetween moral standards and personal needs, she observedthat children at this age are awareofsimple moral rules likeone shall not steal,one shall notlie or one shall nothurtothers. They also consider these rules as being universal and authority-independent and evendifferent from conventional rules. The firstresults of our own research project dealing with children’sand juveniles’ perceptions and concepts of crime,confirmNunner-Winkler’s results: Children at the age of 5years already have asimple,but clear conception of good and evil and aquiteexactknowledge of moralrules. Theseconceptionsare probably inde- pendentofsex and ethnicalaffiliation.The statement of akindergarten child is exemplaryand illustrating:7

______6 Because Kindergarten children usually do not know the word “crime”, interviewers hadtooperationalize this term by bad, evil or deviance. 7 Thefollowing excerptsare translationsoforiginallyGermanlanguage statements. 76 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner

5-year-old girl: “Thesebad guys do everything: They steal, paint pictures on the streetand steal bicycles. That’sthe waybad guysare.” And what is really bad? “When someone trips somebodyorthrows astone at them,and when someone takes something away from akid without asking.” This excerptillustrates the fact that the girl does not differentiatebetween moral (“oneshall notsteal”) andconventionalrules (“oneshall not paint pictures on the street”). However, when particularly talking about really badacts children at the ageof5yearsclearly indicateonlymoral offences. We can noticethatsocialand moral knowledgeabout justiceand injusticeare already organized as frameworks or scripts at the age of 5years, butthey have to be differentiatedduringthe socialisation. One’s essential philosophy of lifeand basic beliefs usually develop between the age of 5and 15 years (see Petermann et al., 2004; Schüle, 2004: 35).

Thepersonalized evil Although children’s concepts of good and evil are strongly shaped by their own observations andexperiences, often mythic elements becomevisible. Gaps of knowledge are filled in withone’s ownfantasy and arranged considerations. Magi- calthinkingisnot abnormal. It is so to sayanage-appropriate form of intelligence, with which children try in an activeand creative waytounderstand and to explain their environment. Children believe in the power of fantasy and in their witcheries. Their fantasy creates monsters and robbers; and in fantasytheyare alsoableto destroy these creations (see Weymann-Reichardt, 2004). It is not the representations in the mass media, but children’s books, that seem to be responsiblefor the image, which younger children have in their heads. Children’s books describeand illustrate fairytales and bad figures. The bad guy’s profile corresponds fre- quentlytoaresolutebad man, mostlyastranger,who is not familiar with the victim and whose life-style contradictsusual expectations. For children crimeoftenhas faces. It is personalized and oriented to personsor figures e.g. the famous German robberHotzenplotz, whichisassociated with fear and threat through lots of fairy tales. For many children – both boys and girls – the “robber”embodies absolute evil. In ourgroup discussions we noticed adeep fearofthe robber, the stranger, who enticeschildren fromtheir parents and kidnaps them.Alarge number of children mention that they sometimeshave nightmares about robbers and kidnappers. This fear is notonlypresentatnight butsometimesemergesalso duringthe day, which certainlyhas an impact on perceptionsand behaviour, as the following excerptillustrates:

5-year-old girl: “Sometimes Iamafraidthat arobber comesand wants to kill me. Then Iquicklyrun home.” Images of “Crime” fromKindergarten to High School 77

Children can describetheir images of evil in greatdetailand in aconcreteway. However,theymostly have troublejustifying or figuringout their positionsinar- guments. To the question, why the robber is evil, they frequently answer in atauto- logical way also in case of repeated demand: “because he is evil”. On theone hand, childrenobviously aremissing relevant experience; on the other hand, due to their agetheydonot go into depthwhentheythink aboutthistopic. Most youngerchildrenassumeone can recognize criminals by face or outside appearance. 5-year-old boy: “Robbersalwayshave ablack beard and pistols and knives. And they carryeverything in asack.” 7-year-old boy: “If aman is bad, then yousee it in his face. And therefore he is armed.” With the advance of age the children can already imagine that someone does not always carryhis bad intentions openly. Thereforeabad guycan notberecognized at first sight.Howeverthey do notwant to commit themselves: 10-year-old boy: “Acriminal does not look like somebodywho lives on the street. I believe that they look alittle normal.Itdepends if they have just become acriminal or have alreadybeen one for eternity.Those who have been acriminal for along time look strange. They arealwaysdoing strangethings. And theone who has just becomeacriminal knows how to control himself.”

The first definition of “crime” By their10thyearchildrenhavetaken adifficult developmental step: They have to giveupthe clarity and well-defined moral position, which they had already at the age of 5. Instead they have to create amoreambivalent and complex image of good and evil as well as normality andcrime. Thefollowing excerpt from an interview with akindergarten teacher describes the difficulty of this process of integrating, relating and readjustingand alsoper- mitting of exceptionsofthe rule. Theinterview was part of our own research project. Kindergarten teacher: “It is like this: Children at the age of five, six, seven have a fixed moral representation of the world. And then they have to learn the abilityto make finer moral differentiations.” At the age of approximately 10 yearschildrenusuallycan givedefinitionsof crime, which comeclose to reality. Like adults, most 10 year old students are in- clined to describe and define crimeindirectly with examples. The following discussion cut-outs demonstrate this: 10-year-old girl: “Ibelievecriminalityiswhenfor example arobber kidnaps some- bodyorsomebodydoes something very very bad like when somebodythrows you throughthe window or something like that.” 78 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner

10-year-old boy: “Criminality is when you forexample kill your archenemy, that is criminal.Ifyou kill me now then you would be acriminal andyou must go to prison.” It is remarkable that children at the ageof10–which means prepuberty – still report mythical elements. But the image of crime becomes more and more dominated by classical offenses such as murder andkidnapping.The focusofeveryday conceptions of crimelies in dangerousoffencescharacterizedbyphysically atta- ckedand seriously injured victims. Environmental and white-collar crimeonly plays asubordinated role. Children only mentioned these types of crimeincases of strong personal affect or astrong presenceinthe mass media. For example, in a group discussion agirl reports that atransmitting pole was established in direct proximity of her parents’house. She assumed thatthere is “radioactive contamination”which causes cancer, learning inabilityetc. From the girl’s point of view setting up such amast is acrime.

Adolescents’ images of crime During adolescence the pattern or wayofthinkingabout moral issuesisassumed to developfromarather simple egocentric orientation to amore complexsocial orientation. Lateroninyoung adulthood, this moralorientationshould end up in rather abstract values or moralprinciples. At theage of approximately15years people’sremarks dealingwith crimebe- come more elaborated and less dependentupon their parents’ influence. Not only is moral knowledge established at this age, but also moral motivation (see Nunner- Winkler, 1999: 293ff.). In contrast to the moral knowledge, moral motivation is no longer universal,but the result of adifferential learning process, in which consequences are alsoincludedbyrule infringements. 14-year-old Italian boy: “You have to know that youare not allowed to do it. And I alsoknowthenthatIam notallowed to hurt somebody because Idon’twant to be shot by somebody.” 16-year-oldGermangirl with Russian descent: “Iwouldn’t say that it’scriminal if someonedoes something against his parent’swishes. That’s not crime Ithink. If someone is bad to the teachers in school that’salso not acriminal, but what takes place in public or has something to do with the police and what is legally forbidden that is acrime.” This description of children’s and juveniles’ images of crimegives an idea of the wholeissue.Aremarkable fact is that with theadvancement of age, the conceptions of crime between persons of the same age tend to differ moreand more. The process of the appropriation of basic beliefs is finished at the age of 15, yet diversityremains. Several studies dealing with adults’ or university students’ imagesofcrime confirm theseresults (see e.g.Rüther, 1981a,1981b; Fabricius, 2000; Kania, 2005). Images of “Crime” fromKindergarten to High School 79

The role of parental education

Thereisawide consensus among scientists about the way children develop their initialmoral convictions. They do not “learn” their first moral beliefs through direct, explicit instruction but through assumption and internalisationofsocial standards from adult models with which they themselves identifywith. Usually children observethemindaily handling andcopytheir behaviourlater on (seePe- termann et al., 2004: 225). Socialisationtheorists have viewed moralinternalisation as stemming primarily from parents’ influence on children through theirparenting practices,disciplinary strategiesand parenting styles. Ideally,parents and educators explain moralcon- cepts through detailed instruction and concerning fairness. If parents recognize standard-conformalbehaviour, amoral-conditioningprocess takesplace. Social learning concepts show on the basisofexperimental social research that normsand moral behaviour are learnt through positiveornegative reinforcement. Children learn particularly through social interaction with authorityand expe- riencepresenting personsthat certain actions are not permitted and therefore bad. Keller (1982) could show that family interaction processesdetermine conditions and development processes of moral cognitions. Agirl from a7th class remembers: 14-year-oldgirl: “My littlecousin is now two years old. When he slaps one just for fun one must say no. So he knows that it is wrong, that you cannot slap people. And Iknow this from my parents.” Weyers (2003: 126ff.)underlinesthe important role of parents for the development of children’s moral consciousness, too.His research is basedoninteraction between himself and his daughter. He noticed that his daughter oriented her statements usually to the comments of her parents. For example she does not agree with aman,who just wants to kiss astrange womanonthe street; butshe accepts that awoman would like to sitdownnextto anotherwoman on the samebank in apark.Weyers stresses that the parental benchmarks were absorbed, but the reasoning was different from the parents’ reasoning duetoachildlike way of thinking.Inaddition parental orientationisex- pressedthrough thefactthatmany – often quite rhetorical – questionsare asked to the parents (“that is bad, isn’t it?” or “onemay not do that, right?”). Foranattachmenttonorms and moralbehaviour it is necessary to know the rules and to understandthe reasonswhy the rules are valid.Althoughthere is afast development of the rule knowledge (cognitive) andthe value dimensions (affective: e.g. “robbers are bad”), the development of understandingthe validity of normsis difficult and long-lasting. Not only moralreasoning butalsomoral behaviourofchildren is closely linked with the relationshiptotheirparents. Döbert and Nunner-Winkler (1983) specify 80 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner this with thefollowingstatement: The readiness of achild to do something properly is promoted substantially by an affective warm and cordial relationship between parents and child.Sucharelationship is conductive to the child’s core confidence. Whileasupportive and non rigideducation style is helpfulfor the internalisation of norms,anauthoritative and force-focussedchild rearingstyle prevents alasting internalisation. Also love withdrawal as amean of education leads,asempirically proven by Gilligan, to behaviour problems (see Damon, 2004: 54; Rössner, 2004). Thatmeans an insufficient affective parent-child-attachment or aheavily disturbed socialenvironment leads to an unsatisfying development of the “I” as well as – like Freudians would express it – to an insufficient interior representation of social laws. CognitivetheoristslikePiaget, Kohlberg and Damonagree with this as they generally have proposed that the hierarchical nature of parent-child relationship couldconstrainachild’s development (e.g. authoritarian father). As mentioned above the interaction processes within the family creates an inter- pretationframework for the orientation in social situations.The firstimagesof good and evilare builtinthiscontext.But the influenceofparents decreases with the advancing age of children and must leave the floor to other influences,especially thepeergroup andthe mass mediabut also theirown affect.

Direct andindirectaffect In the last decades, there has been anoticeable increasing crimerate, concerning particularly brutal violentacts among children and young people. With this trend the probability risesthatchildren tend to getintouchwithcrimeeitherdirectly or by observation. Consequently norm-learningcould be mediated throughthese pathways,too.

Direct affect Numerous studieshave documented that youngchildren have ample social experiences withphysical andpsychological harm, fair distribution and the violation of rights throughtheir experiencesofrules, rule violation, misdeeds and peer conflicts. These typesofexperiences arehypothesised to lead to the construction of moral concepts. More specifically, the experiencesofchildren as participants in moral conflicts and as victims and observers of moral transgressions lead to the constructionofab- stractnotionsoffairand unfair, right and wrong (see Smetana,1999). Rüther (1981c) assumes that asubset of the images of crimeresults from direct affect: While seriousoffencessuch as murder and homicide are labelled by persons and mass media as acrime, personal negative affect playsanimportantroleparticularwith easier offences,e.g. within the field of bodily injury, theft or damage.The affect is estimated as asubstantialmotor forthe construction of their own crimeimage. Two consequences have to be taken into consideration by talkingabout affect. On one sidepersonal affect can facilitate sensibilization towards crimephenomena. On the other side, one should not underestimatethatthere existssomeriskthat one Images of “Crime” fromKindergarten to High School 81 mayget used to certain acrimeleveland consequently blunt criminal actions. In a group discussion agirl expressesthis: 14-year-old girl: “And when you first see someone getting hit then it seems abnormal. Firstitseems bad. Later on one gets used to it and so it doesn’tseemsobad any longer. When one is confronted with it and sees it all the time in school, then it’s clear one begins to think it’s normal.” The children’s attitude concerning crimealsodepends on otherpeople’s reaction to deviantacts. Ahighschoolteachertold her point of view: Teacher: “Fighting comes impulsively.Hidingisnot planed. One is quickly ready to stopthe fight and havethe kidsshake hands,whenIstart my activity.Thenthe fight is quicklyover.” Personal affect thereforeleads to internal argumentation aboutright andwrong behaviour,and mayaccelerate thedevelopmental process. Theconclusions, which becomerelevant forone’s ownattitude, depend to aconsiderable degree on other factors, e.g. the reaction of the teachers. In addition not only direct but also indirect affect is relevant: In thescientific community the indirect affect through the in- fluenceofthe media is out of question. Media research brought out several thousand surveys,which cover this topic. Kania (2000)emphasizesthe factthatthe mass media is important and responsible for images of crime: Conceptions of crime are shaped each day by newspapers, radio news,cinemamovies and particularly by filmsontelevision.

Indirect affect Altogether the topic “crime” is very amplyrepresented in the media in Germany. In some private TV channels the rate of crimerelated telecasts even reaches about 20 per cent of the totaloftelecasts (seePfeiffer et al., 2004: 420). There is astrong tendency to presentreportsabout crimeinadramatizedway.Thisseemingly goes up to akind of manipulation of the viewer,and hasforeseeable consequences.Due to the convincingmedial representation, andbyaconcurrent lack of personal experiences in their own living environment, many viewers have aserious and partly even extremefalse impression of thecrime rate,combined with acomparatively highfear of crime. In astudy, in which 200 viewers and media persons in charge participated, Kania (2000) foundout that theestimatedrate of murder is extremely overratedbymany participants (7% of the asked personsthought that thereare more than 1million murders per year in Germany8), while the clear-up-rateisheavily underestimated. The results of a surveycarriedout by the Criminological Research Institute of Lower Saxony (KFN)

______8 Accordingtothe German Crime Statistics (PKS)there are about 2500 homicides (murders andmanslaughter) per year in Germany.Inabsolute number in 2002: 2664; in 2003:2541, including attempts. The numberofcompleted homicides were considerably lower: 914in2002, and820 in 2003. 82 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner confirm these results,indeed not in thesamedrastic way. Asked for the increase of the crimerate between 1993 and 2003, the participants over-estimate the crime rate by 21 per cent, within individual crimefields this tendency is much more pronounced. Thus the over-estimation is for auto theft with 400per cent, forcompleted sex killing with 475 per cent (see Pfeiffer et al., 2004:417). Our own study can show that children andyoung people attain aconsiderable amount of their knowledge about crimefrom thetelevision,particularly by police reports and court-shows. Although children are in virtualcontact with crime through newscasts and the newspaper, somestudents disbelieve the informational and educational function of the media. 14-year-old boy: “Fromthe newspaper Ithink we learn nothing aboutcrime, rather we learn what is brutal. Butthissaysnothing about what is not permitted. If someone does not know anythingabout crime then he wonders is it allowed or not. He doesn’tknow.Then he has to ask his parents.” Obviouslythe mass media are not the best advisers to make clear what is right and what is wrong. In this regard another media formshould be put to test.Compu- ter gameswork in asimilarway. Pfeiffer (2003: 12) speaks withthe request to be more aware to the problematic of “medial estrepement” with at leastone fifthof the12to17-year-old boys who are concernedwith this leisure timebehaviour. For some of them excessive force scenesmay have amodelling function on their own behaviouralpattern. Therefore we assumethat for somechildren the subjective crimeconceptionsare affected much more strongly by themediathan by real crime.

Peer Pressure Thestrong emotionalconnection between children and parents can continue into adolescence. However, usuallyaseparation fromthe parents’ control andinfluence takesplace;and in this phase, therelationshipwiththe peer groupbecomes more important.The membersofthe peer group become the main interaction partners particularly during the leisure time(seeMansel and Hurrelmann, 1991). Peers are important forthe internalisation of values and norms,thus socialization at this stage followsnormorientationofpeers. According to Backmann (2003),the social conditions and the respective social environment are very important upon children’s attitudes towards crimeand sanctions: for instance, the kind of leisure contacts as well as the frequency and the amount of alcohol, cigarettes anddrugs consumption, which takes place within theirrespectivecircleoffriends. From asocial learning pointofviewevery member of the peer group has the possibility of orienting and identifying himself with conformingordeviating persons (seeLamnek, 1999: 186). Images of “Crime” fromKindergarten to High School 83

Depending on how the mutual responsibilityisdetermined, friends can promote deviant behaviour and attitudes as well as offences against the law (see Reich, 2005; Tremblay, 1995). To thatextent it appearseasily to explain that individual or subculturalnorms and moral conceptions exist, which are only to asmall degree congruent with the law.However thatcontradicts Lampe’s (2002: 415) perception,who stresses – as mentioned above – that according to his opinion there is ahigh agreementbetween thechildlike opinionabout thelaw and the norms of the penal code.

Cultural andreligious influences Thedevelopment of moralconsciousness is rooted in cultureand education, says Weyers (2003: 136).Culture contributestothe processofmoral development through delivering specificroles, socialrules, activitiesand convictions. Yet the moral codes of most cultures are not completely different. Mostchildrencondemn deceptionand fraud, hard-heartedness, theftand vandalisminasimilar way. Ac- cording to Damon (2004: 56) this couldrefertoauniversal sensefor moralbeliefs. Yau and Smetana(2003) emphasizethatchildrenall over theworld distinguish morality andsocial convention in similar ways,too.But some cultural differences in children’sjustifications of normsand conventions have been observed. For example, Israeli, Arab as well as African children have been found to affirmthe importance of customsand traditiontoagreater degreethan do European and American children.Another example: Korean children’s justificationshave demonstrated agreater understanding of social status than US children. Resultsfromour ownstudy show thatthere are no significantdifferences in children’s conceptionsofgoodand bad between differentethnic groupsinkindergar- ten. However, differences do develop within the contextofsocialization and inter- nalization of subculturalfeatures. Partially these differences are already implanted early on in childhood,asthe following quotation shows: 7-year-old Turkish girl: “That’s atheft.” Shouldhehavedone that? “No otherwise Allah will kill him, if this really happens.” DoesAllahkill everythief? “Yes. Allah kill all bad guys.” Areall Christians badpeople? “Many are.” And Muslims? “No,noMuslims, no.”

Like culture the religion has an importantinfluence in early life course among young people. If religion teaches andsupports right conformity, which is not the case in each religion, this can have apositive impactonconceptionsofcrime and contributestoanormativeadapted life (see Kerner, 2005). Children have alot of religious images in theirheads.The children’s conception of good and evilisaccompanied by avery clear imagination of God. This construction is fundamentally different from adults’images. Often it is based on archaic dreamimages, which consistofreligious narrations,fairy talesand fables. 84 Klaus Bott, Kerstin Reich &Hans-Jürgen Kerner

Ourown studyconfirms that the religion plays avery important role for the development of the limit between good and evil. However it is combined with mythic aspects, which also circulatewithin peer groups and which the educators and parents do not register in theirconsequence at all. Thus aboy reports: 7-year-old boy: “Godsees something good in everyone. Hopefully by me,too.Is that right that there is aslide from heaven to hell? That’s what the children in kin- dergartensay.Thereisablackhole with monsters, isn’t there? Bad people slide into it and their souls are eaten. Is that right?” To the question, whether he alreadyasked hisparents, whether thisistrueornot theboy answersno. He wouldnot speak aboutthese themes, neither at home nor with his kindergarten teachers; only with hisfriends. With advancing age the religious and mythic aspects in the image of good and evil break downmore and more for most German students.Although 15-year-old students know – or haveheardabout – the Bible’s Ten Commandments or the Ko- ran, they do not mention thesereligious rules as relevantguidelines: In the case of doubt thelaw of thestate is more importantthan religious laws, because the violation of religiousrules does notresultindirect sanctionsand therefore the federal law has priority. Thevalue of the religion decreases during thestagesofsocialisation.Reasons or argumentations of the juveniles rarely have areligious background, but probably this is not the case with every religiousgroup.

Conclusion

Afterthis “tour d´horizon” we can sum up eventually that,extrapolatingfrom our research subjects to thegeneral situation, childrenofdifferent cultural and eth- nical origins have awell constructed and in substance similarly developed conception of justice and injusticealreadybyearly childhood. In some minor points these images deviate from each other, but in core items(meaningsomeselected offences as forinstance in the assessment of fraud, theft, vandalism)ahighdegree of agreement is visible. Thus also our part of contemporary research in this field of studysupportsthe assumption thatthere is still arather wellestablished moral foundation among people at large, despite moral disorientation and the purge of values that seem to char- acterizemodern societies. Children and juveniles construct their images of crimein different directions depending on their collective and idiosyncratic experiences, which are shaped by several external influences. Hereby social learningprocesses exert aconsiderable and lasting influence. When children grow up, the originally prevailingmythicand religious elements as well as theparentaleducation lose influenceonthe developmentprocess of the Images of “Crime” fromKindergarten to High School 85 images of crime. Conversely,the integrationinto their peer groups and the immer- sion into many if not countless hours of divergent media consumption gain lasting influenceand add starkeffects upon the dominating images of crimeinthe next agestages. In furtherresearchthe interaction of externalinfluences, which are combined with an internal readinesstodistinguishbetween justiceand injustice, requires increasing attention. For ameaningful concept of crimeprevention and moral education it seemsof utmost necessitytosynthesize the described research and point out in detail,how children and young people cometocreate and to fully internalisetheir images of crimeand criminals. In thenextstepofworktobedoneithas to be unveiled more cogently than hitherto possible whicheffects these crimeconceptionsexert on moral motivation and legal behaviourof(young) people undersometimes very adver- se conditions of late modern states andsocieties like our own.

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Piaget, J. (1980), Das Weltbilddes Kindes, Frankfurt am Main: Ullstein. Reich, K. (2005), Integrations- und Desintegrationsprozesse junger männlicher Aussiedler aus der GUS. Eine Bedingungsanalyseauf sozial-lerntheoretischer Basis, Münster: Lit- Verlag. Rössner, D. (2004), „Wissenschaftliche Modelleund allgemeine Grundlagen desNormler- nens“ [http://www.jura.uni-marburg.de/strafr/ roessner/dokumente/zuerichseminar/Ein- heit-1_wissenschaftliche_ Modelle.doc]. Rüther, W. (1981a), „Das soziale Sein unddas Kriminalitätsbewusstseinvon Bewährungs- helfern“, Bewährungshilfe 28/1981: 64-78. Rüther, W. (1981b), „Informelle Kriminalitätsnorminteressen und Studium – Zum Einfluss unterschiedlicher Studiengänge (Sozialwissenschaften und Jura) auf die Kriminalisie- rungsbereitschaft von Studenten“, Kriminalsoziologische Bibliographie, 8/1981:68-76. Rüther, W. (1981c), „Kriminalitätsbilder von Schulkindern“, Diedeutsche Schule, 11/1981: 681- 691. Schüle, C. (2004), „Die große Verbitterung. In Ostdeutschland macht sich eine neue Krankheit breit“, Die Zeit, January 8, 2004:3. Skinner, B.F. (1974), About Behaviorism,New York. Smetana, J. (1999), “The role of parents in moral development: Asocial domain analysis”, JournalofMoral Education, 28:311-321. Sujbert, M. (2004), “Development of norms concerning object acquisition in 3to10year old children: an observational study”, TiBi 8/2004 [www.dipf.de/publikationen/tibi/tibi8_sujbert.pdf]. Tremblay,R., Masse, L.,Vitaro, F. &Dobkin,P.(1995), “The impact of friends’deviant behavior on early onsetofdelinquency: Longitudinaldata from 6to13years of age“, Development and Psychopathology,4:649-667. Weyers, S. (2003),„‚Haben’und ‚Gehören’, ‚Leihen’und ‚Tauschen’, ‚Wegnehmen’ und ‚Klauen’ – Eine Fallstudiezur Entwicklungvon Besitz- und Eigentumsnormen im Vor- schulalter“,in: Dieter Dölling (ed.),Grundlagendes Rechts und Strafrechts: Festschrift für Ernst-JoachimLampe zum70. Geburtstag, Berlin: Jus Humanum. Weymann-Reichardt, B. (2004),Wenn meinem KindAngst zu schaffen macht.Angst – Definition undEinführung [www.familienhandbuch.de/cmain/f_aktuelles/a_haeufige_probleme/s_226.html]. Yau, J. &Smetana, J. (2003), “Conceptions of Moral, Social-Conventional, andPersonal Events Among ChinesePreschoolers in HongKong.”, Child Development,74(3): 647- 658.

Men’s and Women’s Theories about the Causes of Crime

The Influence of Severity and Type of the Offence on IntentionstoPunish

JÖRG HUPFELD

Introduction

Forseveral decades scientists have devoted considerable attention to public opi- niononcrime,punishment, and justice. Knowing more about these topics does not only serve scientific interests,itisalso of practical importance. Criminal law and crime related opinions of thepublic are inseparably connected to each other. Utili- tarianjustificationsofcriminal law are based upon the assumption that legal pu- nishmenthas an effect on the public’sview aboutrightand wrong. In psychologicaland criminological literature the reverseeffect is stressed as well (McKillop & Helmes, 2003: 210ff.). Firstly,public opinion on justice eventually findsits way into law(Lloyd-Bostock, 1992;Tomaino, 1997)and,secondly,the views of the public should be considered in criminal legislation and judicialdecision-making (e.g., Green, 1996). Because “thecriminal law commands the respect of the com- munityitgoverns, the law’smoralcredibility itself provides areason forlaw abidingness” (Robinson &Darley, 1998:443-444).And one important precondition to law’smoralcredibilityisthe concordance between criminal law and public opinion.Here the questions arise as to whethermen and women have different opinions that should be takenintoaccount and in case of such differences what changes have to be expectedifmore women wouldworkascriminal-courtjudges. Whilepolitical scientists were very engaged in the investigation of differences between menand women in policy preferencesand voting behaviour, criminologists paid substantiallyless attention to possible differences in crimerelated attitudes (Applegate, Cullen &Fisher, 2002: 89; Hurwitz &Smithey, 1998: 90). Althoughseveral studies have included sex as an independent variable, only afew 90 Jörg Hupfeld authors have paid particularattention to gender issues. The present empirical and theoretical approaches shed little light on the extent and nature of apossiblegender gap.For example someresearch shows that gender is unrelated to punitiveness (e.g., Quimet &Coyle, 1991). Several studies show that menare more punitive thanwomen (e.g., Blumstein&Cohen,1980; Grasmick &McGill, 1994; Hurwitz &Smithey, 1998; Sessar, 1992). Evidence also exists,however, that women are more punitive than men(e.g., Haghighi &Lopez, 1998). The existing research suggests that womeningeneral – but not always – seemtobelesspunitive, especially if they are askedtosentence specific offenders. In response to global crimerelated questions menand women often do not differ significantly (Applegate et al., 2002; Sprott, 1999). But even with respecttospecific criminal cases it is unclear when and why women and men differintheir opinions. The present paperwill try to give someanswers to these questions.Starting pointofour considerations is an analysis of the impactofcausal attribution on punitiveness. There is astrong and well- establishedconnectionbetween people’sbeliefs about why someone engages in criminal behaviourand howpeoplethink aboutpunishment (e.g., Roberts &Sta- lans,2000;Sims, 2003). Including attribution theory and moral theory in our con- siderationswewilltry to explainsomegender related differences in the causal attributions of criminal behaviour(property crimeand bodily harm)and punitiveness and show somefirst empirical results.

Structure and Impact of Subjective Theories of Crime Severalstudies have been conducted that concentratedonthe dimensionalityof subjective theories about thecauses of crime.For example Erskine (1974) wasable to differentiatebetween seven general causalfactors (breakdown of family life, bad environment, leniency of laws, drugs, mental illness, permissiveness in society, as well as povertyand unemployment), Furnhamand Henderson (1983) extractedsix factors (defective education, mentally unstable, temptation, excitement, alienation, and parents), and Oswald &Bilsky(1991) extractedfour different factors (destructive motivation, lack of planningand perspective,societalfactors,and marginal position in social life). In generalone can say that the results support Reuterman (1978), who drew the conclusion that subjectivetheoriesaboutthe causes of crime are both complex and multidimensional. However, it is difficult to drawaconclu- sion that goes beyond Reuterman’sgeneral statement. To someextent this might be due to problemsconcerning methods of explorative factor analysis.Itishard to compare different results, because the number and interpretation of the resulting factors depend on theitems that are factorised, the population that has been inves- tigated, and, last but not least, on the researcher’smethodological habits. Neverthe- less, it seemstobepossibletofind some structuralsimilarities. In accordance with Weiner (e.g., 1986) all the differentcauses people might regard as more or less im- portantcan be classified according to very fewgeneral dimensions. Thesedimen- sions are:locus of causality, controllability, and stability (see Table 1). Men’sand Women’sTheories about the Causes of Crime 91

Table1:Dimensions of causal attributions

Dimension Range of dimension

Locus of causality Internal causelocated in the person/actor ↔ External cause located in theenvironment StabilityEnduring, stablecause ↔ Unstable, variable cause Controllability Cause is under personal control ↔ Causeisuncontrollable

In hislater work Weiner (1995: 13) mentioned that it also might be useful to dif- ferentiate between controllabilityand intentionality. Vallerand&Richer (1988) and McAuley, Duncan&Russell (1992)couldshow thatthisincorporation of a fourth dimension can be justified empirically. Referring to this general theoreticalframework, even results that are based upon different populations and itemsreveal very similar structural properties (Bilsky, Hupfeld &Oswald, 1990; Oswald, 1994). Obviously subjective theories about the causes of crimeare primarilystructuredaccordingtothe locusofcausality. Within most of the different factorial results thereisaquite clear distinction between dimensions that sum up internal causes, and dimensions that consist of external causes. However, theassociationsbetween factorial results andthe other causal dimension seemtoberather ambiguous(Bilsky,Hupfeld &Oswald, 1990).This instance might be due to the fact that the placementofanexplanation in termsof causal dimensions mayvary greatly from person to person and from situation to situation (Weiner, 1983). It is adifficult task to imagine how the attributors perceived their own causal attributions in termsofunderlyingdimensions. For example “unemployment” might be seen as acontrollableorasanuncontrollable cause of criminal behaviour.Athird party’sinterpretation (e.g., aresearcher’scod- ing)might substantially miss the attributor’sunderstanding;afactthatoften leads to an effect Russel (1982:1137) called the “fundamental attributionresearcherer- ror”.Direct assessments of attributions accordingtocausal dimensions that are based on the subject’sown perceptions seemtobemuch more reliable andvalid than importance ratings of different potential causes or post hoccodings of open-ended attributions (Russell, 1991; Russell, McAuley &Tarico,1987). Despite these methodological difficulties research supports the conclusion that the different causal dimensionsmentioned above play an important role. According to Carroll &Payne(1976) sentencingdecisions (or intentions) areprimarilybased upon judgements of future risk and the perceived blameworthiness of the perpetrator.While the judgement of future risk should be based on the perceived stability of the causes of crime,the judgementofblameworthiness shouldbebased on the dimensions of locus of causality and controllability. However, according to Shaver (1985) the model shouldbemodified. Especially the judgmentofblameworthiness is, at least, influenced by the attribution of intentionality as well (see Figure 1). 92 Jörg Hupfeld

Figure 1: Attributional framework for sentencing decisions (based on Carroll &Payne, 1976 and Shaver, 1985)

causal attributions

locusof controllability intentionality blame causality case information sentencing stability future risk

Most of the hypotheses that derive from attributiontheoryhavebeenvalidated empirically. The more people stress stable, internal, controllable causes, or attribute intentionality, the more punitiveare their responses to delinquency(e.g., Carroll& Payne, 1977; Ewart &Pennington, 1987; Hupfeld, 1996; Sims, 2003).

Type of Crime Anumber of studieshave included several respondent characteristics and other influencingvariables (e.g., Furnham &Henderson, 1983; Gudjonsson, 1984; Har- diker &Webb,1979; Hollin &Howells, 1987; Reuterman, 1978; Reuterman & Cartwright,1976).However,asHollin&Howells(1987) criticized, most of the investigations treated crimeasaglobal construct. Theauthors supposed that lay explanations fordelinquency might be offence-specific. According to schemathe- ory, different types of events should activate considerations of knowledge about the specific kindofsituationthat “leads to therapid generation of one or more attributional hypotheses” (Carroll &Wiener, 1982: 235).And in fact, Hollin &Howells (1987)couldshow thatthe importanceofseveral attributional scales varied fordif- ferent types of crime. Unfortunately,seriousnessofthe offences covaried with the different offence ty- pesHollinand Howell described in their questionnaire. As Austin, Walster &Utne (1976) remarked,the observationofacriminal act gives risetoafeeling of distress because this act is regarded as aviolation of fairness andequity. Distress can be eliminated andequitycan be restored by punishment that corresponds to the pro- portionofharmordamagethe perpetratorisheld responsible for. However, attributions of responsibility or blameworthiness are influenced by the seriousness of the crime.The more serious the crime is, thegreater is the observer’sdistress, the greater is the need to hold aconcrete person responsible for the harm instead of someexternal circumstances, themoredifficult it will be to accept excuses and jus- tifications andthe greater will be theblamethat is attributed to the perpetrator (e.g., Walster, 1966;Shaver, 1970). Becauseofthisinterdependence of seriousness of crimeand causal attributions we don’tknow yettowhatdegreethe empirical results of Hollin &Howells (1987) really prove an influence of thequality or type of Men’sand Women’sTheories about the Causes of Crime 93 crimeorwhether they demonstrate an influence of quantity, as reflected by seriousness of crime.

Respondent Gender

Do subjective crimetheories depend on the gender of the judging person? If we have alook at the different investigations, this seemstobeone of themost fre- quentlyasked questions. Forexample in Reuterman’s(1978) investigation,women tended to explain crime more often by alackofparentalcare and themisuse of drugs and alcohol. Furnham&Henderson (1983)found that women preferred explanations,which referred to the delinquent’ssocialisation in the homeand the school. Even Hollin &Howells (1987: 207) found that “there were indicators of gender-differences in importanceratings”.Intheir study, womenrated the alienation scaleand theexcitement scale as more important than did men. The first scale consisted of external causes (e.g., unemployment, unequal distribution of wealth & income,and police prejudice), the second combined three more or less external (easy opportunity,bad examples, temporary insanity in crowds), and two ambiguous causes (enjoy the excitementand kicks, impress friends &peers). All in all, the different results indicate that women tend to prefer more external causes than men do. However, this gender-related effect seems to vary with the type of crime (Hollin &Howells, 1987: 206). But how can those gender-related main andinteractioneffects be explained? Sometheories concerningmoraldevelopmentand justice ideologiesmight give an answer.Based uponthe work of Chodorow (1978) CarolGilligan(1982)pointsout thattwo different dimensions of moral development are set by early social influences. Whereas development of girls is directed towardsattachmentand the achie- vementofsatisfying community, development of boys is aimed at autonomy, de- marcation and equalityofpower. Referring to this consideration, Gilligan developed her thesis of afemale ethics of care and amale ethics of justice. According to this theory,moral considerations within an ethics of careconcentrate on personal interdependence and responsibility, whereas moral considerations within an ethics of justice concentrateonformalrules and abstract rights. There hasbeen an extensive debate on whetherthose twomoral orientations are gender-specific or whether they aregender-related. Actually, recent investigationsshowcorrespondingly that most menand women canand do use both orientations. Nevertheless, there seem to be somegender-relateddifferences. While women preferanethics of care,men in general prefer an ethics of justice (e.g., Gilligan &Attanucci, 1988; Lugt-Tappeser &Jünger, 1994; Lyons, 1983). As Kathleen Daly (1989)supposed, those differ- encesinmoral reasoning should correspond with different modes of responding to crime.While considerations according to an ethics of care depend on the specific contextand trytofit in with the offender’sneeds and potential of rehabilitation, an ethics of justice is concerned with aggregate and depersonalised justice,and punish- 94 Jörg Hupfeld ment reactions that are aimed at retribution, generaldeterrenceand thesymbolical reassertion of the violated rules. But differencesinmoralorientationshould also go alongwithdifferences in theassessmentofthe offender and the causes of the offence. An ethics of care must go alongwith the readinesstotake the other’s (wrongdoer’s) perspective, whereasanethics of justice is more likely relatedtoa perspective that is taken by an independent observer (Hupfeld, 1996, 2000). Ac- cordingtothe well knownactor-observer effect (Jones &Nisbett, 1972; Storms 1973) care oriented persons should trace back an offencetolessinternal, and less stable causes,and should attribute less controllability and intentionality than persons who rely on an abstract and depersonalised ethics of justice. But the extent of aperson’sreadiness to take an orientation that is focused on the harm doer’sperspective might depend on the typeofoffence.Particularly men’s and women’sevaluations of offences that go alongwith bodilyharm might differ systematically. There are several reasons to supposethat women evaluate those actsasmore severe than mendo. For instance women are -atleast on average - inferior in physicalstrengthand so their vulnerability is larger. Furthermore they show less direct aggressive acts(e.g.,Eagly &Steffen, 1986)and evaluate eventhe display of anger more negatively than men(Davis, LaRosa&Foshee, 1992). The- reforethey should evaluate bodily harm as less normal and less excusable. But eva- luatinganoffence as more severe andlessexcusable willmakeitmoredifficult to take the harm doer’sperspective and focusonhis individual needs.Similar assumptions can be made on the basis of thework of Jones&McGillis(1976)about the attribution process in person perception. The more uncommon an action is eva- luated the stronger is thetendency to attribute internal causes and intentionality. Therefore one would expect that women should attribute more internal causes, controllability, and intentionality in acase of bodily harm than in acase of property crime. In other words,those gender-related differences that have been mentioned above should at least decrease or even reverse in the case of bodilyharm.

Empirical Study

In order to test our hypotheses we conductedafirst empiricalstudy.Asampleof 297 studentsoflaw (155women,142 men) from the universitiesofHamburg, Hannover and Bern participated in our experiment.Approximately halfofthem (147 students: 72 menand 75 women) answered aquestionnaire including four descriptions of propertycrime.The others (150students: 70 menand 80 women)answered aquestionnaire including four descriptions of bodily harm.Ineach questionnaire the four delinquent acts differed fromone another in degree of severity. For eachofthe different offencesthe participants made their causal attributions. Becauseofthe difficulties that emerge when researchers try to imagine how the respondents perceivetheirown causal attributions,wedecided to use amodified version of Russell’s(e.g., 1982) Causal Dimension Scale (CDS). This measure was Men’sand Women’sTheories about the Causes of Crime 95 designedtoassess how the attributors themselves perceived their causalattribu- tions in terms of locus of causality,stability,controllability, andintentionality.The measure consisted of nine semantic differentialscales.Locusofcausality was measured by three scales, whereas stability, controllability,and intentionality were each measured by two scales. All of them were nine point Likert scales, ranging from -4 (internal, stable, controllable, intentional) to +4 (external, variable, uncontrollable, unintentional).Inadditiontothe CDS,the questionnaireincludedratings aboutthe seriousness of the offence, and the appropriate severity of punishment. Seriousness ratings weredonebymeans of an eleven point Likert scale, ranging from 0(slight and insignificant offence) to 10 (very severe andgrave offence). The intention to punish was also measured by means of an eleven point Likert scale, ranging from 0 (exemption from punishment) to 10 (very severe punishment).

Results

Sixtestscoreswereobtainedfor eachsubject: attribution scoresoflocusofcau- sality,stability, controllability, and intentionality,aswell as scores of the perceived seriousness of the offencesand the appropriate severity of punishment. Alltestsco- res based upon the averages of the ratings across the four offences each participant had been confronted with.

Table2:ANOVA Resultsfor Attributions,Perceived Seriousnessand Intention to Punish by Offence Type and Respondent Gender

2 Dependent Variable Source F(1, 293) Significance Locusofcausality Offence type 12.81 .042 *** Gender 7.96 .026 ** Offence type*gender 15.94 .052 ***

StabilityOffence type .01 .000 n.s. Gender 8.22 .027 ** Offence type*gender .03 .000 n.s.

Controllability Offence type 14.35 .047 *** Gender 8.38 .028 ** Offence type*gender 15.82 .051 *** Intentionality Offence type 3.42 .012 (.066) Gender 1.80 .006 n.s. Offence type*gender 4.32 .015 * Seriousness of theof- Offencetype 5.06 .017 * fences Gender 5.97 .020 * Offence type*gender 12.25 .042 *** Intentiontopunish Offence type 3.737 .013 (.054) Gender 7.10 .024 ** Offence type*gender 8.09 .027 **

*p <.05;**p<.01;***p <.001. 96 Jörg Hupfeld

In afirst step, the mean ratings for the six scales according to the type of crime and respondent genderwhere compared in atwo by twofactors betweensubjects MANOVA. The multivariate analysesrevealedhighly significant main effects for gender (F(6,288) =8.71; p <.001) andfor offencetype(F(6,288) =4.84; p <.001) and ahighly significant interaction effect between gender and offence type(F(6,288) = 6.58; p <.001). In order to obtain amore discriminating picture we conducted the respective univariate analyses (ANOVAs).The results are summarized in Table 2. Although allthe significant effectswithregardtothe different test scoreswere rathersmall ( 2 between 1.5 %and 5.2 %)1,mostofthem showed very similarpat- terns. As table 2indicates, there were significantormarginally significant main effects for gender and offence type. In general, women attributed less internal causes, lessstability, controllability andintentionality. Furthermore, they regarded the different offencesasless severe and were more lenient than men. On the other hand in cases of bodily harm students generally attributedmore internal causes, more controllability, marginally more intentionality, regarded the offences as more severe andweremarginally more punitive. But withthe exception of stability attributions all themain effects must be interpreted in the lightofsignificantinteractions between gender and type of the offences.Asposthoc comparisons indicated, men’sand women’sassessments with regard to the four cases of bodilyharm were almostidentical. They were equally punitive(Mmale =3.34, Mfemale =3.38), estima- tedthe offences as equally serious(Mmale =4.87, Mfemale =5.06) and showed no significantdifferences in regard to attributions of locusofcausality (Mmale =-.44, Mfemale =-.58), controllability (Mmale =-.90, Mfemale =-1.05) and intentionality (Mmale =.59, Mfemale =.47). However, in cases of property crimewomen attributed less internalcauses(Mmale =-.49, Mfemale =.32), less controllability (Mmale =-.93, Mfemale =.01), less intentionality(Mmale =.56, Mfemale =1.11), regarded the offences as less severe(Mmale =5.09, Mfemale =4.03) and were significantly more lenient than men (Mmale =3.54, Mfemale =2.34).Figures 2and 3illustratethis general interaction pattern. Bivariateanalyses indicated that all causalattribution scoresaswellasthe perceivedseriousness of theoffences were significantlycorrelated with the intention to punish. Butbecause the different predictors were correlated as well, thequestion concerning the independent contributionsindeterminingthe intention to punish arose. In order to answer this question,weconducted ahierarchicalregressionana- lysiswith the intention to punish as adependent variable (see Table 3).

1 Eta-squared ( 2)isameasure of practical significance. It is the proportionofthe total variancethat is attributed to an effect. Men’sand Women’sTheories about the Causes of Crime 97

Figure 2: Intention to punish by offencetypeand respondentgender

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Figure 3: Attribution of intentionality by offence type and respondent gender

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0 bodily harm property crime offence type 98 Jörg Hupfeld

Table 3: Summary of Hierarchical Regression Analysis for VariablesPredicting the Intention to Punish

Variable B SE B β Step 1a Seriousness of the offences .80 .05 .66 *** Step 1b Locus of causality -.47 .12 -.27 *** Stability -.55 .11 -.30 *** Controllability -.12 .07 -.09 Intentionality -.22 .09 -.14 * Step 2 Seriousness of the offences .60 .05 .56 *** Locus of causality -.18 .10 -.10 Stability -.50 .09 -.28 *** Controllability -.01 .06 -.01 Intentionality -.09 .07 -.06

Note: R2 =.43 forstep1a; R2 =.27 for step 1b; R2 =.54 forstep2. *p<.05.**p<.01.

In step 1a we entered thevariable “seriousnessofthe offences” into themodel. Theresultsshowed that the regressionweightwas highly significantand that43% of the variance in the intention to punish was predictablefrom the perceived seriousness of the offences. The higher the seriousness ratings were, the more severe were the preferred sanctions. In step 1b seriousness ratingswereexcluded and all attributions were included as predictors.The modelnow accounted for 27% of the variance in the intention to punish. With the exception of attributionofcontrollabi- lityall regression weights were significant. The more the offences were traced back to internaland stable causesand themore intentionality was attributed – that means, the lower the testscoreswere – the more severe were the preferred sanctions. In afinalstep (2) we enteredall variables. Thetotal model accounted for 54% of the varianceinthe intention to punish. The increments of change in R2 in comparison to models 1a and 1b were significant (ps<.05). Furthermore, the decrease of standardized regression weights from steps 1a and 1b to step 2showed that the perceived seriousnessand the attribution variables shared somecommonamountof variance with the dependent variable. However,the perceivedseriousness of the offences was still thebestpredictor. Only stabilityattributions made asignificant additional contribution to the predictionofpunitiveness.

Discussion

The resultsofthisstudy generally support our theoretical considerations. Most of the predictions concerning gender related effectscould be confirmed empirically. In accordancewith Gilligan’s(1982) and Daly’s(1989) theory about gender related Men’sand Women’sTheories about the Causes of Crime 99 differences in moral orientation, menand women differed in their subjective theories aboutthe causes of crime. However, theseeffects mainly occurred within the subjects’ theories about the causes of property crime. Herewomen traced the offences back to less internal causes andattributedless controllability and intentionality to the offenders than men. Obviously theeffects wereatleast partiallymedia- ted by differences in the perceived seriousness of the offences, which proved to be the most influentialpredictor of punitiveness. Insofar ourtheoretical considerations and the empiricalresultsmight be of scientificvalue and helptounderstandsome of the mixed gender-related results. But what can we say about the practicalmeaning of the results?Applegate et al. (2002: 98) point at therelativelysmall but potentially important gap between men’sand women’sattitudes towardcrimeand punishment. They guess that wo- menmay exertahumanizing influence on correctional andcrime policymaking as they take agreater role in public policy making. In the light of the here proven interaction between gender and offencetype one might be less optimistic about the potential humanizing effects. But even with regard to property crimes gender only accounted forapproximately ten percent of the variance in punitiveness. As Hur- witz &Smithey (1998: 105) already mentioned, menand women are not radically divided in their attitudes toward crime. What we find are some systematic differences of degree, butthese gender related differences are much smaller than the differences within both gender-groups (seeFig.4).

Figure 4: Illustration of overlap between punitiveness distributions

with regard to property crimes (gender effect: 2 =.10)

r F

Punitiveness

Although our sample of law students maynot be representative for the whole public theeffectsizes areinlinewithprevious research (e.g., Applegate,Cullen & Fisher, 2002; Hurwitz &Smithey, 1998). If we have alook at the overlap between 100 Jörg Hupfeld men’sand women’ssentencingpreferences in allthe different studies there seems to be no needfor specialconsiderations of male and female wishesfor punitiveness in criminal legislation and judicial decision-making. The huge differences within bothgroups mayatfirst glance represent agreater problem with respect to the law’smoralcredibility. But contrarytowidelyheld assumptions the concordance betweenindividual outcomepreferences andactual outcomes (severity or leniency of legal punishment) has relatively little impact. What matters is the concordance between fairness claimsofthe public andactual legal procedures (e.g., Tyler, 2001).Publictrust in legal authoritiesisprimarily encouraged when they make de- cisionsthrough procedures that members of the public viewasfair. And those peoplewho trust in legalauthorities and regard them as legitimate are, as aconsequence, more law-abiding (e.g., Paternoster, Brame, Bachman &Sherman,1997; Tyler, 1990; Tyler &Darley, 2000). Comingback to the outcome-aspect let us finally make some remarks about the call forfemalecourt-judges in ordertoexert ahumanizinginfluence on judicial decision-making. Within our sample of law students relatively small but consistent differences between menand women occurred. But only afew of those students willopt for ajob as acriminal-court judge. As Oswald &Drewniak (1996) and Hupfeld (2000) could show, the general differencesbetween menand women di- minish and seem to disappear due to self-selection and job related socialization if we have alook at crimerelated attitudes and actual sentencing behaviour of male and female court judges.Certainly women should take agreater role in public policy making and should have unconfined admission to all occupational areasand all positions. Butthisisamatter of fairnessand justice. It must not andpossibly should not be justified by somepotential changesthatmight occur if women participate in aspecific societal domain.Weshould remember that about one hundred years ago almost the sameputative gender differences justified women’sexclusion from law studies and the vocational field of criminal lawinseveralEuropean countries (c.f., Hupfeld,2000). Men’sand Women’sTheories about the Causes of Crime 101

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MichaelBock

1. Human perception is culturally enriched

One only sees what he is carrying inside. This popular saying describes in a highly striking way somefundamental factsofhuman perception.What we see, even what we hear, we virtually do not observeinaphysical way,but rather by mediation of our culture. For instance, things we see contain reference-correlations that hint at practical accomplishments. Adoorhandle,atable, abook, aTVscreen. Lookingatthese objects, ourconsciousnessrepresents the transactions, the accomplishments, the working-correlations that are connected to these matters.However it is not only practical correlations of utilizationthat co-determineour seeing and hearing. When Matthias Claudius says “the forest stands blackand silent” he is expressing that naturalphenomena or aspecial appeal to ouraesthetic feelings, which might cause emotional sentiments or bring forth spiritual moods. All this can happen spontaneously – literally speaking from out of theblue – but it can also be produced, arranged and organized with intention. One fixes the Christmas tree, puts on the Christmas oratorio, places the goose in theoven and seekstocreate acomplex mood, referring to many memories. And if the Christmasspiritwill not arise, thisonlyproves thatthatone is not alwaysable to rule our feelings or even our consciousness which now and then plays evil or funny tricks on us. Even on Christ- masone only sees what he is carrying inside. Unfortunately this also affects sectors we do not normally feel happy about. Our consciousness, which also treasuresimages of people, is oftenrather infected with prejudices and stereotypes.1 The lessweknowabout somebody, the stranger he appearstous, themore ourconsciousness is willing to – under the immediate pressure of adirect confrontation – to replace the lack of knowledge by thesupposition that this personwill be just the sameasweknow from other types of his kind, skin- colour, nationality or religious belief. These might occasionally be very vicious attributes. Like this our sensual perception is permanently surrounded, primed, en- richedand filled by asteady stream of inner experiences. Psychiatrists refer to this ______1 See for example Estel, Bernd:Soziale Vorurteile undsoziale Urteile. Kritik und wissenschaftliche Grundlegung der Vorurteilsforschung. Opladen 1983. 106 Michael Bock as “hyperthym”.The relieving effect of hyperthym, which often goes unrecognized in ourdaily lives, comes to theforeincases of unwelcomesocialstereotypes. In other words, we recognize the normally relievingeffects of theseprocesses mostly in reverse,namely, by travellingtocountries withstrangeculturesinwhich the impressions that are added from our innertoour outer perception will not match, which thereby leadstothe fact that even themostsimple things cause exhaustion. On theother hand, we trytosee things as we are used to seeing them – in spite of contradictory facts – because this reduces stress and the hard work of change and reorientation.2

2. Main features concerning the “structureofplausibility” in the topicofdomesticviolence

Therewith we have already entered the subject. Moreover, our glance at human behaviour, which we label violent or criminal or threatening, is not aphysical reflection of this very behaviourinour eyes,but here it is also valid that the eye of the beholder is enriched by whathecarries concerning experiences, suppositions and fears as well as prejudices and stereo-types. At this point Idonot intend to evokethe impression of everybodybeing – to anyextentdesired – abletoinvent for himself whatever thought is necessaryfor the decorated supplement of our sensual experiences. No, here sociallyrelevant crystallizations andinstitutionalizations do exist, to theextent – as we know from the song written by Matthias Claudius – thatthere are fairly stable cultural codificationsofwhatone considerslikely and plausible in acertain sector. However, this so-called “structure of plausibility” is indeed something quite sturdy, as it is resistanttothose who want to see, listen and argue againstthe rules of its customary reading.3 If we thus proceed fromthe base that violence and especially domestic violenceisamatter of agender specific codification of behaviour, we mean that this codification constituted structureofplausibility even hasaspecial resistance because, in regard to gender specific codifica- tionsofthis sort, we are concerned withaverysensitivecoreofour personality. Thisleads to the factthatour mechanismofprotection and defence is correspondingly strong. It is indeed entirely obviousthat, in regard to these codifications,wedonot only have to deal with individual psychic forces butthat the gender specific codification of domestic violence has socially and institutionally becomereality in afairly dras- ticway: the inner-psychic representation of imagesand imaginationsfinds outside supportinbuildings and signboards of auxiliary facilities, in floors of official agen- ______2 See, for astriking example, Festinger, L./Riecken, H. W./Schachter, S.: When Proph- ecy Fails: ASocial StudyofaModern Group thatpredicted the Destruction of the World, Minnesota University Press 1956. 3 Berger, P. L./Luckmann, T. :The social construction of reality, New York 1967. The Selective Perception of Domestic Violence 107 cies, in budget amounts, in political promulgations, in alterations of enactments, in application formulas and in duty instructions. With regard to the contents,the case of domestic violence is relatively simply. The iconographic significance of the Mother Maryasanincarnation of remittance, love,warmthand security has had an outrageous meaning for theshaping of our understanding of feminine nature. It maythoroughlybethatthe direction culture and religion took in this regard took was – though in an unspecific way – traced out by phylogenetic paragons. In the expression “children and woman first” might originally be found asuccessfulsurviving expedient in order of precedence. During themiddle ages the role of women received aspecial increasewith the knight mu- tating to agentlemen and minnesang was stylized as an ethical ideal. Also in this respect the civil society inherited the court-like society. Women and violence were hereby strictly separated. The cultural penetration of modern feminism has increased gender-specific codification.Inopposition to the previousimages of womenhaving negativesides – beginning from biblicaldelivery via medieval trial for witchcraft up to the novels of thecivil age, in which womenwere seen as the seducers,integrants,witches and poisoners – these negative features are now successfully stigmatized as prejudices and therewithdelegitimized by feminism.Simultaneously, women were collectively stylized as the real victimsof world history, whereupon both views are by allmeans connected. The less the victim is by their own behaviour, the clearer is the victim’srole as apure innocent martyr. The universalund collective attribute of femalevictimization in generalcould hardly be demonstrated any more clearlythan with reference to theunbelievably huge number of women suffering as victimsofdomestic violence.The topic of domestic violence has servedinaway as asynonym for the universal and collective slavery of women, who all sufferfrom – if not implicitly physical violence – thepsychical andstructuralviolenceof the patriarchate. Woman and victim and correspondingly manand culprit incurred in this way an inseparable symbolic relationship. Being victim or culprit is hereby not only one featureamong others characterizing single experiences of single women andmen, butitcreates, as one saysinthe sociology of devious behaviour, amaster status,4 meaning adominant feature which outweighsand colours all other features and takes possessionofthe chains of association. Details maygradually vary but we are allconditioned with aqualified reflexrousing inner pictures and imaginations, as- sociations, memories of movies, newspaperreports andthe like,inwhich the womanserves as the victim and the manisthe culprit as soonasone mentions violence in general or domestic violenceinparticular. This is especially the case if it remains unclear as to thedistributionofculprit and victim in acertain situation or concerningacertain couple because nobody was there to witness the scene, or if a certain behaviour is denied, or if one triestogive it adetermined meaning, then the ______4 Becker,Howard S., Outsiders. Studies in the SociologyofDeviance, London1963. 108 Michael Bock chance of the version in which the woman is the victimand the manthe culprit increasestothe pointthatitissocially mandatory.

3. Complications 3.1Goodand evil We still havetotakenoticeofsomecomplicationsalthough they do notaffect themain issue at hand. From timeoninevery societytherehas been adistinction betweenagood and an evilsort of violence.The good sort of violence is directed at an outside enemyorone who disturbsthe internal society. This violence is executed by soldiers, policemen or specialagents. Violence thus has to be seen in a normative context, because the same action can be forbidden murder or justified death-blow.Itisnow arather interesting observationthatinacharacteristic way the genderspecific codification of violence has keptupwiththisdistinction during thelastyears. Whereasthe evil as well as thegoodsort of violence has been more or less a male monopole, the good sort of violence is now increasingly conducted by women.Heroines such as Xena, Lara CroftorCharlie’sAngels, but also anew great deal of female inspectors found on our televisions,speakadistinct language. Moreover, if aggressive female behaviourisshown – like abox to the ear or kicks against limphusbands, the murder of avicious child-molester or home-tyrant or the skilful kick into theaggressor’stesticles – violence is always shown in acontext thatappears good, at least justifiedand intelligible. The ugly,not excusableand freely chosenkind of violenceisinreturn reserved for men. In our media rascals and villains practicing violenceare almostonly representedbymen. Andthen it becomes exactly clearthat within themaincodification woman – victim and man – culprit it is also decided about the question of whatmatter in case of an exception has to be true. If it is evidentthatawoman hasshown violentbehaviour,ifthusa cognitive dissonance with regard to the main codification arises,explanationshave to be foundastowhy thisunlikely casecould occur. Sheacted underpressure, the case had to be an exception, the victim deserved it, shehad to save the children under her custodyand so on. Also psychopathological defects havetobetakeninto account.Then it is just amonster and not awoman. Things are the sameinthe case of the opposite exceptional situation: if aman becomes awoman’svictim. He then has deserved it, perhaps he is amasochist, he surelyhas provoked her,mostlikely he has given her areason through his boozing or adultery. Both cases give reason to transform the unexpected cases withornamentalaccessories,byadding possibilities of interpretation in away thatthe greatlineiskept,5 stating that womenare victimsand menare culprits. Theexceptionsprove the rule.

______5 Forthe cognitive mechanismsatworksee Festinger, Leon:ATheory of Cognitive Dissonance,Evanston 1957. The Selective Perception of Domestic Violence 109

3.2Self- andextraneous perception

And yet anothercomplication has to be observed. It is not onlyafactthatwe look at extraneous behaviour with the help of those patterns of interpretation we are wearinginour hearts, but thisalsoistrueinregard to our own behaviour. Things we do and events that happen to us appear in our own eyesinthe light of the meaning we give to this very behaviour and experience. If incidents are gender- specificallycodified, theyhave, eveninour ownexperience, badchances forbeing recognizedand classified correctlyiftheyare unexpected and in this manner do oppose aperson’sgender identity. But since womanand victim match in aperfect way, for women it is not difficult at all to look at themselves as victimsofmale violence, even if they do not make theseexperiences public becausethe existence of the relationship andmuchmore would be endangered.Hence for menitisal- readydifficult in regardtotheir self-perceptiontoadmit to that they themselves havebecome avictim of awoman’sviolence,because it painfully irritatesthe gen- deridentification, to which it definitelydoes not belongtobecome – as aman – a victim of awoman’sviolence.Atthis point of dissimulationand reinterpretation a result is singularizedasanexception.One simplyand unpretentiously inhibits and forgets or one escapes intodepression, addiction or even suicide. Thevictims themselvesaswellastheir potential addressingpartnershave to enterinto self- reflectionorcommunication and to develop empathy – notonlyinrelationtothe (male) victim digesting events that are even harder to harmonize with the male gender-role – but,inrelation to the(female)culprit they also have to give into the fear and defence causing idea of afemale aggression. As such, the complete force of culturalgrown and, via socialization inflictedgender-role stereotypes, stand againstthe self and extraneous perception of mensuffering as victimsoffemale violence.

3.3 Experts and amateurs

And yet another complication has to be considered.Itisnot thecasethatthe selective view on domestic violence can only be found among amateurs. We also find it amongsocalledfemaleand male experts,judicial and sociological representa- tivesalike.Eventhe expertsdonot have at their command the objective view on the facts of domestic violence, while not only the amateurs are laboured under a misapprehension in theirsubjective prejudices andstereotypes. No, particularly the experts have ahighly selective perception, whichpartlyiscaused by their education butpartlyalso by an experience of lifewhichalways inclines in contact with a certainkindofvictim – the female. This means that their experience is, based upon source material, also partially selective. In addition, the female experts are mostly stamped biographically and existentiallybythe feminist-movement, communalized in suitablenetworks and they occupypositions already contenting in their description and dedication to explicitly and exclusively help women andcontrol men. So 110 Michael Bock themale and female experts are indeed predestined to lookatdomestic violence with aselectiveglance, because theseculturalpre-shapings have, in acertain way, materialized in their biographical andworkingexistence.6

4. Deficiencies andmistakesinperceiving domestic violence

We now slowly approach the purpose of the entire exercise. The purefactthat everyone onlyseeswhatheiscarrying insideisinmost caseswidelytrivial and indeed insignificant. And that is when facts we see are not disputed,donot excite anybody,donot lead to unjust or scandalous consequences.But this is different with regard to the selective looks on domestic violence anchored in the hearts. Be- cause this issue is not only highly emotionally charged, butalso becauseweare at leastapproximately able to compare what kind of an imagethe highly selective view reveals and what kind of an imagethe lessselective view reveals. Isay deliberately “approximately”,for there is no non-selectiveviewatall. But we are able to compareresults of research which are not distorted or obliterated by many or few gender-specific interpretations. And if science is about to have any enlightening sense one at least generally has to be willing to acceptthatthe highly selective view of domestic violence – and namely alsothe oneofthe experts – might be brutishlyincorrectleadingtoresults that one cannot really want to maintain. If we now, armed with these pre-considerations, lookatthe social researchbase in regard to domestic violenceitstrikes us thatwehavetodeal with two different typesof empirical inquiriesleading to the deviousresultsthatresearchers fight about.On the one hand thereare inquiriesinthe so-calledclear-sighted sector,which are called “clinical” studies or “criminal-studies”.These studies report – justlike official criminal statistics do – on the base of altogether relatively fewcasesgenerally about clearly higherquotesfor menasculpritsand women as victimsofdomestic violence.7 What is measured in these studies is in fact avery “late” result of various ap- praisaland assessment procedures. Avictim must have valued acertain “culprit’s” behaviour subjectively as “violence”,maybe even as “crime”,and the victim must have, after balancing the pros and cons, decidedtoinform his social environment, a helping organisation or even the department of criminal prosecution about the incident.

______6 Bock, Michael: „Natürlich nehmen wir denMannmit“. Über Faktenresistenz und Immunisierungsstrategien bei häuslicher Gewalt; in: Siegfried Lamnek/Manuela Boatcă (Hrsg.): Geschlecht – Gewalt – Gesellschaft; Opladen 2003, S. 179-194. 7 See instead of many others Schweikert,B.: Gewaltist kein Schicksal. Ausgangsbedin- gungen, Praxisund Möglichkeiteneiner rechtlichen Intervention bei häuslicher Gewalt gegen Frauenunter besonderer Berücksichtigung von polizei- und zivilrechtlichen Befug- nissen; Baden-Baden: Nomos 2000. For completelydifferent results see Amendt, Gerhard: Scheidungsväter.InstitutfürGeschlechter- und Generationenforschung, Bremen2004. The Selective Perception of Domestic Violence 111

The other typeofempirical inquiryoperateswiththe earliestpossible point of timefor measuring.The aforementioned behaviour is here a) measured independently from thefact of being regarded (from thevictim’sorculprit’spoint of view) as “violence” or “criminal”,and b) even extolled independentlyfromthe fact if the victim confided his experienceofbeing victimized to the social environment, the helping-organisations or the departmentofcriminal prosecution. These international existing inquiries areamatter of theso-called dark sector (Dunkelfeld) inter- rogations in which aggressive behavior is measured.8 Generally these inquiries op- eratewith ascale, the so called “conflict tactics scale” (CTS). This scale contains alistofaggressive ways of behaviour presented to the ques- tionedpersons for answering. It enclosesall grades of intensity in rising order be- ginningwithverbalberatingand insults(left our here) via slightly physical aggres- sionssuch as nudging or slapping in the face up to severe formsofphysical aggression like scalding, beating andthe use of weapons. Over the course of timethe scale of thestudieshave been enriched with additional questions such as the consequences of the injuries, the motives involvedorquestions as to who started the aggressive action.9 In relation to this research institutionmeanwhile compressed de- scriptions10 do exist, as well as an empiricalmeta-analysis of the British criminologist John Archer.11

______8 An outstandingexample is Terrie E. Moffitt/AvshalomCaspi/Michael Rutter/Phil. A. Silva: SexDifferences in AntisocialBehaviour.Conduct Disorder,Delinquency, and Vio- lence in theDunedin LongitudinalStudy.Cambridge,UK: Cambridge University Press 2001. 9 The research continues.Anadditionalconfirmation of the hitherto existing findings results fromBarbara Krahé:Aggressionvon Männern und Frauen in Partnerschaften: Un- terschiede undParallelen, in: SiegfriedLamnek/Manuela Boatcă (eds.): Geschlecht – Ge- walt – Gesellschaft,Opladen 2003, p. 369-383. Besides that,differentiateinstruments of evaluations are developed (Fals-Stewart, W./Birchler, GaryR./Kelley,L.: The Timeline Followback SpousalViolenceInterviewtoAssessPhysical Aggression Between Intimate Partners: Reliabilityand Validity, in: Journal of FamilyViolence 2003, p. 131-141) as well as differenttypes of violence amongpartners are distinguished (Ridley,Carl A./Feldman, Clyde M.: Female Domestic Violence Towards Male Partners: Exploring Conflict Re- sponses and Outcomes, in:Journal of Family Violence 2003,p.157-169). 10 Straus, Murray A.: The controversyoverdomestic violence. Amethodical, theoretical, and sociology of science analysis; in: Arriaga X. B. &Oskamp S. (eds.): Violence in intimate relationships, Thousand Oaks,CA: Sage1999, p. 17-44; Fiebert, Martin S.: Ref- erences Examining Assaults by Women on theirSpouses or Male Partners:Anannotated Bibliography. Department of Psychology, California StateUniversity, Long Beach2001; Lenz,H.–J./Meyer,C.(eds.): MännlicheOpfererfahrungen. Dokumentation einer Tagung der Evangelischen Akademie Tutzingen vom 1.-3. März 2002 in Heilsbronn (Tutzinger Materialen Nr. 88), Tutzing2002; Sticher-Gil, B.: Gewalt gegen Männer im häuslichen Bereich – ein vernachlässigtes Problem!? Beiträge ausdem Fachbereich 3der Fachhoch- schule fürVerwaltung und Rechtspflege (Polizeivollzugsdienst), Volume 35, Berlin 2003; SiegfriedLamnek/Manuela Boatcă (eds.): Geschlecht – Gewalt – Gesellschaft, Opladen 2003; Kelly, Linda (2003):Disabusing the DefinitionofDomestic Abuse: – HowWomen Batter Men andthe Role of the Feminist State. Florida State University,Law Review – 112 Michael Bock

Accordingly womenand mendisplay the CTS operationalized aggressive ways of behaviouralmost equally,women even abit more. Varietiesinthe research’s design of the analysis included altogether82inquiries conducted in comparison only fewdeviationsofthisentirereport.12 In the noticed offences there is predomi- nance for women(62% of the reported cases were women).13 Another important reportwas that in most casesthe violence was executed mutuallybyboth partners.14 Both types of research measure “violence” at different points of time.Soitisnot to be wondered at, that they also result in gender-specificdeviant quotes of culprits andvictims.Thisisbecause womenand menperceive, due to the above-mentioned different sociability of victim’sexperiences with gender-roles, objective equal be- haviourdifferentiallyand assess it in adifferent manner. Indeed for most female victimsthe step into communication and public is not easy.Shame aboutwhathas occurred in thepartnership and fearofanuncertain future also restrain many women from this step.But if they finally overcometheir hesitations(or if they consideritadvantageous becauseofstrategic reasons), this “outing” for women often means an improvement of their material,psychic, social and legal situation. This is why they, more oftenthan men, choose to go public, searching for helpamong “experts” and courts. With menthe entire situation ap- pearstotally different. Mostmalevictimsare alreadyprevented by their gender- role-identity to see themselves as victim’sofa(their) woman’sviolence, because thisisnot consistentwith culturalcodification of respected male identity. The own selective viewmakes it impossible formen to define avictim-experience as one and callitbyits name.But even if they take thehurdles,they do neither find communicative resonance nor social or legalsupport. Nobodybelieves them;they are laughed at, in their social environment, at experts of both genderand at the court, because the eyes and hearts of the alien observers are ruled by imaginations and picturesthat portray domestic violenceasmale violence.Itisnot understanding thatmale victims will find: on the contrary,the differentsoundingculturalcodifi- cation producesthe suspicion of having becomeavictim by one’sown fault, having “deserved” it, whileconcerned menmay choose betweenthe rolesofthe “ras- cal” and the “fool”.Men fear this kind of secondary victimization and the loss of a respectablemale identity regardingthemselves and their person.

______Summer 2003;Lamnek, Siegfried/Ottermann, Ralf:TatortFamilie. – HäuslicheGewaltim gesellschaftlichen Kontext. Leske+Budrich 2004. 11 Archer, John: Sex differences in aggression betweenheterosexual partners: Ameta- analytic review; Psychological Bulletin 2000,p.651-680. 12 Archer, John (cf. note 11),tables 3and 6, pages 657and 660. 13 Archer, John (cf. note 11),tables 4, 5and 7, pages 658, 659 and 661. 14 Evidence at Archer (cf. note 11), p. 653 f. The Selective Perception of Domestic Violence 113

5. Critics and anti-critics

Againstdarksector studies heavyscruples have already been advanced. This is in so farnot surprising as thesestudies deeply affect the empirical and moral base- ment of an only on female victimsand male culprits focused violence-preventing policy. Critics pass sentence mostly on the measure instrument, that is,the CTS (conflicttactics scale).15 Traditional criticism is that whereaswomen use aggressive ways of behaviour onlyintheir defenceorCTS would not consider thispointaswellasthe degree of the caused injuries.But there is still anothermuchmoredeeply rooted level of critics. CTS measures only aggressive acts but not violence itself.Only the subjective interpretationand attribution of aggressiveacts as violence manufactures violence outofonlyphysicaland insofar trivial events. Only womenwould use this interpretation for their victim-experiences and becauseofthis, only women canactually be suitable victims.16 This interpretation is in so farright, as the victim-experience of women indeed becomes visible even with acultural pre-formed look, as well in self-perceptionasinextraneous perception. But it is very easy to recognize that this argument is not suitedtoneutralize or minimize the findings of CTS. Because even if mendid not call or assesthe corresponding occurrences as “violence” or “crime”, becauseamong them theculturalcodification doesnot provide for it, it does not mean that a) mendonot interpret these occurrences at all andb)that they do not however feel these occurrences as massive violations of their physical and psychical integrity. It has to be added that certain phenomenon of the exercise of power, such as the so called “psychic” or “structural” violence,which no doubtescapeCTS,are by no means distributed obviously to the debit of women. Nobody can deny awoman’s ability to tighten access to food, communication or sexuality,cut off contacts, damage the partner’sreputation, hit him in the centre of his identity, humiliate and de- grade him. Especially forwomen the police and the courtare at their disposal. Sys- tematic experience-researchinvestigations of this phenomenon however are not acquainted.17 The methodical problem, that we know little about the wayinwhich mendi- gest18 their victim-experience or how they deal with the special scenarios of psy- ______15 For adetailed, even controversial, discussion concerning this question look into the literature cited in note 10. 16 Hagemann-White, C.: European Research on the PrevalenceofViolence against Women, in: Violence AgainstWomen 2001,p.732-759. 17 Cf. however the “qualitative” study of Schenk, S.: Gewaltgegen Männer in hetero- sexuellenPartnerschaften – Deutungs- und Verarbeitungsmuster; Pädagogische Diplomar- beit an der UniversitätMünster 2002. 18 At this point it has to be hinted at the utterance of therapeutical working authors, like those foundinthe volumeofLenz, H.-J./Meier, C. (eds.): Männliche Opfererfahrungen. 114 Michael Bock chic or structural violence of their female partners, is apart of the social problem itself. Becausefor mennot only the institutional aid-centresare missing, but even theverbalre-assuranceinapublic discourse, in which one can socially anchor his experiences and simultaneously seize, name and understand and assimilate them. Men form of resonance in which they can transfer theirsuffering into language and communications.Thus the special force of the CTS-resultsbecomes obvious. Be- cause within answering these completely on behaviour reduced incidents the cul- turalselections interferealot less, the results reflect even more brightly the reality instead of what the concerned persons think about it or takeitfor. Howeverone may, using serious sources, say that the fact that domestic violence is “male violence against women and children” is an artifact of culturally pre-shaped selection and perception andbecause of this is nothing else but amyth that doesnot withstand reality. Imyself do not at all,asalready mentioned, consider the objections against CTS striking.But in thelastanalysisthingsdonot depend upon this fact at all. Because even highly-reputed feminist female scholars, who interpret the state of research in adifferent wayand favour instead studies of CTS rather the inquiry of Tjaden &Thoenness,19 ex- pressonthe stateofresearchasubstantially more differentiated and moderate approach. They accept,strictlyspeaking, that one hasforgotten the male victims and that they deserve the same care, protection and compassion as thefemale victims.20 And even if one takes the numbers of the bright-sightedsector from the police intervention-projects as a basis, onecan see, that menbecomeinarelevant degree victimsofdomestic violence and that acompletely institutionalized ignoringofthisphenomenonisneither empirically nor morally justified. If one proceeds from 50% or 20% of malevictimsisoflittle importance for the practical postponed questions – as long as one considers thematall.

6. Feedback between images and reality

For abetter understanding of theexperience-research findings Ibriefly want to put them in agreater criminological context, because they then start to speak in another way. Just like in otherrespectsinthe field of delinquency, namely in the case of domestic violence,the deviousactionofthe individuals and the social re-

______Tutzinger Materialien Nr. 88, Tutzing2002; Heinrich-Böll-Stiftung (ed.): Mann oder Op- fer? Berlin 2002. Stanko,Elizabeth, A./Hoedell, K.: Assault on men. Masculine and Male Victimization; British Journal of Criminology 1993, p. 400-415shouldbementioned here, were it wasshown that male victims view their experiences as victimsfromthe beginning in a “male-frame” (see p. 403 ff.). 19 Tjaden, Patricia/Thoennes, Nancy:Full Report of the Prevalence,Incidence andCon- sequences of ViolenceAgainst Women, NationalInstitute of Justice, US Departmentof Justice 2000. 20 See, for example, Gloor, D./Meier, H.:Gewaltbetroffene Männer – wissenschaftliche undgesellschaftlich-politische Einblickeineine Debatte, in: Praxisdes Familienrechts Volume3,2003, p. 526-547. The Selective Perception of Domestic Violence 115 production of normative expectations are connected in self-reinforcing feedback- loops.21 Especially the supposedly reliable numbers about the exclusive concernof women are politically exploited by experts, mediaoutlets and different representation boardsand academies through to soccer clubs. By their interventionthe majority of the entire themeisconnected to archaic emotions of anger, indignation and revenge. To this thesuitedpictures andcases are added. Tears, blueeyes, discon- certed kids,knightlypolicemen andconcerned moderators arrange an archaic myth, in which goodand evilare clearly defined and clearlydivided. Evilmen ter- rorize and beat goodwomen. Fully automatically politicalpressure and the need foraction arise, because scandalousconditionshave to be removed. Laws have to be passed or enforced, intervention-projects have to be initiated, plans foraction have to be defined and implemented, the curricula of social professionsand the duty-instructionsofthe police have accordingly to be rearmed for the content of the myth can definitely gain afooting in theheads andheartsofthosewho at last decideaboutthe alternatives of shrugging or investigating,suspendingorindicting, acquitting or convict- ing. They have to know where evil can be found and what it looks like, and to convey upon it its righteous penalty. And decisive for the efficiencyofthis mechanism is thecircumstancethatitisnot aquestion of having this or that opinion, but of looking deeply into the psychic apparatus and in the gender-roles in which emotions areanchored. So in the enditisnot surprising that male victimscan not, even in regard of themselves, admit the truth of having become avictim of awoman (inner hurdles). They anticipate thelacking communicative, socialand legal resonance, runninga possible utterance of their victim experience idle or even letting it fall back on themselves (extraneoushurdles).Onits waytothe clear-sighted sector they are filtered at this or thatspotsothat we again receive agender-specific obvious clear- sightedsector, andthere we have aperpetualmotion, in which numbers and amyth about menand woman reciprocally urgeone another on.

______21 Hess, H./Scheerer, S.: Wasist Kriminalität? Skizze einer konstruktivistischenKrimi- nalitätstheorie, Kriminologisches Journal 1997, p. 83-155.The use of this very theoryin the field of domestic violence usesthe labeling approach onceagain, whichpossibly possesses in the area of gender-specific discrimination amuchhigher potential of explanation as in theareaofclass-specific discrimination (cf. Bock,Michael: “Natürlich nehmen wir den Mann mit”. Über Faktenresistenz und Immunisierungsstrategienbei häuslicher Ge- walt, in: Siegfried Lamnek, Manuela Boatcă (eds.): Geschlecht – Gewalt – Gesellschaft, Opladen 2003, p. 179-194). 116 Michael Bock

7. Counterproductive effects of aviolence-preventing policy only addressed to female victims

Theactualviolence-preventing policy is not only selective in asense that it fades outmale victimsand female culprits,but it is highly counterproductiveinits ef- fectseven there, where it is indeed working. This is mostly true in casesoffocus- ing on lasting effects. Measuresofcrisis-intervention areatthis point definitely not sufficientoroften have exactlythose counterproductive effects, because they intervene with agreatdealofintensity and with mostly destructiveconsequences into a complicated psycho-social event which mostly has along prehistory. The problems involved, which in the last analysis escalateinto grave forms of physical aggression or depressed scenarios of psychic or structuralviolence, are rooted in psychic features (such as: low self-confidence, needfor control, “negative emotion”),22 in determined patterns of behaviour(such as:destructive communication-types, learned pattern of violence), and in situational debit-factors (“life-events”,alcohol), as well as in thelackofconstructiveovercomingstrategies. All this cannot be opposed with isolated repressive measures like reprimand of housings or criminal prosecution. The problematic patternoffemaleand male be- haviourcan effectively only be changed if the joint “history” of aconflict relationship is also jointly worked on. That it willnot be possibleinmanycases is one thing, another thing is, if one pursues strategies, which systematically prevent this.23 Alleffortsfor preventionand all forms of “systemic” therapy or mediation will most probably be nipped in the bud from the outset or will be made impossible, if a singular gender-division among the involved “experts” is from the beginningar- ranged between an evil male culprit and agoodfemalevictim,and if this group sees it only as theirtasktomake this arrangementalso legally and socially mandatory.

______22 This construct existed according to the famous Dunedin-Study(cf. note 8) with men andwomen,aswell as with culprits and victimsofpartnership-violenceinlikemanners. Compare Moffitt, Terrie E./Robins,Richard W. Caspi, A.: ACouples AnalysisofPartner Abusewith Implications for Abuse-Prevention Policy, in: Criminologyand Public Policy 2001,p.5-36. 23 ”Intimate relationships are dynamic andreciprocal, inherentlyambivalent, oftencon- flicted andcontradictory.Iftheyare abusive, certain behaviour or responses in one partner provokeaviolent reaction in the other. Thus violence is arelationship issue, not amale issue. To presume that intimate violence is aone-way streetorunidirectional… is acon- ceptualfallacy” (Lupri, Eugen: Institutional ResistancetoAcknowledge Male Abuse. Pa- per presentedatthe Counter-RoundtableConference on Domestic Violence, Calgary,Al- berta, Canada, May 7, 2004,unpublished). The Selective Perception of Domestic Violence 117

The existing help and counseling institutions show considerably different inter- ventionconcepts, butthe official “line” of daily policy in this area is as ever rather doctrineand ideologically singularly addressed to the segregationand punishment of men, while apreventive need in regard to womenisgenerally not even in the slightest degree considered. The consequences are within sight. In thecaseofbothpartnersenteringinto new partnerships the samemechanism will occur, because the existing measures of violence-prevention canonlyproduce female winnersand male losers,but no process of learning partners.

8. Conclusion

Men become, to amuchlarger extent than is customarily assumed, victimsof theirfemalepartner’saggressive behaviour. Thepredominantimage of domestic violence originated in acultural pre-shaped look,the one-sidedness of which has onlybeenslowly acquaintedand willbeevenmoreslowly corrected.Men do not perceive themselves as victimsorthey stay silent because of fear of stigmatization and mocking. Female and male experts in social institutions and in the departments of criminal prosecution do not reckon with male victimsand thereforedonot see them at all or even hold them responsible fortheir ownfate. This leads to afatal circulation: because even fewer menthanwomen find their way into communication, intosocialinstitutions or to justice. Statistics of these institutionsshow almost only female victims, leading to the fact stereotypes are reinforced with then leads to the fact that male victimswould ratherstaysilentthanexpose themselves to the danger of a “second victimization”. Also not adequately considered are elderly citizens or children who fall victim to female “violence”.Due to space constraints they havenot been specifically mentioned in this paper, butthe results in this regardcomplete the picture that altogether agender- specific violence-preventing policy rulesour society,inwhich male victimsand female culprits aresystematically fadedout.24 The selective view, which only notices menas culprits, has fatal consequences for children who are mistreated by theirmothers, because in this regard neitherthey nor their fathershaveachance againstthe prejudices of the institutions in chargeofgranting attention to their grief. Indeed, every male and female police-officer knowshow hard it is to withdraw awoman withchildren from circulation, because this easily mayinvolve adifficult tail of juvenile help and child protection that one does not feel equippedfor and in charge of. In thecase of suspicion, arrest- ingthe mansaves the need for trouble with those in command andwith the lawyers.In this regard it is striking that the legislatureoverlooked mistreatedchildren in their vio- ______24 Cf. Müller, Joachim: Kinder, Frauen, Männer – Gewaltschutz ohne Tabus, in: Sieg- fried Lamnek/Manuela Boatcă (Eds.): Geschlecht – Gewalt – Gesellschaft, Opladen 2003, p. 507-532. 118 Michael Bock lence preventing laws as well as in regard of intervention-projects. Thus with maximum excitementand concern the atrocity of “domestic” violence andmeasures of abolition are proclaimed, though onlywomen are referred to as victims, while children and other persons living in the same “home” are not. From Crime Science to Detective Fiction The CaseofAgatha Christie

Daniel M. Vyleta

1. CrimeScience andthe DetectiveNovel

Once Sherlock Holmes arrived in Karlsruhe,hemadehis way throughthe thick throng of peopletowardsthe court building. Aroundhim theremilledafeverishly excited crowd that awaited the verdict with impatient suspense. Then, from somewhere over there, cameamuffled moan that said ‘guilty’, and travelled on through the crowds. …Sherlock Holmes shook hishead. Behind hisangular forehead, strange thoughts.Upthere aman found guiltyofacapital crime, down here thou- sandsofpeoplewho awaited the fate of the one who fought for hislife in the criminal court’s high-ceilingedauditorium.1

Connoisseurs of Sir Arthur Conan Doyle’s oeuvre need not fear: the quote is not from someobscure and long lost story that would narrate the detective’sGerman exploits. Rather it is part of the many hundred imitations of Conan Doyle’s creation thatflooded the continent in the early decades of the twentieth century. Here, at least,the author, Albert Lichtenstein,madenoattempts to hide thestory’s true provenance, excusing his choice of main character by statingthat Holmes was ‘after all themost famous type [ofdetective],’ and would therefore best suit his purposes.2 In fact the story was part of ascholarly workoncrime fiction entitled: ‘Of thenature and origins of the present-daydetective novel’. It was published in Mu- nichin1908aspartofaseries entitled Grenzfragen der Literatur und Medizin – “Topics that border literature and medicine”. What exactly was it doing there? The short answer is that the author thought the overlapbetween medicine – especially psychiatry – and crime fiction significant, and also maintained that good crimefiction hadaneducative role to play.Itcould lay bare the criminal’s psyche,

______1 Albert Lichtenstein, VomWesen undWerden des heutigen Kriminalromans, Grenz- fragen der Literatur und Medizin, Heft 7(Munich 1908), 52.All translationsare my own unlessotherwiseindicated. 2 Ibid. 120 Daniel M. Vyleta explain his actions with referencetohis mental organisation and, giventhe close relationship of crimeand degeneration, explain to thereaderthose degenerative statesthat fall under psychiatry’s area of expertise(ethical andmental underdevel- opment, epilepticequivalents, states of unconscious action)…3 Apagelater he states: Here Ilocatethe educative value of detective fiction: that it demonstrates in what sort of web of accusations and evidence one can get caught up, how stupidities and hasty acts thateverybody commits fromtime to time can grow into crushingproof of one’s guilt.[…] Before amajor trial that decides over life and death, give every juror, everyjudge and prosecutor agood crime novel, so that theylearn something about the defendant’s psyche.4 What is striking about these two proposed benefitsofreading crimefiction,5 is that they stand rooted in quite distinct and frequently opposed conceptions of criminality. The first quote speaks of theclose connection between degeneration and criminality: its roots lie in acriminological sciencethatdescribes thecriminal as physiologically or psychologically differentfromthe main populationand that was dedicated to identifying and cataloguing this difference. The second quotation is concerned about the errors of the judicial system, caused by an inadequate interpretation of both witness statements and material evidence, and aflawed psycho- logicalevaluationofthe defendantwho is hereimplicitlyheld to be a “normal”, rational actor. This view of crime owed much to an Austrian scholar named Hans Grosswho,justbeforethe turnofthe century, had inauguratedascience he called ‘criminalistics’. The storyofcriminology is well known and willrequirebut abaresketch: throughout thenineteenthcentury attempts had been made in various European countries to point to organic origins for criminal disposition.6 In the 1870s aver- sion of this line of thoughtfound coherenttheoretical expression in theworkof Cesare Lombroso who proposed thatcriminals were evolutionary throwbacks who could be identified through anumberofanatomicaland psychologicalmarkers.7 Thedetails of Lombroso’s work were quickly dismissed in most countries apart from his native Italy, andmodels in which the forces of milieu and heredity inter- ______3 Ibid, 49. 4 Ibid, 50. 5 One should take note,however,that according to Lichtenstein bad crimefiction can have quite theoppositeeffect, that is to dull theminds of the greatunwashedmasses. Cf. ibid., 47. 6 On the historyofnineteenth century criminology pre-Lombroso, see: Daniel M Vyleta, ‘The Cultural HistoryofCrime,’ in: Stefan Berger (ed.), TheBlackwellCompan- ion to Nineteenth CenturyEurope (forthcoming: London 2005), Richard Wetzell, Invent- ing the Criminal, 17-72. 7 On Lombroso, see: Mary Gibson, Born to Crime, Cesare Lombroso and the Origins of Biological Criminality (Westport, Ct. 2002).; David GHorn, The Criminal Body, Lombro- so and the Anatomy of Deviance (London2003). From Crime Science to Detective Fiction:The Case of Agatha Christie 121 acted to produce criminals – aboveall,perhaps, the theory of degeneration – be- cameprominent.8 By the early years of the twentieth century, a “medicalisation” of thediscourse of crimewas taking place: doctors, especiallypsychiatrists, were replacing jurists as the primary experts on the issueofcrime.9 From this perspective, the article’s exploration of the ‘border topics’between medicine and detective fiction is perhaps less astonishing than it at firstappears. The disciplineofcriminalisticsoriginated in acritique of thecriminologicalas- sumption that criminals were necessarily ‘different’ from the main populationand reflected anxieties aboutthe pit-falls of ajudicialsystem that relied on laymen both forits evidenceand forits verdicts.10 Consequently it concentrated on the process of investigating crime,including both thesecuring and evaluationofphysical evidence and the psychological assessment of witness statements, court-room dynamics and suspect interviews. The introduction to the 1911Englishtranslation of Hans Gross’s Criminal Psychology,first publishedinGrazin1898, put it thus: The psychology of the judge enters into theconsideration as influentially as the psychologyofthe offender.…There is the problem of evidence: the abilityofawitness to observe and recount an incident, and the distortionstowhich such report is liable througherrors of sense,confusionofinference with observation,weakness of judgement, prepossession, emotional interest, excitement, or an abnormal mental condition.11 In other words, Gross’s psychology amounted to the ‘phenomenological’ study of normal, rational actors, whosedesires,emotions, and physical responses to anxiety etc. could be interpretedgiven the right observatory experience. Criminals and non-criminals were here subjected to the samegaze and assumed to be subject to the samerules of psychology. If the ideological preoccupations of criminology communicate abourgeois attempt to control society by “othering” undesirables in a manner Foucault has described,12 the criminalistic projectwas fuelled by anxiety about its inability to control the judicial processand highlightsthe dichotomybe- tween thebourgeoisexpertwho was capableofrooting out crimethanks to his spe-

______8 See especially:Robert Nye, A. Nye, Crime, Madnessand Politics in Modern France, The Medical Concept of National Decline (Princeton 1984), 98 ff. 9 See: RichardFWetzell, ‘The Medicalization of Criminal LawReforminImperial Germany’,in: Norbert Finzsch &Robert Jütte (eds.), Institutions of Confinement, Hospi- tals,Asylums,and PrisonsinWestern Europe and North America 1500-1950(Cambridge 1996), pp. 275-83. 10 No academichistory of ‘criminalistics’ exists to date, though anumber of scholars have worked on various forensic and identification technologies that belong to this field of inquiry. For an anecdotalsurvey of criminalistics,see:JürgenThorwald, Das Jahrhundert der Detektive, Weg und Abenteuer derKriminalistik (Zurich 1964). 11 Hans Gross, Criminal Psychology, trans. HoraceMKallen, introd. by Joseph Jastrow (London1911), p. x. 12 See especiallyMichelFoucault, Disciplineand Punish, trans. A. Sheridan (New York 1977). 122 Daniel M. Vyleta cialisteducation andthe ignorant masses whose clumsiness andmisperceptions fostered criminal activities.13 In his study of detective fiction and its relation to medicine,Lichtensteinovertly acknowledgedhis acquaintancewithand debt to Gross’swork. He didnot,however, resolvethe tensionbetween the two conceptualisationsofcriminality that he invoked:itremains unclear whether the propersubject of the detective yarn is the abnormality of the detective’s antagonist, or thedepiction of the intricacies of the investigative process, psychologicaland other. Hisown attempt at afictionalisation of thefamousHau trialwith which Istarted thepaper further illustrates this con- ceptualconfusion. In the first halfofthisfictional critique of arealcourt case, Sherlock Holmes proves mathematically that the accused could not havecommit- ted thecrime by analysing the trajectory of the gun shot he is meant to have fired, by calculatingthe discrepanciesoftimeresultingfrom the suggested escape route and by unmasking akey witness as unreliable.14 In thesecondhalf Holmes provides equally impressiveargumentsfor the defendant’s congenitalabnormality: he standsrevealedasadegenerate who cannot be held responsible for his acts.15 One is reminded of the summing up delivered by Dmitri Karamazov’s defence council, Fetyukovich, in Dostoevsky’s BrothersKaramazov:the esteemed Fetyukovich proves first that his client simply could not havemurdered hisfather and then, that evenifhedid murder him, that it wasn’t his fault. If Lichtenstein’s account is confused, it maynevertheless be worthwhile trying to trace theconnections between fictions of crime and the two sciences of crime sketched above.From its very beginningscriminology displayed an interest in using fictionalaccountsofcrime for its own ends. AlreadyinLombroso one finds a tendency to scour the world of literature in ordertouse its descriptionsofdeviants as evidence forvarious proposed theories.Thisstepwas possible due to adual assumption: the first, that fiction could and wishedtoreflect reality as it truly was, andsecond, that awriter’s intuition could apprehend scientific truths aboutman even if they had no rigorous scientific framework forwhatevertheyintuited. Lom- broso’sauthorofchoice wasZola: his naturalism, explicitly conceived as aquasi- scientific review of the ills thatshapedcontemporary French society andtied to a materialistanthropology,constituted aneat equivalent to Lombroso’s own project. Indeed thetwo authorswereusing similar sources – e.g. phrenology and degener- acytheory – fortheir respective intellectual projects. Eventuallydirect exchange between the two authors took place. Thus La Bête Humaine (1890) reads like a primer for awhole host of criminological theories,while in turn serving as illustra-

______13 One should note,inpassing, that Gross did acceptthat certain criminals – above all habitual petty criminals andvagrants – were degenerative. See: Hans Gross, ‘Degeneration undDeportation’, in:Gesammelte Aufsätze Vol. II, 70-76. 14 Lichtenstein, Vom Wesen,56-8. 15 Ibid, 58-60. From Crime Science to Detective Fiction:The Case of Agatha Christie 123 tive evidence in several of Lombroso’slate works,most notablyhis La donnade- linquente from 1893.16 Moreover, it was somethingofapsychiatric andcriminologicalsport aroundthe turn of the last century to diagnosefamousliterary figures whowere involved in crimes(and sometimes their authors, whowerenot)accordingtothe new medical insightsinto deviance.Ibsen, Schiller, Goethe andothersweresubjected to this strategy, with experts quarrelling over whether The Robber’s Karl Moor was para- noid or merely degenerate,and whether his brothercould be technically classified as a‘moral idiot’.17 Even the potential abnormality of Jesus was queried in this fashion, whosebehaviour wasdeemedsufficiently deviant to warrantsuch an investigation.18 Freud’scomments on Oedipus and Hamlet do, of course, also belong in this tradition with the important difference thatthey did notserve to mark these characters as substantially deviant from the behavioural norm.19 None of these textsbelonged to ‘whodunit’ fiction proper. Above all thismight havebeenafunctionofthe genre’stendency to focus upon arational investigator whoseantagonists were apprehendednot duetothe diagnosisoftheir anthropological or psychological abnormalities,but through inductive logic that relied on their being rational actors themselves.One canfeelthistension runningthrough Lichtenstein’s article:heispleased to note that Poe was a‘psychopath’ and an ‘epileptic’and thatDupin, too,could be classifiedasasick man; similarly pleased to classify Conan Doyle’s ‘Mariarty’[sic!] as a‘born criminal’.20 When it comesto discussing why Conan Doyle and Poe’s fictionserve as genre models, however, thisabnormalityiscarefully ignored. Indeed,itisthe ‘Purloined Letter’thatisheld up as theparadigmexample fordetective fiction, preciselybecause it hinges on a piece of psychologicalanalysis – here,however,wecannot but note that the psychology in question (Dupin’sassessment of hisadversary’s mind and consequent identificationofhis most likely hidingplace forthe stolenletter)isthe sort of ap-

______16 Cf. CesareLombroso andGuglielmoFerrero, Criminal woman, the Prostitute, and the Normal Woman, trans. Nicole Hahn Rafter and Mary Gibson(Durham,NC2004), 163. The same work contains several referencestoZola’streatment of prostitution in Nana. 17 Erich Wulffen, Kriminalpsychologie und Psychopathologie in Schillers Räubern (Halle 1907);review of ibid. by Paul Näcke in: Archiv für Kriminalanthropologieund Kri- minalistik Vol27(1907), p. 347. See also: Paul Julius Möbius, Über das Pathologische bei Goethe (Leipzig 1989); Martin Richard Möbius,Steckbriefe, erlassen hinter dreißig litera- rischen ÜbelthäterngemeingefährlicherNatur(Berlin1900); Wilhelm Weygandt, Die ab- normen Charaktere bei Ibsen (Wiesbaden1907); Erich Wulffen,Ibsens Nora vor dem Strafrichter und Psychiater (Halle 1907). 18 Schäfer, Jesus in psychiatrischer Bedeutung (Berlin 1910). 19 Sigmund Freud, The Interpretation of Dreams,trans. Joyce Crick (Oxford 1999), 201-4. 20 Lichtenstein, Vom Wesen,18. 124 Daniel M. Vyleta plied,everyday psychology Grossdescribed in his oeuvre rather than the psychol- ogyofpathology.21 It should here be noted that the lack of compatibility between criminological knowledgeand earlydetective fictionnot primarilyafunctionofthe need to make crimes accessible for thereader, i.e. the need to avoid the useofspecialist knowl- edgethat would debar the readers fromthe feelingthatwithenoughthought they could have anticipated the solution themselves. This only became crucial in the ‘clue-puzzle’ literature of the 1920s onwards in which readerswereactively invited to shadow the investigative process and challenged to beatthe detectiveto“it”. In an earlier tradition expert knowledge was permissible – indeed central to the genre – albeit expert knowledgethatwas primarily of acriminalistic kind. Rather, the problemwas thatonceareader was trained in the anthropometric/psychiatric gaze required of thecriminologist,there wouldbenosenseofmystery left: in this epistemological regimecrimes could be solved with no reference to all the details and clues that definedthe detectiveasone whocan seeorder in chaos. In other words, thesolutiontothe case couldnot alreadybeannounced in asuspect’s anthropological deformities that belonged to aclosed semantic systeminwhich the same symptomsalways pointed to the same criminal typology.22 The tension between wishingtoaccommodate contemporary psychiatric and criminological knowledgeand being unable to do so because this would derail the genre conventionsonwhich the fiction was built, shows up in various stories and novels themselves. In Conan Doyle, for instance, it is noticeablethat those yarns which are specifically dedicated to the introductionofamaster criminal – who is oftendescribed in physical andpsychologicaltermsthat make acriminological “reading” plausible – are consistently stories that do not contain areal puzzle element. This is true for the ‘Final Problem’ (1891), as it is for ‘The Adventure of Charles Augustus Milverton’ (1899) – both are at heartsuspense and adventure stories, since therecan neverbeany doubt about the identity of the villain. There do exist afew exceptions in whichcredible attemptsweremade to tell “proper” detectivestories that were compatible withacriminologicalunderstanding of criminals such as SangiacomoOlivieri work that was modelled around Lombroso’s theories.These, however, were too stale to ever standachanceofbecomingmain- stream fare.Crimefictiononly learned how to effectivelyco-optacriminological ______21 Ibid., 9-11. 22 Ronald RThomas’ Detective Fiction and theRiseofForensicScience (Cambridge 1999)argues in aseriesofcasesamples that criminological knowledge was appropriated by nineteenth century detective fiction. In my view, his study conflates criminological and criminalistic knowledges and thus obscures their epistemological differences. It also over- estimates the degree to which continental criminological tropes were received andaccepted in nineteenth century Britain.For adiscussionofthe epistemological underpinnings of nineteenth centurydetective fiction (especially Poe and Conan Doyle) see also:Lawrence Frank, VictorianDetective Fiction and the Nature of Evidence, The Scientific Investi- gations of Poe, Dickens, andDoyle (New York 2003). From Crime Science to Detective Fiction:The Case of Agatha Christie 125 perspective in the so-called‘psychothriller’. This subgenreemerged in the work of ‘AnthonyBerkely’ [Cox] a.k.a. Francis Iles in the early1930s andcameinto its owninthe 1940sand 50sinthe work of such writersasMargaretMillar.23 Here the criminal’s identity was not the central mystery;rather the writer’s project was precisely to explore his/her psychopathology, thus converting the whodunit into the whydunit. Criminalistics – that knowledge of crimewhich focused on the investigative process – wasnaturallyfar more compatible with the mystery,becauseboth fo- cusedonclues.That is not to say that the fictional appropriation of specialist criminalistic knowledge was an entirely smoothaffair. Mistakes – frustrating to Gross and his followers24 – were made: Sherlock Holmesin‘The Adventure of the NorwoodBuilder’dismisses fingerprints as useless,25 and as late as 1923 Agatha Christie’s Murder on the Links mistakesdactyloscopy for the Bertillon identification system.26 Despitesuch blunders it was enormously popular in crimefiction from the turn of the century onwards to include highly technicalcriminalistic knowledge.27 This was primarily knowledge to do with murder weapons, crime sites and material evidence and was not infrequentlygleanedfromthe pages of Gross’s publications themselves.28 His books had quickly been translated and disseminated throughout most of Europe duringthe opening decade of thetwentieth century, even as English (and someFrench) detective fiction floodedGermany and theHabsburgEmpire. Poisons, gunshot analyses,blood-splatter patterns; the importance of accurate sketches of the crime scene;electrical gimmicks and the powers of suggestion – they all made it into fiction, in more or less accurate fashion. Sometimesthis love forcriminalistic expertise did in fact overtake theformalcon- ventions of the detective yarn andcametodominate the fiction: the best example forthis are the novels by R. Austin Freeman from the 1910s.Freeman inverted the structure of the mystery story: the first part depicted the crimeasitwas being committed;inthe secondpartitwas solved with the help of awide varieties of

______23 Stephen Knight,CrimeFiction 1800-2000,Detection, Death, Diversity (New York 2004), 100-1, 146 ff. 24 Gross overtly criticalofdetective fiction thinking it disseminated myth and misin- formation.Cf. private letter cited in Lichtenstein, VomWesen, 48-9. 25 Cf. Ian Ousby’s discussion of the use of science in Holmes stories in: Bloodhounds in Heaven, The Detective in English Fiction from Godwin to Doyle (Cambridge, Mass. 1976), 152-5. 26 AgathaChristie, Murder on the Links(1923) in: TheComplete Battles of Hastings Vol.1(London2003), 200. 27 This goes as far back as Conan Doyle’s 1887 AStudy in Scarlet, in which Holmesis credited with the authorship of criminalistic worksofanaturethatGross andfollowers would soonmake it their businesstoproduce. Oneshouldalsonotethatthere is adirect reference to GrossinArthur Conan Doyle, ‘The Adventure of the Dancing Men’ (1903). 28 Cf. Martin Green, Mountain of Truth, The Counterculturebegins, Ascona 1900-20 (London1986), 21. 126 Daniel M. Vyleta technicalanalyses, utilisinganything from anatomical expertise to the criminalistic technology of reconstructing themurderer’s soles from footprints he had left behind.29 It was not until the rise of clue-puzzlemysteriesthat this sort of appropriation of criminalistic expertise went out of fashion, because it stood in the way of the reader’sparticipation in the mystery:the expert in cigarette ashes andcriminal cantwas to be displaced by onewhose expertisefocused on the hearts of men.

2. Agatha Christie’sClue Puzzles and CrimeScience Onemight well ask at this pointwhether there was any interaction between the two types of knowledge about the criminal as crimefiction continued to develop, as wellaswhatrolethe psychological ideas of Gross’s programmemight have played on thefictionalstage. Both questionsare large ones, andIwill hereaddress them by considering the work of DameAgathaChristie. The choice is not entirely random: Christie wrote over long decades andperfected agenre whichonthe surface wasleast likely to utilise criminologicalortechnicalforensic knowledge. She startedher writing careeratatime when English scholars werestillverybusydi- gesting both continental criminology and criminalistics: theirserious reception datesfromthe teens of the twentieth century, andChristie made her novelistic de- but shortly after, with anovel she wrote during the Great War. Christie also has the additional benefitofhaving provided us with her own musings on crimefiction as well as on the nature of criminality in her Autobiography,published in 1977 but compiled during the 1950s and 60s. In fact, AgathaChristie’s An Autobiography is not coy about her opinionscon- cerning the nature of crime. Somewhatsurprisingly,perhaps, the bookwould lead one to expecther to favour acriminological approach to writing of criminality, perhapssomething along the lines of the above mentioned psychothrillers. ‘As a result of writing crimebooks onegetsinterested in the study of criminology,’ she states in the opening of akey section that outlines her beliefs concerning the moti- vationsand characteristics of criminals.30 Here she states unequivocallythat there exists such athing as a “born” criminal, and that such born criminals are primarily to be foundamong murderers: Thereseemstobenodoubt that there are those, like Richard IIIasShakespeare showshim,who do indeed say:‘Evilbethou my Good. […]Ican suspend judge- mentonthosewho kill…Iamwilling to believe that they are made that way,that theyare born with adisability, for which,perhaps,one shouldpitythem;but even then, Ithink, not spare them …Wehave taken thelives of wolves in this country; we didn’ttry to teach the wolf to lie down with the lamb.31 ______29 RAustin Freeman, The SingingBone (1912). Earlier work by Freeman alreadyem- ployslots of criminalistic detail, without yetinverting the storystructure. 30 AgathaChristie, An Autobiography (London1977), 452. 31 Ibid., 453. From Crime Science to Detective Fiction:The Case of Agatha Christie 127

Interestingly she goes on to describe those‘taintedwith the germsofruthless- ness and hatred …’ in termsreminiscent of Lombroso’s atavistic criminal, i.e. as primitive throwbacks who are unsuited forcivilisation (‘what we regard as defects were once qualities. …the evil mannowadays maybethe successful manofthe past’) before recommending thatmedicalexperiments maybethe best way for so- cietytoput suchman-beasts to wholesomeuse.32 Significantly,however, Christie did not practice what we here find herpreach- ing.After allthe Queen of Crime is famous not for psychothrillers but for the clue- puzzle, that most English of detectivegenresthat cruciallydepends on the identification of acriminalsimplyonthe basisoffactsthat are openly accessible to the reader, as well as on the accurateevaluation of motive,i.e.onasort of psychology that assumesrational self-determination andhence is quite distinct from the psychiatric search for deviance that dominated criminology post-Lombroso.33 In order to examine this apparentdiscrepancy further, we need to consult Christie’sstories. Iwill here primarily focus on those written in the1920s and30s thoughsomeref- erence to later works will be made. Working through Christie’s fictional output withaneye towardsher position re- gardingcriminological and criminalistic knowledge, onenotes severaltendencies. The first is apenchant, ritually repeated, to mark criminals as anatomicallyorpsy- chologically deviantinthe abstract. Hardly awork of Christie’sdoes not have a character float the possibility of a “homicidal monomaniac”,usual as ared her- ring.34 In the novels and stories from the 1920s the spectreofdegeneracy, or traits of hereditary “weakness” are routinely raised.35 As Freudian language became more and more widespread throughout Britain, references to “neurosis” also be- camemoreand more frequent in Christie’s work.36 Poirot himself repeatedly and from as earlyonas1923, refers to a‘deformation of the grey cells’thatmarks

______32 Ibid., 454. 33 For discussions of the construction andmarkers of Christie’s version of clue-puzzles, see: Dennis Porter, The Pursuit of Crime, Art and Ideology in Detective Fiction (New Ha- ven1981),134-47; Stephen Knight,Formand Ideology in DetectiveFiction(London 1980), 107 ff.;Pierre Bayard, Who killed RogerAckroyd?, The mystery behind theAgatha Christie mystery,trans. Carol Cosman(New York 2000), partsIand II. 34 E.g.: TheBig Four (1927) in: The Complete Battles of Hastings Vol. 1, 360; Peril at End House(1932) in: ibid.,563; And then there were none (London2003[1939]),72, 135, 144, 165; TheABC Murders (London 2001 [1936]), 80; Lord Edgeware Dies (1933) in: The Complete Battle of HastingsVol. 2(London 2004), 84. 35 E.g.: The Mysterious Affair at Styles (1920) in:The Complete Battle of Hastings Vol. 1, 98;The Murder of Roger Ackroyd(London 2002 [1926]), 42, 368. 36 E.g.: Peril at End House, 548; Death on the Nile (1937) in: Poirot in the Orient (Lon- don2001),399;FiveLittlePigs (London 2001 [1941]), 43, 115. See my comments on Freudianlanguage towards the end of this paper. 128 Daniel M. Vyleta murderers.37 Christie was thus partaking in apop-scientific version of the crimino- logicalknowledge of deviance that we also find expressedinher Autobiography. At the sametimeitisacknowledged, however,that this congenital deviance has no bearing on the detectiveprocess: ‘Itisthe affair’ Poirotstates in Peril at End House (1932) ‘for the doctor’, notthe detective.38 In other words, the clue-puzzle is notaffected by these hidden anthropological factors. Secondly,there is adismissal,fromChristie’s secondnovel onwards, of physical cluesand henceofcriminalistic expertisepertainingtothese. Not fingerprints and blood tests but ‘psychology’ is what solves crimes, as Poirot(andinslightly different language Miss Marple) reiterates timeand again.39 Scholars have on the whole been dismissive of the claim,pointing out that nothing comparable to clinicalpsy- chological analysis ever takesplaceinChristie’s work.40 Indeed the word ‘psychology’ seems to have asomewhatunstablemeaning here: at times,for instance, it refers to the mental disposition – the temperament if you will – of agiven racial group. Slavs, ‘Latins’, Gypsies and above allJews are singled out in avariety of novels and judgement is passed about their “natures”.41 Elsewherethe word ‘psychology’ can stretch to refertothe powers of heredity to shape disposition within a specific family.42 Most frequently, however, ‘psychology’ refers to thestudy of motive and motivation via close observation, i.e. to a‘normal-psychological semiotics’ in Gross’s phrase.43 In Five Little Pigs (1942/3), forexample, the entire novel is structured around thepremise that the various witnesses’truefeelings aboutthe murder victim will be involuntarilydisclosed in theirrespectiveaccounts of theeventssurrounding thecrime,and hence that these can be reconstructed by an attentive reader.44 Within this understanding of thetermthere is acertain amount of tension as to whether one is assessing aspecific personality or universally human psychological traits that are simply refracted differently through

______37 Murder on the Links, 221; The Mystery of theBlue Train [1928] in: Poirot, the French Connection (London 2003), 326. Other characters also voice comparable opinions, e.g. that crimeisamatter of ‘internalgland secretion’.Lord Edgeware Dies, 85. 38 Peril at End House, 530. 39 For the emergence of this theme, see: Murder on theLinks, 179, 211. 40 See: Stephen Knight,Formand Ideology,111. 41 E.g.: The Mysterious AffairatStyles, 15, 112, 123; The Murder of Roger Ackroyd, 209; Lord Edgeware Dies, 100; Death on the Nile (1937)in: Poirotinthe Orient, 365; TheyDoitwith Mirrors (1952), in: TheMiss Marple Omnibus Vol.2 (London1997), 600, 628-31. 42 TheMysterious AffairatStyles, 166; Murder on theLinks, 303. 43 Hans Gross, Criminalpsychologie(Graz 1898), 51. 44 Five Little Pigs, 56, 62, 73, 86, 96. In The Big Four (1927) the premise is inverted and it is the criminals struggle to reconstructthe personalities of thePoirot and Hastings; once again their exertions mirror the reader’s own endeavour (409, 437, 451). From Crime Science to Detective Fiction:The Case of Agatha Christie 129 an individual.45 Either way, most of Christie’s plots hinge on the discovery of dis- simulation,orplay-acting of somekind or another. Within the genre of the “Manor House Murder” thisishardly suprising – afterall at least one person on the novel’s list of interviewees always has to be lying – butitisworth noting that this is also oneofthe keyroles “psychology” playsinGross’s oeuvre.46 Hand in hand with thisendorsementofapsychological model reminiscent of the Grossianmode,theregoes, in Christie’s detective fiction, an overt hostility to a clinical psychology that threatenstoreduceculpability to amatter of biological or psychological accident. This is most evident, perhaps, in They Do it withMirrors (1952) that is set in apsychiatric hospital for juvenile delinquents, though earlier workssuchasMurder at theVicarage (1930) already anticipate this derision.47 There are exceptions, of course. It is pretty clear, for instance,that one is meant to thinkofAnd thenthere werenone’s Judge Wargrave as ‘morally insane’ (a late nineteenth centurynotion) who, from earlychildhood,was possessedbya‘mania’ to kill.48 In most novelsher genre howeverdemands that ‘everyone is apotential murderer’, an idea that shemakesexplicit in her final Poirot novel, Curtain,in which both Hastings andPoirotare seduced to killsomeone(the lattersuccess- fully).49 Similarly, Murder on the Orient Express (1934), in which all witnesses are alsoculprits,strongly invokesthis idea. How then is one to explain the discrepancy between Christie’sprivate preoccu- pationsabout criminalswhose deviance wasphysiologically rooted and her fiction that relied on the psychologicalnormality of itsculprits? WasChristie simply a victim of her genre, forevercondemned to ridicule herprivate beliefs, or was she aware of the tension between rivalmodels of criminality andable to putittouse for her own ends? One sort of answer to these questions can be provided through aclose studyof the1936 The ABC Murders. The ABC Murders is aremarkable book because its theme – serial murder – seemstoimmediately challengeatleasttwo key genre conventionsofthe clue-puzzle: one, that theact of murder and the processofinves- ______45 See, for example: Murder on the Links,234; The Murder of Roger Ackroyd, 124-5; Lord Edgeware Dies, 9-10, 99; Five Little Pigs, 56, 96. Occasionally there are also allu- sions to judgingindividualpsychological reactions according to the person’s classand gender. Cf. Peril at End House, 575; Five Little Pigs, 147, 230. 46 On the linksbetween this model of psychologyand the bourgeois concept of the autonomousself, see: Stephen Knight, Form and Ideology, 124. 47 Cf. ibid,124-30. Theydoitwith Mirrors, 532, 614; Murder in theVicarage (London 2005 [1930]), 56 ff. 48 And then there were none, 301-3. TheydoitwithMirrors also at times implies that the juvenile delinquents,while not responsible forthe murder, are “naturallycriminal” (649);The Mysteryofthe Blue Train includes athrowawayline that the criminal is a‘kil- lerbyinstinct’(368). 49 Curtain (published in 1975, but written in 1946). Cf. Pierre Bayard, Who killed, 113 ff. See also Death on theNile, 249. 130 Daniel M. Vyleta tigation be consecutiverather than overlapping, and two, that murder is committed for somecommonsensical reason everyone can understand, i.e. almost invariably outofgreed.50 Indeed, in two scenes Poirot is confronted with an “alienist” – i.e. a psychiatrist; Christie’suse of theantiquatedtermisitself interesting – whowaxes lyrical aboutthe inner, if perverse logic, of ‘mania’.51 In order to add to the sense that the book signals adeparturefrom the genre, Christie juxtaposes thethird person narrative of the suspected killer, the epilepticAlexander BonaparteCust, with the first-personinvestigative account narrated by trustyHastings. Thisthird person narrative leaves little doubt as to thesuspect’s confused mental state. In truth the manhas nothing to do with the killings that areperpetrated by apsychologically normal actorwho wishes to obscurehis motive for doing away with arich brother by committing an apparently senseless seriesofmurders. Thesuspect, Alexander Bonapart Cust, is merely astooge who, through the powers of suggestion, has been talked intobelieving himself guiltyand thus has been turned into theperfectscape- goat by the cunning murderer. What we have here,then, is aboveall agamewith reader expectations. Christie was relying on the fact that (like herself)readers were aware of criminological nar- rativesofabnormal murderers – however bastardised – and used these precon- ceptions to veil the true crimewhich is discoveredbyPoirot’scriminalistic method of inquiring intonormalpsychological motives for crime. In other words, Christie here enacts adynamic that usually is merely described in many of her other novels: usually it is other characters who float atheory of a‘homicidal maniac’ that the reader recognises as part of contemporaryparlance but also has every reason to distrust, since it is never thedetectivewho voicesthissuspicion.Here, by contrast, it is thereader him/herself who is seduced into believinginacriminologicalac- count of the ABC killings.52 At the sametime, for aficionados of the genre, the primesuspect’s abnormality is itself ahint that he cannot be the murderer, precisely because if he were this would violate the very fabricofthe clue-puzzlemys- tery. In clue-puzzles allirrationalactsmust be proven to have rational purposeafter all. This logic is already present in Christie’sdebut novel in which theseemingly irrationalhatred one character bears for another is actuallyaclue to her complicity with (and love for) the murderer.53 We find, then, that Christie is aware of the tension betweencriminologicalnarra- tivessuchasthose she voices in An Autobiography andher genre’sdemands,and ______50 Cf. Porter, The Pursuit of Crime, 196; Knight,Formand Ideology, 114, 124. The ABCMurders makes this disruption of the genre explicit. At one point Poirot complains that the rules of questioning no longerapplyifthe murders are committed by amaniac (64). 51 The ABC Murders, 80-2, 125-6. 52 Less overtly, APocket Full of Rye(1953) and ACaribbean Mystery (1964) emulate this strategy. 53 The Mysterious Affair at Styles, 98. From Crime Science to Detective Fiction:The Case of Agatha Christie 131 not above makingthemthe centrestage in the cat and mouse gamebetween author andreaderthatcharacterises thegenre. 54 At thesametime, however, we find Christie carving out aspace forherselfinwhich acertainkindofcriminalabnor- mality can be reconciledwith thenormalpsychologicalsemiotics required of the clue-puzzle. This is achieved throughaquasi-Freudian gloss thatpermeates The ABC Murders and many of her other novels. Theperpetrator is normal,but he is characterised by an ‘inferiority complex’ and an emotional immaturity thatother Christie’s killers share.55 There is, in other words,achildhoodstory to be told about many of Christie’s killers that shedslight on their fallfromgrace. At the sametime, theepileptic Alexander BonaparteCustisexplicitly marked as avictim of his overbearingmother – i.e. his abnormality is both congenital and acquired in childhood. Quasi-Freudian themes thus allow Christie (who elsewherewas not above ridiculing Freudian insights even as she plundered them56)tocreate culprits who were both “normal”and “abnormal” and to place them into acontinuum that connected them,however tentatively, to atruedeviant such as Cust. Curtain’s killer provides another good example: on the one hand his mind is systematically associated with Poirot’s own, as he is locked in adeadly combatofwits, on the other achildhood narrativeisinsertedlateinthe book that highlights once againthe presence of adominant mother along with the child’s delicacy and physical handi- cap.57 Once againChristie thus creates amurderer who walks the line between pa- thologyand normalcy, even as the book affirmsthe notion that all personsare ca- pableoftakinganother person’slife.58

3. Conclusion

This paper has tried to relate the narratives of crimeendorsed by detective fiction to two rival conceptionsofcriminality thatemerged in the Fin-de-Siècle.Ithas argued that detectivefiction couldonlymakelimited use of criminological knowl- ______54 I.e. the clue-puzzle asks readers lesstoinvestigate the crime that it posits as its central mystery,than to decode the means by which the author tries to trick themand thus solvethe mystery through their superiorexpertise of the genre and its possibilities. 55 The ABC Murders, 75, 308-12; Five Little Pigs, 335. 56 E.g.: Peril at End Hose, 581, 623; Death on theNile, 224, 253, 325. Another good example for this dual dynamic is Five Little Pigs in which awitnessed is playfully(and wrongly) marked as a‘repressed spinster’(43) but Poirot’ssolution to the riddlemakesuse of an associative technique that engages the ‘subconscious mind’ (323). 57 Curtain, 745. 58 There was yetanother way in which Christie bridged the gulf separating abnormal criminals and the genre convention that designates everyone to be apotential murderer: habit. In her novelsshe repeatedlyinvokes apsychological mechanism through which thoseofnormalpsychological disposition become habituated killers once the initial moral inhibitions have been surmounted. For its most explicitexposition, see LordEdgeware Dies,162. 132 Daniel M. Vyleta edge, while it absorbed aspects of criminalistic knowledge very rapidly. It has further argued that theuse made of ‘psychology’inclue-puzzle fiction such as Christie’snovels shouldbeunderstood in criminalistic terms.Using theexample of Agatha Christie, this paper has also suggested thatwiththe growingdissemination of popularversionsofcriminologicalknowledge,thisknowledge could itselfbe utilised as aplot device in detectivefiction.Finally,ithas shown that Freudian language could be used to mediate the gulf separating criminalistic and crimino- logicalconceptions of criminals. Howthisgulfwas mediated in other fields and genres – e.g. by policeprofessionals,and judges,innewspaper reports and cinema – awaits further investigation. The Ideological Underpinnings of Prisons and their Inmates from Charles Dickens’ Novels to Twentieth-Century Film

Jan Alber

1. Introduction

According to O’Sullivan,fictionalprison narratives maygenerate “social and cultural understandings of the legitimacy or illegitimacy of prison as aform of punishment” (2001:330). In this paper,Iwill analyse the representation of prisonsand their inmates in Charles Dickens’novels and prison filmsofthe twentieth century because, as Iwill show, the ideological (pro-oranti-prison)underpinnings of such narrativescentrally correlate with the way in which they represent theprisonand its population. An investigation of Dickens’ novels and prison filmsofthe twentieth century is important because they significantly influence the cognitive categoriesoftheir recipients and thus the popular understanding of theprison. Forexample, Dickens’ novels, in which prisons proliferate, must have been amajorinfluence on the ‘normal’ citizen’s image of the prison because they addressed amassaudience long before film arrived. Poole points out that serial publication ensured Dickens’ novels “acultural currency greatly in excess of its merely literary reputation” (1983: 150).1 Similarly, with regard to prison films, Wilson and O’Sullivan argue that they simply [...]cannot assume that the general publichavemoreaccess to and interest in factual informationabout thenature of prison rather than itsfictional representation.Ifany- thing, the reverseislikely to be true. Giventhisassumption, we need to consider the possibility that fictional representations of prison are an important source of these ideas and understandings. (2004: 14)2

______1 Smithalsospeaks of “the importance of Dickens’ contribution to society’ssystemof circulation”,and believes thathis novels “do not simplyreflect reality, they constitute reality”(2003: 5; 14, emphasis in the original, J.A.). One might actuallyrefer to Dickens’ nov- elsinterms of the Hollywood movies (or perhaps TV series) of the Victorian age. 2 For similar views on the influence of prison films on popular views of the prison see Cheatwood (1998: 209-10); King(1999: 165);Mathiesen (2000: 143-44); O’Sullivan (2001: 318) and Mason (2003: 278-79). 134 Jan Alber

This paperisstructuredasfollows: in section 2, Ishall provide adefinition of the loaded term ‘ideology’; in sections 3and 4, Iwillthenanalyse theimagesofpris- onsand theirinmatesinDickens’novels and prison filmsofthe twentieth century. In section 5, Iwill summarise my findings with regard to thepolitical instrumentality of these narratives.

2. What is Ideology?

Althusserarguesthatideologiesare imaginary “worldoutlooks” that do not “cor- respondtoreality” and alwaysexist “in an apparatus,and its practice, or practices” (1984: 36-40).Inhis reading of Althusser, Hall additionally points out that we are usually unaware of the workings of ideology and (wrongly) assumethat we are free subjects: We arenot ourselves awareofthe rules andsystems of classification of an ideology [...].Weexperience ideologyasifitemanates freely and spontaneouslyfrom within us,asifwewere its free subjects, ‘working by ourselves’. Actually, we are spoken by and spokenfor, in the ideological discourses which await us even at our birth, into which we are born and find our place. (Hall 1985: 106-9) Similarly, James Kavanagh (1995: 311) andAnn Kaplan use the term ‘ideology’ not to referto“beliefspeopleconsciouslyhold but to the mythsthat asociety lives by, as if these myths referred to somenatural,unproblematic ‘reality’” (Kaplan 1983: 12-13). As Iwill show, prison narratives promote ideologicalbeliefs. First,theymay participate in aphilanthropic discourse thatcritiques prisons by presenting(or constructing) them as unjust institutions,while prisonersare depictedasthe poor and innocent victimsofafundamentally evil society.Second, prison narratives mayparticipate in aconservative (or reactionary) discourse of subtlepro-prison propagandawhichconstructsprisoners as irreclaimably depraved criminals who threaten the safety of law-abidingcitizens, thusarguing that prisonsconstitute a societal necessity. Thesetwo ideologicalpositionsare of course theoreticalabstractionsor‘ideal types’ in the senseofMax Weber (1922: 190-91). The representationsofprisons and inmates in prison narratives tend to be more ambiguous and have to be located on ascale between thesetwo ideological extreme points, i.e. the radical discourse that locates the evil in society, and the conservative discourse which insists on the evil in human nature. The following statement by BellHooks aboutfilms in gene- ralobviously applies to prison novels andfilms as well.According to Hooks, a “film mayhave incredibly revolutionary standpoints merged with conservative ones. This mingling of standpoints is oftenwhatmakes it hard for audiences to critically ‘read’ the overall filmic narrative”(1996: 3). Such statements presuppose thattoday, we are not infiltratedbythe one and only ‘false consciousness’; rather, various ideologies mayexist at the sametime. Indeed, according to Hall, The Ideological Underpinnings of Prisonsand theirInmates 135

[...] the notionofthe dominant ideology and the subordinatedideology is an inadequate way of representing the complex interplay of different ideological discourses and formations in anymodern developed society.[...]They [...]oftendraw [...]ona common, shared repertoire of concepts,rearticulating and disarticulating them within differentsystems of difference or equivalence. (1985: 104) Even for alate Marxistlike Eagleton, theterm ‘ideology’ no longer refers to the perniciouslegitimating strategies of the dominant class but to “arealm of contesta- tion and negotiation, in which there is aconstant busy traffic: meanings and values arestolen, transformed, appropriated across the frontiersofdifferent classes and groups,surrendered, repossessed, reinflected” (1991:101). At this point,Iwould like to note that Idonot think that narrative structures, tools or techniques, i.e. purelyformalfeatures, are in themselves bound up with a certainideology. Like Cohn (1995a; 1995b), Ihave my doubts about the linkage of certain narrative features to structuralattributes of thepenitentiary idea as epito- mised in Bentham’s Panopticon (1791). Criticslike Hale (1982: 50; 62),Seltzer (1984),Bender (1987; 1995), Miller(1988: 24) andJarvis (2004: 173), on the other hand, think that aconnection between the formalfeatures of novels and films and pro-prisonideologies exist. Forexample, Seltzerbelieves that the omniscient narrator of novels like Dickens’isanauthoritarian tyrant and argues that [...] the most powerful tactic of supervision achieved by the traditional realist novel inheres in its dominant technique of narration – the style of ‘omniscient narration’ that grants thenarrative voiceanunlimited authority over the novel’s ‘world,’ a worldthoroughlyknown and thoroughlymasteredbythe panoptic‘eye’ of the narration. (1984: 54) Similarly, somefilmcritics argue that prisonfilms are the visual productsofso- cietiesthatpunishunder theveil of secrecy, and follow „the pleasure of observing apunishmentbeing enacted” (Hale 1982: 50).According to Jarvis, “the spectator enters an enclosed spacetoobserve images of enclosed bodies, to witness the certainty of punishmentfor acting out fantasies of deviance” (2004: 173). Hale even draws aparallelbetween cinemaaudiencesand the idea of ‘panoptic’ vision. More specifically, he argues that in prisonfilms, “everything is disclosed [...] as if we were visitors to Bentham’s Panopticon,aninvited audience in the zoo of punishment” (1982: 62). Admittedly, prison filmsallow us access to aforbidden realm, namely to thesecretive worldofthe prison. However, they do not necessarily invite us to enjoy the punishmentof‘deviant’ bodies; rather, they mayoccasionallyshed acriticallight on the punishments we ‘witness’. Ithus refuse to link purely formal features to any type of ideology.From atheo- reticalperspective,all typesofnarrative can continue the work of the prison or critique thelogic of imprisonment. On theone hand,theymay allow us to incorporate otherness, i.e. to “sympathize with themarginalized and the condemned” (Fludernik and Olson 2004: xxv); but on the otherhand,theycan also be usedto objectify and reify the prisoners’otherness(or ‘deviance’). In otherwords, the question of whether narrativesreproduce or critiquethe prison does notdependon 136 Jan Alber narrative structures or techniques but on the context in which these structures and techniques are used. In what follows,Iwillthus focusonthe representation of prisons and their inmates in order to determinethe pro- or anti-prison ideologies that are spread by the narratives in question.

3. The Representation of PrisonersinDickens’ Novels3

In this section, Iwill concentrateonthe representation of prisons and their inmates in Dickens’ novel Little Dorrit (1855-57).4 Dickens has traditionally been associated with somesortofliberal-conservative consensus: critics have frequently argued that he wants „prisons as simply neither too hard nor too easy” (Tambling 1994:128). In what follows, Iwill showthat in most of hisnovels(andincontrast to hisnon-fictional writings), Dickens is rather critical of theprisonand participa- tesinthe philanthropicdiscourse mentioned in the previous section. Little Dorrit presents us with two prison settings, namelyadungeon-like jail in Marseilles and the Marshalsea debtors’ prison in London. The narrator describes the gloomyprison in Marseilles, which houses two inmates, Rigaud and Cavaletto, as follows:„Besidesthe twomen, anotched anddisfiguredbench,immoveable fromthe wall with adraught-board rudely hacked upon it with aknife, aset of draughts, made of old buttons and soup-bones, aset of dominoes, two mats, and twoorthree wine bottles” (Dickens 1998: 16). ‘He’ then points outthat “that was all the chamber held, exclusiveofrats andother unseen vermin, in addition to the seen vermin,the two men” (16; my emphasis, J.A.). At firstglance, theclassificati- on of the prisoners as vermin seems to suggest that they are evil villainswho justify the existenceofprisons.However, uponcloser inspection, we learnthatCavaletto is ‘only’ asmuggler. Also,heturns out to be one of the liveliest presences in this sombre novel: eveninjail, he joyfully singssongswiththe prison officer’s daughter (21), while later on, he is describedas“achirping, easy, hopeful little fellow” (295). The prisoner Rigaud is usually classified as acriminaldevil who suffers no re- morse, guilt or fear for what he did.5 However, in actual fact, he remains entirely enigmatic. On the one hand, he claimstobea„gentleman” (22),while on the other

______3 Earlier versions of section3and4werepublished in my Narrating the Prison: Role and RepresentationinCharles Dickens’Novels, Twentieth-Century Fiction, and Film.I would like to thank Cambria Press for permission to reproduce this material. 4 Iwillfocus on Little Dorrit but also refer to Oliver Twist (1837-38), David Copper- field (1849-50)and ATaleofTwo Cities (1859). Generally speaking, andincomparison with other nineteenth-centurynovels, it is in Dickens’ fictionthatthe prison figuresmost prominently. 5 See Trilling (1955: 56), Collins (1962: 83; 250; 280-81;288)and Cockshut (1998: 48). The Ideological Underpinnings of Prisonsand theirInmates 137 hand, he tellsCavaletto thathekilled aman,married his rich widow and then killed her (24-25). If this story is true, Rigaud might indeed be classified as amonster and his existence mayserve as an argument in favour of prisons.Fromthisperspective, the novel might argue that the situation in prisonisbad; nevertheless,society needs prisons becauseofthe irreclaimable depravity of criminals like Rigaud.The idea that prisons are asocietal necessity is also expressed by the landlady of alodge in Chalon. She points out [...] that there are people who have no human heart, and whomust be crushed like savage beasts and cleared out of the way. Theyare few, Ihope; but Ihave seen (in this world here whereIfindmyself, and even at the little BreakofDay)that there aresuchpeople. And Idonot doubtthatthis man – whatever they call him,Iforget his name [Rigaud, J.A.] – is one of them. (131) However, when Cavaletto and Rigaud meet again outside prison (134-38), we do not learnwhether Rigaud has actuallycommitted any crimeatall. Also, the question of how he managed to get out of prison remains unanswered. Maybe he was “deeplywronged” (136)and finallyreleased; or he was guilty but managed to escape;orhewas guilty but pronounced not guilty. The narratordoesnot address thesepossibilities. Since we are never in apositiontofindout whether Rigaud is a real criminal, the landlady’s statement could alsoberead as acritique of the ways in which law-abidingcitizens classifyother people as criminals. The assumption that Rigaud has “no human heart” seems to be basedonprejudice rather than veri- fiable facts.6 When the narrator turns to the Marshalsea, we learn that‘he’israthercriticalof this institution. In an aside,hetells us that “it is gone now, and the world is none the worsewithoutit” (68). The prisonisinarotten state “because the timehad rather outgrown the strong cells and the blind alley” (68). Furthermore, the imprisonment of debtors likeWilliam Dorrit and Arthur Clennam is representedasbeing unjust; they are imprisonedfor debt under laws that are completely impolitic. Imprisoned debtorsare not in apositiontoearn any moneytopay their debts. These prisoners arehardlyevil criminals, villainsorruffians. “The inmates of the Marshalsea are there because they owemoneytheycan’t pay, notbecause they are guilty of murder, theft or grievous bodily harm”(Wall 1998: viii).

______6 In Dickens’ Oliver Twist,onthe other hand, we are presented withavicious criminal in prison.The charactercalledFagin is acrook whotrains young pickpockets and is responsiblefor themurder of the prostitute Nancy.After Fagin’sarrest, the narrator comments on the character’s anguish in prison as follows: “Thosedreadfulwalls of Newgate, which have hidden so much misery and such unspeakable anguish,not only from the eyes, but,too often,and toolong,from the thoughts, of men, never held so dread aspectacle as that” (Dickens1966: 361), i.e. as Fagin sitting on the stonebench in his cell. In this case, the novel seems to argue that prisons may be bad but we need them because evil criminals like Fagin exist. 138 Jan Alber

Thenovel’s critical attitude towards the prison is intensified by the factthatmost of the Marshalsea inmates are likeable characters.Amy Dorrit, who is not apriso- ner but liveswith her father in prison, is an example of such asympathetic character. The little Dorrit of the novel’s titlemay even constitute asymbol of hope because of her love for Arthur and her devotion to her father, whom she selflessly rescues from despair. Moreover, most of the inmates of the Marshalsea are shown to suffer severely in prison.For instance, throughout the novel,the prisoners complain about the lack of air in the Marshalsea, which is presumably apsychological effect rather thanaphysicalsymptom.This hypothesisiscorroboratedbythe depiction of the effects of imprisonment on Arthur Clennam: Thesensationofbeing stifled,sometimes so overpoweredhim,that he would stand at thewindowholding his throat andgasping. At thesame time, alonging forother air, andayearning to be beyond theblindblank wall,made him feel as if he must go madwith the ardor of the desire. Many otherprisoners had had the experience of this conditionbefore him,and its violence and continuityhad wornthemselves out in theircases, as theydid in his. Two nightsand aday exhausted it. It came backby fits, but thosegrew fainter and returnedatlengthening intervals. Adesolate calm succeeded;and themiddle of the week found him settled down in the despondency of low, slow fever. (721) Otherinmatessufferinprison as well. At one point, William Dorrit observes that new inmates cry when theyhavetoleave theirvisitors,and we learn that he experiences his timeinprisonasavoyage on aship: “[...] now he waslike apassenger aboard ship in along voyage, who has recovered from sea-sickness, and is impa- tientofthat weakness in the fresher passengers taken aboard at thelastport” (222). Thepoint of this simile is perhaps to stress that theweeping newcomersare tossed on the waves of adversity justlikenew passengers become sea-sick because of tempests at sea, but after sometime, they getusedtoit. On theother hand,even though OldDorritclearly suffersinprison – he is saidtobe“nowboasting, now despairing" becauseheis"acaptivewiththe jail-rot upon him” (227) – he simultaneously experiences the Marshalsea in termsofaplace of “refuge”(74)thatpro- tects him from the world outside: “Crushed at first by his imprisonment, he had soon found adull relief in it. He was under lock and key; but the lock and key that kepthim in, keptnumbersofhis troubles out” (73). In contrast to his brother Fre- derick,who is lostinthe “the labyrinthianworld”(219)outside, William knows that he is “safe within the walls” (223). This safety is of courseanambivalentone because it infantilises theprisonerbymaking himpowerless and dependent on the prison. We also learnthat theprison determines the mindsets of its inmates. Most of the novel’sprisoners getsousedtothe prison that they cannot livewithoutit. Forex- ample, Amy’s brother Tip begins to depend on theprison, andreturns to jail again and again: Wherever he went, this foredoomed Tip appeared to take the prisonwallswith him, andtoset them up in such tradeorcalling;and to prowl about within their narrow The Ideological Underpinnings of Prisonsand theirInmates 139

limitsinthe old-slip-shod, purposeless, down-at-heel way; until thereal immoveable Marshalseawalls asserted their fascination over him,and brought himback. (84) Similarly, whenLittleDorritislockedout of theMarshalsea, “sheislockedout of her home, and so spends the nightmore aware than usualofthe fact that she belongsnowhereelse”(Cockshut 1998: 41). When the Dorrits are released because the money William Dorrit owes is miraculously found again, they all remain tied to theprison’signominy. Forexample, when Amyrealises that she does not manage to adapttoher father’s ‘new’ fortunes, she writes alettertoArthur in which she says: “[...]Assoon as Ibegintoplan,and think, and try, allmyplanning, thinking, and trying go in old directions [...]” (452). The prison continuestolurk within her andshe hasdifficultiesadapting to thehabits in the world outside. Also, at afash- ionableHighSociety dinnerinRome,William Dorrit slips back into hisrole as the imprisoned ‘Fatherofthe Marshalsea’(621). Psychologically speaking, the Dorrits never manage to leave the Marshalsea whichhas thus effectivelydestroyed their lives. As Ihave shown, Little Dorrit critiquesthe prison by representing most typesof imprisonment as being grossly unjust. Thenovel primarily presents us with likeable inmates who sufferseverely in prison (and also aftertheyhavebeenreleased); we are neverreally confronted with hardened criminals who would perhaps justify the existence of prisons.7 Manyfurther examples of such innocentand sympathetic prisoners exist in Dickens’ fiction. Forinstance, in Dickens’ ATale of Two Cities,Dr. Manette has to serve eighteen years in the hellish Bastille because of hisknowledge about the tyrannical Marquis St Evrémonde and his brother. Even though the prison experienceisonlyrendered retrospectively, the depiction of Manette is “apowerful, and aplausible, rendering of the permanentdamage to thepersonality whichsuch an experience mayinflict” (Collins 1962: 137). We get to know Manette after his release in aprison-like “dim and dark” (Dickens 2000: 41) room above thewineshopofthe Defarges in Paris. When hisdaughter Lucieand Lorry visit thefreed Manette in his room,Lorry asks the formerly “buried man” Manette, “Ihopeyou caretoberecalled to life?” Manette thenanswers “Ican’t say” (53). Theformerprisonerwishestobelocked in his room because, as Defarge puts it, “he has livedsolong, lockedup, that he would be frightened – rave – tear himself to pieces – die – cometoIknow not what harm – if hisdoor was left open” (39).Likethe Dorrits in LittleDorrit,Manette remains tied to the prisonwhich continues to lurk within him. When Defarge asks himfor his name, Manette answers: “One Hundred and Five, North Tower” (44). In prison, Manettelost his formeridentityand even though he has been freed, he ______7 In contrast to many other critics, Idonot thinkthat one can read Rigaud as aproper criminal either. Admittedly, he begins to blackmailMrs. Clennam towards the end of the novel. However, at thebeginning,wedonot know whether he actually committed acrime. For me,the novel argues in favour of caution with regard to theidentification of criminals because our judgments may be based on nothing but prejudice. 140 Jan Alber stillconsiders himself to be anumber. Manette’sbodyis“withered and worn”, and when he puts up his hand to shieldhis eyesfrom the incominglight, “the very bones [...] seemed transparent” (43). His voiceislikethe voiceofaghost: “it was like the last feeble echo of asound made long ago”; “it was like avoice under- ground” (42). AccordingtoGross, such ghostliness suggests somekind of “death in life to which menare reduced by imprisonment, psychological or actual” (1962: 188). Later on in ATaleofTwo Cities,the well-meaning Charles Darnay,the nephew of the Marquis St Evrémonde,isimprisoned by the brutal revolutionaries simply becauseheisanaristocrat. Darnay is released owing to the intervention of Manette whose long years of imprisonment under the ancien régime have entitledhim to a privileged position. However, therevolutionaries’ relentless hatred of the aristoc- racy causes Charles to be sent before the Tribunal again, which this timeconsigns him to the Conciergerie and sentences him to be guillotined.The second condemnation is ironically based on adocument written by Manette in prison. In this document, Manette denounces all Evrémondes: “[...] I, Alexander Manette, unhappy prisoner,dothislastnight of theyear1767, in my unbearableagony,denounceto the times when all these things shall be answered for. Idenouncethem to Heaven and to earth” (344).The connectionbetween his document andthe condemnation of Darnay causes Manettetoreturn to the imbecile mode of consciousness that pos- sessed him in the Bastille.The supposedutility of Manette’s suffering is rendered pointless, and endsinentire disillusionment(Cockshut 1998: 46). Like Little Dor- rit, ATaleofTwo Cities focusesonthe unjust imprisonment of sympathetic charac- tersand thuscritiques the prison. Finally, in Dickens’ David Copperfield (1849-50), Mr. Creakle showsDavid Copperfieldand his friend Traddles around amodel prison that is basedonthe ‘separate system’ofprisons likePentonville.During the course of this ‘tour’, they meet Uriah Heep and Littimer who are incarcerated in neighbouring cells and about to be transported for life (Dickens1981: 727-33). Admittedly, they arecriminals8; however, Iwould like to interpret the comic dramaofthe appearance of “Number Twenty Seven” (Uriah Heep)and “Twenty Eight” (Littimer) before aready-made audience andtheirpretending to be rehabilitated (“Isee my follies now, sir”) as a satire on the rather naivebelief thatstrictsolitaryconfinement leadstothe reform of the criminal. To summarise: as afirst result with regard to thequestion of how the interaction between the prison and its inmates influences our perception of the prison,Iwould like to arguethatacloselink exists between ouradmiration forprisoners and our contempt for the prison system as well as between our dislike of inmates and our approval of the prison system.Similarly, aratherclose connection exists between ______8 Uriah Heep is imprisoned for fraud,forgery and conspiracy,while Littimer robbedhis currentmaster. The Ideological Underpinnings of Prisonsand theirInmates 141 therepresentationofprisons as hellishinstitutionsonthe onehand, andthe evocation of sympathy forinmates on the other. In contrast to Dickens’ non-fictional writings, which becameslightly more reactionary as he grew older (Collins 1962: 22),Dickens’ fiction is rather critical of the prison institution: normally, we are confronted with innocent and/or likeableprisoners whose sufferingshedsacritical light on theprison. Generally speaking, Dickens’ novels participate in aphilanthropic discourse that represents prisons as instruments of injustice. We are only occasionallypresented with evil criminals like Fagin who seem to justify the existence of prisons. As Iwillshowinthe following section, most prison filmsofthe twentiethcentury presentuswith an innocent identificatory figure who is usuallyset apart from the rest of the prison population, while the‘other’ inmates are normally presented as ‘real’ criminals. Such filmscritique the imprisonment of our prisoner-hero but tacitly accept the incarceration of the other inmates. This is clearly anarrative strategy that is not dominant in Dickens’fiction.

4. TheRepresentation of Prisoners in Prison Films of the Twentieth Century

Ouridentificatory figures in twentieth-century prison filmsare often prisoner- heroes whoare wrongfullyimprisoned. For example, in the film The Shawshank Redemption (1994),the city banker AndyDufresne(Tim Robbins)iswrongfully convicted for murdering his wife and her lover and descends into thehellofthe Shawshank State Prison,where he is exploited and raped. Similarly, in the movie Down by Law (1986),the discjockey Zack (TomWaits) is setupbyGig (Rockets Redglare) while the pimpJack(John Lurie)isset up by another pimpnamed Preston(Vernel Bagneris). Thetwo areimprisoned and exposed to the monotonous and boringlife at the OrleansParishPrison. Sometimes our identificatory figures undergo harsh punishment for what are only apparent transgressionsoraccidents. For instance, the four boys in the film Sleepers (1996) are sent to the Wilkinson Homefor Boys in New York because following astupid prank, they accidentally killed aman with ahot dog vendor’s cart.9 On the other hand, someprison films focus on the social causes of crime, thus pointing out thatcertain criminal acts may be motivated by poverty or other types of social pressure.For example, James Al- len (PaulMuni), themajor protagonist of the film IAmaFugitive from aChain- Gang! (1932) steals afew dollars because he is hungry and is then sentenced to serv

______9 Similarly,inDown by Law,Roberto(Roberto Benigni) is imprisoned because he accidentally killed another man by throwing asnookerball which hit thevictiminthe forehead. Also,inthe film Cool Hand Luke (1967), Luke (Paul Newman)iscaughtvandalising parkingmeters, which is not aproper crime;rather, this action is perhaps associated with the romance of outlaw culture. 142 Jan Alber timeinahellish chaingang.10 Similarly, in the film The Loneliness of the Long- Distance Runner (1964) Colin(TomCourtenay)issenttoborstal forrobbing a bakery.The film ‘explains’ the crimeasfollows:Colin accuses his mother of not having waited to get anew boyfriend untilhis dead father was cold in his grave. She then hits him and throws him out of the house; as an afterthought, she hurls the order not to return without somemoney. At first glance, one might feel that this almost essentialerasure of criminalityon thepartofthe prisoner-heroescorrelates with an attempt to construct afictional counter-discoursetosociety’sstrategies of stigmatising prison inmates. However, uponcloser inspection,one does realisethatthe innocent hero is frequently constructed as an exceptionwithinthe prison world: he is in fact diametrically opposed to the ‘other’prisoners. Hale correctly points out that our identificatory figure “is in some waydistinguished from otherinmates. This often involves wrongful or unjust conviction” (1982: 51).11 Furthermore, he is normally surrounded by agroup of ‘real’criminals who seem to ‘belong wheretheyare’. In thewords of Jarvis, we are frequently confronted with a [...] rogues gallery amassed behind the prisoner-hero. Whilst the individualprisoner might be innocent, or at least not guilty as charged, no such claims are advanced on behalf of the collective prison population andatleast one irredeemably bad con is introduced to deflect fromamore sweeping institutional indictment. (2004: 172) Hence, most prison filmsquestionthe legitimacy of the centralprotagonist’s in- carcerationbut tacitlyacceptimprisonment when it comestothe other prisoners whoare usually represented as the ‘real’ criminals. Forinstance, onemight feel that thefilm The Shawshank Redemption condemns the prisonsystembecause the prisonworld is upside down: the Shawshank State Prison houses innocent inmateslike Andy and is run by sadist criminals like War- den Norton(BobGunton) and Captain Hadley (Clancy Brown).12 On the other hand, the movie also represents the prison as asocietal necessity because wicked

______10 The film Murder in the First (1995) seems to argue that three years in one of Alca- traz’s dark dungeons is adisproportionatepunishment forHenri Young (Kevin Bacon), whohad initiallyonlystolen five dollars to feedhis starving sister and thenattempted to escape fromAlcatraz. 11 Rafter also argues that in most prison films,the hero “is either absolutelyinnocent or at most guilty of aminor offensethat does not warrant prison. [...] Few [movies, J.A.] tam- perwiththe essentialinnocence of thelead character,with whom viewers must be able to identify” (2000: 118). 12 Hadleybeats the inmate “Fat Ass”(FrankMedrano) to death and brutalises the rapist Bogs Diamond(Mark Rolston) so severely that he is acrippleafterwards. Norton exploits the prisoners as slave labour and uses Andy to run his various corrupt scams. When the innocent Andy wishes to get anew trial because thenew inmate TommyWilliams(Gil Bellows) told himthat ElmoBlatch (Bill Bolender) had committed the crime for which Andy wasincarcerated, Norton sends Andy to the ‘hole’.Since Tommydeclares that he would testifythat Andy is innocent, Norton tells Hadley to kill Tommy. The Ideological Underpinnings of Prisonsand theirInmates 143 murderers like ElmoBlatch exist. This devilish criminal, who committed the crime forwhich Andy is incarcerated, deprives us of the philanthropic thought thatpri- sonsare only instruments of injustice. The representation of the villainousBlatch, who is once shown laughing insanely with stereotypically bad teeth, demonstrates that prison filmsmay alsobeused to stigmatise criminals andjustifythe existence of prisons. According to Jarvis, thefilm valorises “rehabilitative penalstyles” (2004: 197).More specifically, the movieopposesWarden Norton’s ‘old’ and bru- talprisonregime, which it critiques, with amore progressive apparatus, whichit agrees with because ultimately we need prisonstoconfine wickedcriminalslike Elmo Blatch (and perhaps also sadists like Norton and Hadley). The film thus par- ticipatesinadiscourse of subtle pro-prison propagandathattries to persuadeits recipients of the existence of evil criminalsand the necessity of well-run or rehabi- litativeprisons. It is perhaps also worth noting that the film The Shawshank Redemption encou- ragesself-satisfaction andcontentment. By means of the contrast between the tradi- tionaland themore progressiveprison, as well as by setting the movie safely in the remote past,13 this film of the 1990s seemstoimply that today, prisonsare notas bad as they used to be. Viewersare drawn into believing that penal reform has already takenplaceand that today’sprisons are run by well-meaning individuals.14 The followingobservation by Bammann actually applies to most prison films: „sie unterstützen vorbehaltlosdie Bestrafung der Schuldigen, solange den Unschul- digen die Möglichkeit gewahrtbleibt,dem System (wieder) zu entkommen“ (2001: 236). For example, in IAmaFugitive fromaChain Gang!,the major protagonist, with whom we are supposed to identifyand who twice manages to escape from the chain gang, is persistently distanced from his fellow inmateswho are representedin termsofthe ‘real’ criminals. Similarly,the film Down by Law focuses almost exclusively on thesympatheticinmates Zack, Jack and Bob, who are associated with the romance of outlaw culture and ultimately escape from prison. We only see the other prisoners in the courseofadolly shot at the beginning of the prison sequence: the camera moves slowly and smoothly past arow of barred cells and then stops at amediumshot of Zack, who will be joined by Jack, and later on by Bob. After the medium shot, we are presented with “a30-minute sequence during which the camera neverleaves the confinesofthe cell” (Jarvis 2004: 224). The other prisoners are reduced to off-screen murmurings so that we do getasensethattheir imprisonment does not really matter. Indeed, the examples listed above verify Wilson’s(1993: 79) and O’Sullivan’s (2001: 321) hypothesis that in prisonfilms,escape and/or redemption is usually reserved for exceptional individuals, while the mass of ordinary prisoners seem to deserve what they get. ______13 Andy is sent to prison in 1947 and he escapes in 1967. 14 O’Sullivan also arguesthat the film “is in no wayseriously criticalofany actuallyex- isting experience of incarceration” (2001: 326). 144 Jan Alber

It is not onlythe case that in fictionalnarrativesour sympathies for the prisoners influence ourperceptionofthe prison.The representation of the prison system may also impact on our perceptionofthe inmates. The harsh treatment of prisoners by diabolic wardens or prisonofficers mayevoke sympathy for the prisoners (usually regardless of whether theyare guilty or not). In other words, if the punishment in prison is severe or unjust, the inmate’s “criminal actions will be eclipsedbythe greatercrimescommitted againsthim”(Jarvis 2004: 171). Alex (MalcolmMcDowell) in the film AClockwork Orange (1971) is such a character. He is theleader of agangcalledthe droogs,and delights in purely gra- tuitous acts of violence. When peer pressure drives him from the ‘normalcy’ of assault,rapeand robberytothe rashness of murder, he is caught and sent to prison. From the momentheisknocked over the eyes with amilk bottle by one of his ‘droogs’ and abandoned to the police, he becomes “aChrist-figure embarkedonan odyssey of suffering and victimization” (Elsässer1976: 186).OnceAlexiscaught, he is beaten,cursed at, spat on and ultimately exposed to the Ludovico Technique15 so that our hostilityisquickly directedtowards everyone buthim.The film seems to argue that the perfect rehabilitation,which theLudovicotreatment achieves, is not desirable because it impliesthe complete destruction of individual willpower. The movie ends with Alex lying on his hospital bed fantasising aboutalife of more sex andviolence. Rafter argues that the film’s ending showsus“the confirmed delinquent’sdelightinviolence” (2000: 3). For me,the message of the film is more specific.Ithink thatitargues that Alex’s criminal violencecorrelates with individuality, autonomy,spontaneity and perhaps even art,16 and as such should not be disciplinedbyconformistforceslike theprison or theLudovicoMedical Facility. Robert F. Stroud in thefilm Birdman of Alcatraz (1962) is anotherexample of a criminal who is exposed to an unjust treatment in prison.Stroudkilledaman (22) andlater on aguard in prison (43),but becomes asensitiveornithologist whoclear- ly shows signs of rehabilitation.Ultimately, the prisoner turns out to be more humane than the prison staff at Leavenworthand Alcatraz. By constructing Stroud as aclever scientist and sympathetic individual,the film clearlywishes to counter processesofdehumanisation and depersonalisation. Additionally, the movie questions the penal practiceofmerely exposing prisonerstodeadening routinesand abstract rules and regulations,and perhapssupportsreformative prisonsinwhich ______15 The Ludovico Technique makes Alex incapable of acting violently because he begins to feel nauseousatthe thoughtofviolenceand sex. The treatment is aform of brainwas- hing in whichthe inmate is drugged and forced to watch asuccessionofpornographicand violent filmswith the result that anythought of sexand violence, and, incidentally, the sound of Beethoven,causehim to suffer nausea. 16 According to Elsässer, “Alex’sviolence is stylized into libidinal self-expression and his destructiveness becomes amanifestation of aself-assertion thatpromises asubversive anarcho-individualist liberation” (1976: 182). Sobchack pointsout that in thefilm, “artand violencespringfromthe samesource;theyare both expressions of the individual, egotis- tic,vital, and non-institutionalized man” (1981: 98). The Ideological Underpinnings of Prisonsand theirInmates 145 inmates are given an occupation like bird-breeding thatallows them to develop their personality. As Ihave shown, most prison filmscritiqueand legitimate the prisonatthe same time.More specifically, they tend to critique‘traditional’ prisonsbased on discipline but simultaneously legitimaterehabilitativeincarceration.17 The plot elements of prison filmsare normally always the same.Weare frequently confronted with an innocent prisoner-hero who suffers under abrutal system.The fate of this unique character is then represented as being illegitimate, while the mass of ordi- naryprisoners are frequently depictedintermsof‘real’ criminalswho havetobe imprisoned (but not necessarily under theawful circumstances we are presented with). Most prison filmsonly invite us to identify with the innocent prisoner-hero but they do not allow us to sympathise with the ‘deviant’ rest of the prisonpopula- tion.Onthe otherhand, if the treatmentinprison is extremely harsh, we also sym- pathisewithincarcerated criminals, i.e. “the marginalizedand the condemned” (Fludernik andOlson 2004:xxv). Generallyspeaking, therepresentations of prison in most films “actively contribute towardslegitimising prison as aform of punishment” (O’Sullivan 2001:321); Iwould only liketoadd that they tend to legitimise reformative incarcerationratherthan the prison system per se.

5. Conclusion

As Ihaveshown, prison narratives mayconstruct acounter-discourse to society’s strategiesofstigmatising criminals (and/or prisoners) or they mayconstitute a formofpro-prison propaganda. Surprisingly, the ‘conservative’ and canonised Charles Dickens turned out to be much more critical of the institutionofprison than most prison filmsofthe twentiethcentury. In Dickens’ novels, the prison primarily correlateswith theunjust suffering of sympathetic inmates, and is addition- allyrepresented as anegative force that even managestoenter the minds of its inmates. Someprison filmsalso shed acritical light on the prison by highlightingthat theideaofrehabilitationalways correlateswiththe destruction of the prisoner’s individuality. On the other hand, most of thesefilms draw aqualitative difference betweenthe sufferingofour prisoner-hero(whoisnormallyrepresented as ‘one of us’) and the‘other’prison inmates. Hence, they only questionthe legitimacy of the imprisonmentofour identificatoryfigure buttacitly accept theincarceration of the ‘deviant’ others. According to Rodríguez,the “discursive [...] production of fear” (in the shapeofwickedcriminals) maylead recipients to agree with theideaof

______17 Thefilm AClockworkOrange,onthe otherhand, seemstoglorify Alex whose individuality must neverbedisciplined by society’sconformistforces. Also, the film The Lo- neliness of the Long-Distance Runner argues thatthe attempt to rehabilitate inmates like Colinispointless becausehis crime wasmotivated by social necessity.Inother words, society’s classstructure is to be blamed forthe existence of criminality. 146 Jan Alber carceral punishment (2002: 412). Also, the representation of evil and/or guilty prisoners prevents the viewers (and readers) from forgingstrongeridentifications with the representedprisonpopulation than withthe state andits prison system. Hence, I would liketosuggestthat theideaof“wantingprisons as simply neither too hard nortoo easy” (Tambling 1994: 128) has to be attributed to mostprisonfilmsrather than Dickens’fiction. As ageneraltendency, one can say thatsince Dickens’ novels do notpresent us with asingleinmate who goes through aprocess of reforminone of his gloomy dungeons, Dickens’fictionisrathercriticalofthe idea of rehabilitation in prison. Most prison filmsofthe twentieth century, on the other hand, seem to argue that if theirprison settings – i.e. borstals, reformschools, stateand federal penitentiaries, etc. – are runbywell-meaning individuals,the rehabilitation or reform of the prisoner is possibleand desirable.Sometimes aprogressive prison system is shown to develop in the course of the narrative,and sometimes it is alludedtothrough well- meaning and humane prison officers.Such narratives correlate with aform of pro- prison propaganda because they critique punitiveordiscipline-based institutions but (atleast tacitly) agreewith rehabilitative penal styles.

6. Bibliography

6.1 Primary Texts and Films

Dickens, C. (1981), DavidCopperfield [1849-50],ed. Nina Burgis, Oxford:Clarendon Press. – (1998), Little Dorrit [1855-57],ed. Stephen Wall &Helen Small, London:Penguin. – (1966), Oliver Twist [1837-38],ed. Kathleen Tillotson, Oxford: Clarendon Press. – (2000), ATaleofTwo Cities [1859], ed. Richard Maxwell, London: Penguin. CoolHandLuke,dir. Stuart Rosenberg,Warner Bros.&Seven Arts,1967. Down by Law,dir. Jim Jarmusch, Island, 1986. IAmaFugitive from aChain Gang,dir.Mervyn LeRoy, Warner Bros.,1932. TheLonelinessofthe Long Distance Runner,dir. Tony Richardson, British Lion &Bry- anston, 1964. Murder in the First,dir. Marc Rocco, Le Studio Canal +, 1995. TheShawshank Redemption,dir. FrankDarabont, Castle Rock Entertainment, 1994. Sleepers,dir. Barry Levinson, Propaganda Films &BaltimorePictures, 1996. The Ideological Underpinnings of Prisonsand theirInmates 147

6.2Secondary Literature

Alber, J. (2007), Narrating the Prison: Role and Representation in Charles Dickens’ Nov- els, Twentieth-Century Fiction, and Film,Literature, Film,Theory, Youngstown,NY: Cambria Press. Althusser, L. (1984),EssaysonIdeology, London:Verso. Bammann, K. (2001),„Orte der Bestrafung. Wo Hollywood seineVerbrecher hinschickt und warum dies weit weniger Science-fiction ist, als es auf den ersten Blick scheint“, Zeitschriftfür Strafvollzug und Straffälligenhilfe, 4: 233-38. Bender, J. (1987), Imagining the Penitentiary:Fiction and the ArchitectureofMind in Eighteenth-CenturyEngland, Chicago, London: The Univ. of Chicago Press. – (1995), “Making the World Safe for Narratology”,New Literary History,26: 29-33. Bentham, J. (1995), The PanopticonWritings,ed. with Introduction by MiranBozovic, London&New York:Verso. Cheatwood, D. (1998), “Prison Movies: Filmsabout Adult, Male,CivilianPrisons:1929- 1995”, in: F.Y. Bailey &D.C.Hale(eds.), Popular Culture, Crime,and Justice,Bel- mont et al.: Wadsworth, 209-31. Cockshut, A.O.J. (1998), “Prison Experiences in Dickens’sNovels [1962]”,in: C. Swisher (ed.), Readings on Charles Dickens,San Diego, CA: Greenhaven Press, 40-49. Cohn, D. (1995a), “Optics and Power in the Novel”, NewLiterary History,26: 3-20. – (1995b), “Reply to JohnBender and Mark Seltzer”, New Literary History,26: 35-37. Collins, P. (1962), Dickens and Crime,Cambridge Studies in CriminologyVol. XVII,L. Radzinowicz (ed.), London &New York:Macmillan &St. Martin’s Press. Eagleton, T. (1991), Ideology:AnIntroduction,London&New York:Verso. Elsässer,T.(1976), “Screen Violence:Emotional Structure and Ideological Function in A Clockwork Orange”, in C.W.E. Bigsby (ed.), Approaches to Popular Culture,London: Arnold, 171-200. Fludernik, M., &Olson,G.(2004), “Introduction.” in: M. Fludernik&G. Olson (eds.), In the Grip of theLaw: Prisons,Trials and the Space Between,Frankfurt a.M.:Peter Lang, xiii-liv. Gross, J. (1962), “ATale of Two Cities”,in: J. Gross&G. Pearson (eds.), Dickensand the TwentiethCentury,London:Routledge &Kegan Paul, 187-97. Hall, S. (1985), “Signification, Representation, Ideology:Althusser and the Post- Structuralist Debates”, Critical Studies in Mass Communication,2(2): 91-114. Hooks, B. (1996),Reel to Real:Race,Sex, and Class in the Movies, New York: Routled- ge. Jarvis,B.(2004), Crueland Unusual: Punishmentand US Culture, London&Sterling, Virginia: Pluto. Kaplan, E.A. (1983), Women and Film:Both Sides of the Camera, New York: Methuen. Kavanagh,J.H. (1995), “Ideology”,in: F. Lentricchia &T.McLaughlin (eds.), Critical Termsfor Literary Study,Chicago&London: The Univ. of Chicago Press,306-20. 148 Jan Alber

King, R.D. (1999), “The Rise and Rise of the Supermax: An American SolutioninSearch of aProblem?”, Punishment andSociety,1(2): 163-86. Mathiesen, T. (2000), Prison on Trial,Winchester: WatersidePress. Mason, P. (2003), “The Screen Machine: Cinematic Representations of Prison”, in: P. Mason (ed.), Criminal Visions. Media Representations of Crime and Justice,Cull- ompton:Willan, 278-97. Miller, D.A. (1988), The Novel and the Police,Berkeley:Univ. of California Press. Nellis, M. (1982), “Notesonthe American Prison Film”, in:M.Nellis &C.Hale(eds.), The Prison Movie,London: RadicalAlternatives to Prison, 5-49. O’Sullivan, S. (2001), “Representations of Prison in Nineties Hollywood Cinema: From Con Air to TheShawshank Redemption”, Howard Journal of Criminal Justice,40(4): 317-34. Rafter, N. (2000), Shots in the Mirror: Crime Films and Society,Oxford:Oxford Univ. Press. Rodríguez, D. (2002), “Against the Disciplineof‘Prison Writing’: Toward aTheoretical Conception of Contemporary Radical PrisonPraxis”, Genre 35(3-4): 407-28. Seltzer, M. (1984), HenryJames andthe Art of Power,Ithaca &London: Cornell Univ. Press. Smith, G. (2003), Dickens and theDream of Cinema,Manchester &New York: Manches- ter Univ. Press. Sobchack, V.C. (1981), “Décor as Theme: AClockworkOrange”, Literature/FilmQuar- terly,9(2): 92-102. Tambling, J. (1994), “Prison-Bound: Dickens and Foucault [1986]”, in: R.D. Sell (ed.), Great Expectations: CharlesDickens,New Casebooks, Houndmills: Macmillan, 123- 42. Trilling,L.(1955), TheOpposing Self,London: Secker &Warburg. Wall, S. (1998), “Introduction”, in: S. Wall &H.Small (eds.), Little Dorrit,London: Pen- guin,vii-xxi. Weber, M. (1922), Gesammelte Aufsätzezur Wissenschaftslehre,Tübingen: Mohr. Wilson,D.(1993), “Inside Observations”, Screen,34(1): 76-79. Wilson, D. &O’Sullivan, S. (2004),Images of Incarceration: Representations of Prisonin Film and Television Drama,Winchester:Waterside Press. Hollywood’s Prison Film TowardsaDiscursive Regime of Imprisonment

Paul Mason

Introduction The populist turn in criminal justice has oftenbeen cited in discussions of an inc- reasedpunitiveness in Britain and elsewhere (Garland, 2001; Pratt 2002;Roberts and Hough, 2002; Roberts et al., 2002;Ryan, 2003a; Pratt et al., 2005). The argument goes something like this – bottom up pressure from an outraged public, driven by visceral tabloidheadlines,demandmore displays of repressive punishment. Hence an increase in longer prison sentences, boot camps, ASBOS, andmost recently in the UK, proposals for young offenderstowear uniformswhile carrying out community service (The Guardian,15thMay 2005). Whether one accepts this argument or not (see Matthews, 2005) none of the writingonpenal populism and punitiveness engageswith thehow the media constructs prison and punishment or how it maycontribute to apopulistand punitivecriminologicalimagination. This chapter seeks to explore one such media discourse: the prison film and in particularthose filmsmade in Hollywood, which in the lasthundredyears has produced over three hundred prison films. One used to be able to write confidently about the dearth of analysis of the prisonfilm:the puzzling lacunae of research on aconsiderable corpus of cinema. However, in recent yearstherehas been significant growth in academic writing in the area (Schauer 2004,Jarvis2004, Wilson and O’Sullivan 2004,Kermode,2003,Mason 2003,Nellis 2003, O’Sullivan 2003), ironic giventhe small number of prison filmsthat have been made since 2000. It has beenthisincrease in analysis thathas prompted me to reassess the ways in which the prison film has been discussed,and in this chapter Iwish to offerthree things as part of alarger exploration of prison cinema(Mason 2006, forthcoming). Primarily Iaminterested in suggestingaframework for analysing the prisonfilm, and argue that auseful epistemological structure takes account of genre theory but alsoFoucauldian discourseanalysis and representation.Iseektoexemplify this approach by offering some initial thoughts on one aspect of Hollywood’s discourse on imprisonment which, Iargue continues to pervadeits discursive regime of representing prison. To begin with however it is necessary to presentacartographic accountofHollywood’s prisonfilm output without the constraints of the artificial taxonomies which unhelpfully punctuate existing prisonfilm chronologies. 150 Paul Mason

Hollywood, Prison Films andCanonic Generality Muchofthe workcarried outthusfar on the prison filmhas either relied on a smallnumberoffilms andthen used them as abasis for sweeping commentary on the genre, (for example Cheatwood 1996, Rafter, 2000, O’Sullivan 2001, and indeed someofmyown work – Mason 1998, 2000)orused audiences merely as ‘the rhetorical guarantor’ (Hutchings 1995:66) of the rightness of the analysis and failed to engage with real audiences at all, such as Wilson and O’Sullivan (2004). My analysisispredicated upon therecognitionofgenres as social constructions, subject to constant negotiation and reformulation, and thus in researching the prisonfilm and its history‘it is necessary to include as wide arange of filmsaspos- sible,while trying not to misrepresentthe spectrumofaudience conceptions’ (Tu- dor 1989:6). Nellis and Hale are right when they suggest that‘…noother typeof crimefilm – the gangstermovie, the policeprocedure movie and thecharacteristi- callyEnglishmurder mystery- has claimed suchimpressive credentials in its bid for genre status (as the prison film)’ (Nellis and Hale 1982:6) and it is this ‘bid’ I wish to address first. The term ‘genre’ despite being used in Hollywood production termssince the 1910s, came to prominence in work on cinemasomefifty years later ‘to situate the auteur more systematically (and perhaps morecredibly) within the Hollywood set- up’ (Hutchings1995:60),engaging with an audience who sawthat ‘it is not anew Hawks or Ford or anew Peckinpah;itisanew western’(Buscombe 1970:43). A trawl throughthe vast literature on genre theory proves both complexand contradictory.Indeed, the only facet of generic accounts that appears consistent is di- sagreement concerningterminology, applicationand ideology. Writingongenre can often be narrow, circular andindulgent,where its recurrent structuralism often excludes not only historical factorsbut also misinterprets industrial ones. While Hollywood has undoubtedly minimised commercial risk through ‘repetition with difference, similarity with variety’ (Neale 2003:54), there has been atendency in somegenre work to overstate the apparent symbiosis between Hollywood production and genre categories. With the perpetuation of genres oftenundertakenbycri- tics not filmmakers, Neale and Maltby concur in suggestingHollywood is a‘generic cinema’ (Maltby2003:99)ratherthanRyall’s contention that it is ‘a cinemaof genres’(Ryall1998:327). Despite these misgivings, and as Nealesuggests, genretheoryenables the‘exploration of theculturalvalues and ideological dilemmas centraltoAmerican society’ (2003:162). In choosing to adopt genre theory for an analysis of the prison film, one is immediately faced with the problemofterminology and definition. The prison film is often lumped togetherinlargergenressuch as crimefilms, social problem films, or juvenile delinquentand teenpics.Iwould argue however that to distinguish the prison film as aseparate corpus of workoffersthe opportunity for, whatMuncieand McLaughlin term,‘high definition, wide screen analysis’ (Mun- cie and McLaughlin 2002:x). Naturally, thereisablurring at the edges: avenn- Hollywood’s Prison Film – Towards aDiscursive RegimeofImprisonment 151 diagramaticoverlap between genres, for as Jarvis suggests, while ‘the classical prison film is either an escape or an executiondrama; it is complemented by anumber of sub-genres and hybrids’ (Jarvis2004:166). Among these we can note the prison comedies: The Slams (Jonathan Kaplan, 1973) and Stir Crazy (Sidney Poitier, 1980), the prison musical, Jailhouse Rock (Richard Thorpe,1957) Chicago (Rob Marshall, 2002),prisonscience fiction: SpaceRage (ConradE.Palmisano and Pe- ter McCarthy[reshoot], 1985) Wedlock (Lewis Teague, 1991) and Fortress (Stuart Gordon,1993), the sport/prison film featuringAmericanfootball in The Mean Ma- chine (Robert Aldrich,1974), boxing in the Penitentiary series(all JamaaFanaka, 1980, 1982, 1987), andfootballinEscape To Victory (John Huston, 1981). Thelat- ter could alsobeclassed as prisoner of war film, of which there have been many, including Stalag 17 (Billy Wilder, 1957), Prisoner of War (AndrewMarton, 1954), The Great Escape (JohnSturges, 1963) King Rat (Bryan Forbes, 1965) and The Dirty Dozen (RobertAldrich,1965).Inaddition we couldadd the exploitation prison movie, alarge number of which were made in the 1970s, such as The Big Dolls House (Jack Hill, 1971), Women in Cages (Gerardo De Leon, 1971)and The Big Bird Cage (Jack Hill, 1972). As well as these subgenres, there are prison filmsin which the mise en scene of punishment does not dominate, such as the Bogart comedy vehicle We'reNot Angels (Michael Curtiz, 1955), Charles Bronson’s jail break, Breakout (Tom Gries, 1975),and Oliver Stone’s postmodern media critique Natural BornKillers (Oliver Stone, 1994).

Mapping the Prison Film Iamscepticalofthe historical taxonomiesofthe prison film that have been un- dertaken thusfar (Cheatwood 1996;Crowther 1989; Rafter 2000; Wilson and O’Sullivan, 2004).Inconstructing such timeperiods and attributing termstothem, thosewriters whooffer historical schemasofthe prison film succeed in producing mere internal generic chronologieswithlittlerecourse to Hollywood’s industrial or historic context. Cheatwood(1996),for example, tracesthe prison film through ‘thedepressionera’ of the 1930s,the ‘rehabilitation’ erafrom1943to1962, ‘confinement’from1963to1980and finally, contemporary prison filmswhich he termsthe ‘administrationera’. However,Cheatwood’s taxonomyisforced, claiming, for example, that Cool Hand Luke is partofthe ‘confinement era’ where ‘toughness and the image of the Bad Dude have replaced loyaltyand theSquare John as primary values’ (ibid:223)issurely to miss the point that Cool Hand Luke is aboutthe horrors of achainganginSouthernAmerica, owingmuch, in spirit at least, to IAmAFugitiveFrom AChain Gang (MervynLeRoy, 1932), made thirty years previouslyand in what Cheatwood termsthe ‘depression era’.Asimilarap- proach is also adopted by Wilson and O’Sullivan(2004), who argue that periodi- sing the genre in this way, aids rather than reduces prison film analysis but fail to elucidatethisclaim,orjustifyimposing such aperiodisation. 152 Paul Mason

Theseover-simplified taxonomiesbecome tautologous, where historical periods narrowlydefined (either using asmall numberoffilms,inacultural and industrial vacuum,orbuilt solely on UK and/or US criminal justicepolicy developments) serve simply as artificial frames wedged round an ill-fitting pile of prison films whichmay or maynot be justifiably grouped together based on theirrelease date. This practice becomes aone-eyed decontextualising of the prisonfilm,the purpose of which seemstobeseeking out filmswhich prove the category works, rather than exploring what discourse(s)Hollywood constructs through its representation of prison at particular historicmoments. Underthe former regime,the prison film is confined to asmall cell and subjecttounreasonable conditions. Iwant to liberate the prison film from this restrictive analysis, instead tracing its development and re/presentation since the beginningofthe 20thcentury. My research suggests Hollywood has produced around 350 prisonfilmssince the Barnsdale production company made the silent melodrama Prison Bars in 1901. Many accounts of the prison film begin in the 1930s, however there were at least thirty made beforethat, including thesilentcomedies Pimple’sPrison (1914) No Place Like Jail (Frank Terry, 1918), Big Town Ideas (Carl Harbaugh, 1921) and SeeYou In Jail (Joseph Henabery, 1927), the latter featuring Stan Laurelwho also appeared with OliverHardy in theprison comedies The Second Hundred Years (FredGuiol, 1927), TheHoose Gow (James Parrot, 1929) and later in their best knownprisoncomedyand first full-length talkie, Pardon Us (James Parrot, 1931). While it is true thatfew remarkable prisonpictures cameout of Hollywood during this period, anumber of directors, who went on to make more significant contributors to thegenre made their first prison filmsbefore 1930.1 As Ihave previously noted(Mason 2003), the 1930s remains the most prolific decade forthe production of prison filmsinHollywood,with over eighty being made. As well as IAmAFugitiveFromAChainGang,the decade’s prisonfilms includedthe Oscar nominated The Criminal Code (Howard Hawks, 1931) and The Big House (GeorgeW.Hill,1930). The latter described by Variety as ‘Not atwo- dollar talkie butavirile, realisticmelodrama’ (Walker, 1997:71). Nellis notes:

______1 Forexample,Raoul Walsh, director of The Honor System (1917) and Me,Gangster (1928) wholater directed James Cagney in White Heat (1949); and Lloyd Bacon, best knownfor hisdirection of musicals such as 42nd Street (1932) whoalso directed the Bo- gart films San Quentin (1937) and Invisible Stripes (1940) butpreviouslyworkedonthe silent prisonfilm BrassKnuckles (1929) and with Al Jolsoninthe improbable mawkish prison yarn, Say It With Songs.The 1920s also saw prison filmsdirected by Joseph Von Sternberg (the noir-ish Thunderbolt 1929) and Cecil BDeMille (Manslaughter,1922),the latter Parish notes as ‘(b)esides being aself-serving moral essay,DeMille craftily inter- wove flashbacks into the proceedings, allegedly for historical comparisons.However it was just an excuse to introduce lavish Biblical settings, risqué costuming and debauched behavior’(Parish,1991:271). Hollywood’s Prison Film – Towards aDiscursive RegimeofImprisonment 153

…the failureofprisontorehabilitate,together with scenes of admission to prison and solitaryconfinement have become integral to thenarrative and iconographyof subsequent prison films, andhavehelpedtogive The Big House itsstatus as aminor classic. (Nelllis, 1981:15) Some of subsequent legends of Hollywood starred in prisonfilmsduringthe 1930s,includingJames Cagney (The Mayor of Hell(Archie Mayo1933), Angels With Dirty Faces (Michael Curtiz, 1938) and Each Dawn IDie (William Keighley, 1939));Edward G. Robinson(TwoSeconds (MervynLeRoy,1932),The Last Gangster (Edward Ludwig, 1937) and GeorgeRaft(Each Dawn IDie andInvisible Stripes(Lloyd Bacon, 1940)). The self-regulation of Hollywood’sProduction Code in 1930, devised to counter external regulation and censorship2 in essence ‘amounted to aconsensus about what constitutedappropriateentertainment for an undifferentiatedmassaudience in Americaand,bydefault,the rest of theworld’(Maltby 2003:61).Thisled to a‘negotiated struggle and eventual convergence’ (Parker 1986:146) between the film industry and the institutional regulators,producing recurring cinematic narratives in which crimenever paid. Hollywood’s most famous gangster actors metamor- phosedintodynamiccops, Edward GRobinson (Outsidethe Law (Tod Browning, 1930), Little Caesar (MervynLeroy,1931), Smart Money (AlfredE.Green,1931) becamecop Johnny Blake in BulletsorBallots (WilliamKeighley, 1936) and Ja- mesCagney(The Public Enemy (William A. Wellman, 1931),Blonde Crazy (Roy Del Ruth, 1931), The Mayor of Hell)turnedheroicG-Man Brick Davis out to avenge the murder of his best friend in G-Men (William Keighley, 1935). Both Roffman&Purdy (1981) and Parker (1986) argue that the prison film dur- ingthistimewas ‘the ultimatemetaphor of socialentrapment, where the individual disappears among the masses in an impersonalinstitution’(Roffman andPurdy, 1981:26). Thus prison cinemainthe 1930s regularlyconstructed theprotagonist as an innocentman wrongly convicted, such as JamesAllen(Paul Muni) caught up in ahold-up in IAmAFugitive From AChain Gang;Chick Wheeler (Edgar Ed- wards) wronglyconvicted of murderinConvicted (LeonBarsha, 1938), or James Larrabee (Donald Woods) framed on grand larceny charges by corrupt politician Shields (Joseph Crehan) in Road Gang (Louis King,1936).Ifour hero wasguilty of acrime,then it often camewith mitigating circumstancessuch as Robert Gra- ham (PhilipsHolmes) protectinghis sweetheart in The Criminal Code (Howard Hawks, 1930)oryoung orphan JimmyMason (JuniorDurkin) persuade to work for abootlegger in Hell’s House (Paul Gangelin,1932). Athirdvariation on this narrative was predicateduponthe reforming con who, having reformed or redeemed himself in someway suffered an unjust deathwhile stillincarcerated.Tom Connors

______2 Maltby (2003)notes that the Supreme Court ruling that films were‘mere representations’and thus not entitled to theFirst Amendment right to freedom of speech remained in force until 1952. 154 Paul Mason

(Spencer Tracy)goeswillingly to thechair, foranunjust execution in 20,000 Years In Sing Sing (Michael Curtiz, 1933) for example, and “Killer”JohnMears (Preston SFoster) ends aprisonriot by his suicidal walk towards the guards’ machine guns, enabling adeath rowreprieve fornew inmate Walters in TheLastMile (Samuel Bischoff, 1932). As Roffman andPurdy argue,suchfilms reflected the dejection of therecession in 1930s America: ...the films’ evocation of innocence living in subjugation and terror clearly reflects the despair of the nation faced with incomprehensible social and economic upheaval ... the cells and bars and chains eloquentlyre-create the sense of frustration and re- strictioninaland of lost opportunity(Roffmanand Purdy, 1981:28). During the 1940s, in the climate of post-war readjustment in America, Holly- wood’s production of prisonfilmsdeclined both in number and in quality. Rafter (2000) argues that theinfluence of the European directors and the consequent, but contested,3 corpus of ‘film noir’ reconstructed the crimefilmadding complex narratives and aconfusing moral order. This is perhaps best illustrated by Brute Force, JulesDassin’sbleakrepresentation of prison life. Dark in tone and fractured in its narrative,with flashback sequences of four inmate’s stories, Parrish (1991) argues itslip servicetoprisonreformallowed Dassin morelicence forgratuitous horror. Along with severalnotably prisoner-of-war films, such as Stalag 17 and Priso- nerofWar (Andrew Marton,1954) and prison comedies We’re Not Angels and My Six Convicts (Hugo Fregonese, 1952), the juvenile delinquent and social problem filmssuch as TheWildOne (László Benedek, 1953),The Blackboard Jungle (Ri- chard Brookes,1955) and Rebel Without ACause (Nicholas Ray, 1955) were evi- denceofHollywood’s realignment to incorporate the growing teenage market during the 1950s. Girls In Prison (Edward L. Cahn), and the Elvis prison film vehicle JailhouseRock further echoed this trend. The former, alsoillustrated thedevelopment of women protagonists in prison narratives (Chibnall, this volume)infilms such as Caged (John Cromwell, 1950), YieldToThe Night (J. Lee Thompson, 1956) and IWantToLive (Robert Wise,1958). The producer of the latter,Walter Wanger,was also involved in theDon Siegel picture, Riot In Cell Block11,filmed at FolsomPrison and featuring some of its inmates among the cast. Having spent threemonths in prison in 1951 for attempting to shoot his wife’s agent,Siegel was movedtomake the film following the riotsinAmericanjails between 1951 and 1953, and offered aserious treatiseonprison reform (Nellis and Hale, 1981). Ki- minsky comments that the film ‘broke twocardinalHollywood rules: the good guys lost andthere were no womeninthe picture’ (Kaminsky 1974:83).

______3 Seefor exampleCook(1990), Neale(2003)and Silverman &Ursini(2004). Hollywood’s Prison Film – Towards aDiscursive RegimeofImprisonment 155

TheKennedy yearsinthe 1960s witnessed ‘a new domestic agenda …reflected and to someextentreinforced by Americanfilm’ (Neve1992:212) andthiswas perhapsechoed in the final releaseofThe Birdman of Alcatraz (JohnFranken- heimer,1962) baseduponthe true storyofRobert F. Stroud, who had spent 42 yearsinsolitaryconfinement. The film’s release coinciding with Stroud’s transfer from Alcatraz to Springfield prison following extensive campaigning by, among others, journalist Thomas Gaddis. Hollywood’sliberal agenda wasalsoevident in The Defiant Ones (StanleyKramer, 1958),ataleoftwo escaped convicts, one blackand onewhite,chained together at the ankle, exemplifying Hollywood’s exploration of racism in American society. Although prisonfilmproduction continued to decline in the 1960s,withHollywood producing less thanthirty prison films, alongside The Birdman of Alcatraz was Cool Hand Luke in whichPaul Newman played Lucas Jackson,sentencedtohard labour on Southern correctional campfor knocking the heads off parking metres. In many ways the film echoed the horrorsofthe chain gangpreviously explored in filmssuch as IAmAFugitive From AChain Gang, Hells Highway (Roland Brown,1932)and Blackmail (HC Potter, 1939) Worthy of mention is In ColdBlood (Richard Brooks, 1967) based on Truman Capote’s case study of two killers on death row following the Clutter family murders in Kansas City in 1959. There were also severalprisonofwar films, including The Great Escape, King Rat (Bryan Forbes, 1965) and The Dirty Dozen (Robert Aldrich, 1965) in whichthe eponymous convicted murderers were as- signed to destroy aNazi-occupiedfortress. The 1970s tooproducedfew prison films of note, although my research suggests Hollywood producedaround thirty five. These included therun of women-in-prison exploitation films, such as Women’s Penitentiaryseries, TheBig Doll’sHouse (Jack Hill,1971), Women in Cages (GerardoDeLeon, 1971) and The Big Bird Cage (Jack Hill,1972) and comedies such as theBurt Reynolds vehicle The Mean Machine. Nellis and Hale however, note an interestingdevelopment promptedbythe MGM release of Fortune and Men’sEyes (HarveyHart, 1971) which dealt frankly4 with homosexuality in prison. Theysuggest that ‘(a) series of pressexposés, therise of gay liberation and the greater frankness of cinema generallycombined to ensurethat the newprison movies gave considerable spacetoit, in both its violent andaffectio- nate forms’ (Nellis and Hale 1982:35). True storiesprovidedHollywood with the narratives for several prison films during this period, notably The Sugarland Express (StevenSpielberg, 1973), Straight Time (Ulu Grosbard, 1978) as well as Midnight Express (Alan Parker, 1978), basedonBilly Hayes’s account of life in, and escape from, aTurkishprison.Both Midnight Express and the earlier Papillon (Franklin J Schaffner,1973) highlighted conditions in prisons outside America, in the caseof Papillon,Devil’s Island in French Guiana.

______4 In fact, MGMinsisted that the original, much more provocative, stage play originally shown Off Broadway in 1967 andagain in 1969, was toneddownfor the screenplay. 156 Paul Mason

While interesting and challenging prison filmswere being made outside of Hol- lywood, such as The Kiss of the SpiderWoman (Hector Babenco, 1985)and Jim Jarmusch’s monochromedprison/road movie romp, Down by Law (Jim Jarmusch, 1986), Hollywood continued to offer familiar prisonnarratives throughout the 1980s whichfocussed on violence(Lock Up (JohnFlynn,1989), PenitentiaryII), escape in Escape From Alcatraz (Don Siegel, 1980) and corruption and miscarria- ge of justiceinFast Walking (JamesBHarris, 1982). There were occasional highs; in particular, Brubaker (StuartRosenberg,1980) in which Robert Redfordplayed theeponymous warden,attempting prison reform against abackdropofcorruption at local and government level. The filmwas based upon the revelations of Thomas O. Murtonwho was appointed superintendent at two prison farmsinArkansas in thelate1960s (Murton andHyams,1970). In the 1980s,prisonfilms began to look forward as well as back, in science fiction prison filmssuch as The Chair (WaldemarKorzeniowsky, 1988), and future dystopian punishmentnarratives in Escape From NewYork and The Running Man (Paul Michael Glaser, 1987) (Nellis, 2005).This continued into the 1990s with Fortress (Stuart Gordon, 1993) and No Escape (MartinCampbell, 1994). Cheat- woodnoteshow thesefuturistic prisons were runbyfaceless, mechanistic wardens: in No Escape,the warden is ahologram,while in Fortress he is part robot. In the mid-1990s the catalyst for theincreased popularity andproductionofthe prison film was The Shawshank Redemption (Frank Darabont, 1995). In the immediate years that followed thereleaseofTheShawshankRedemption,Hollywood studios also released Murder In The First (Marc Rocco, 1995),Just Cause (Arne Glimcher, 1995), Dead Man Walking (Tim Robbins, 1996),LastDance (BruceBeresford, 1996),Con Air (Simon West, 1997),Return To Paradise (JosephRuben,1998), BrokedownPalace, (Jonathan Kaplan, 1999), The Green Mile (Frank Darabont, 1999),American History X (Tony Kaye, 1999), TheHurricane (Norman Jewison, 1999) and Life (Ted Demme,1999). Guaranteed first on the list when anyone mentions prison movies, The Shaws- hank Redemption is the bestknown and most popular example of the genre of all time,aregular in many ‘greatestfilmsever made’ lists.5 Director Frank Darabont has said of it “I’ve gotten mail from people who say ‘Gosh, your movie got me throughareally bad marriage…or it got me throughareally bad patch in my life or areally badillness;orithelped me hang on when aloved one died” (Kermode 2003:np). Darabont later directed The Green Mile (Frank Darabont, 1999) which also proved acommercial success,although Tom Hank’sfeel-goodMom’s apple pieportrayal of guardPaulEdgecombproved rather too sweet for sometastes, Pe-

______5 For example it was ranked3rd in Channel Four’s 100 Greatest FilmsofAll Time [http://www.filmsite.org/filmfour.html, 2nd in theInternet Movie Database Top Rated 250 FilmsofAll Time [http://www.imdb.com/chart/top]and 3rd in ‘The Ultimate Movie Poll’, Empire Magazine, November,2001. Hollywood’s Prison Film – Towards aDiscursive RegimeofImprisonment 157 ter BradshawinTheGuardian wrote ‘(i)f you can stand the three-hour-plusstretch of saccharinegibberish andpatronisingracialpolitics then you’ve gotastronger stomach than me’(The Guardian,25th February, 2000). Since2000, Hollywoodhas produced fewprisonfilms at all.Apart from the re- make of The MeanMachine (BarrySkolnick, 2001) in aBritishprison with football replacing American football, and Alan Parker’s firstforayback into prisons since Midnight Express in the death row film TheLifeand Death of David Gale (Alan Parker,2003),Steven Spielberg’s DreamWorks SKGproduced The Last Castle (RodLurie,2001) in which RobertRedford takesover amilitary prison from the brutalColonel Winter (James Gadolfini); and echoing the earlier boxing in prisonfilmsinthe Penitentiary serieswas Undisputed (Walter Hill, 2002) There have been some interesting filmswhich fall outside Hollywood and the prison genre as discussedthusfar,but nonethelessworthy of note.These includeSpikeLee’s film aboutaman’s final 24 hours before hisseven yearprisonsentence begins – 25th Hour (Spike Lee, 2002)and twohardedged treatments of American penal culture by independent cinema, AnimalFactory (Steve Buscemi, 2000) and Down Time (SeanWilson, 2001).

Escaping Epistemology: Towards ARegime of Representation Despite the growth in contemporary research on prison cinema, muchofthis work has, on thewhole,beentheoretically lightweight. With the exception of ex- cellentwork by Jarvis (2004; 2005), Nellis (2003; 2005) and Schauer (2004), much of the literature is reductive, offering little more than narrativedescriptionwith no attempt to critically engage with broaderepistemologies.Ihavealreadyproposed that genre theory allowsfor afull exploration of the corpusofprisonfilm and its consequent cultural and socio-political significance. However, Iwanttoextendthis to consider whether Hollywood’s construction of incarceration can be considered in Foucauldiantermsasadiscursive practice, which contributes to the fixing of the meaning of imprisonment within aparticular discourse at aparticulartime. Foucault has argued that discourse constructsversions of social reality,such that although things mayexist outside agiven discourse, it is only through discourse that knowledge and meaning are produced (Foucault 1972). Thus, as Hallhas suggested,discourse‘governsthe way that atopiccan be meaningfully talked about andreasonedabout’(Hall 1997a:15). Consequently, meaning is always fixed and refixed (Shapiro1989) by discursive andrepresentationalpracticesatparticular moments, what Foucault termed the ‘episteme’ (Foucault 1972). Drawingon Nietzsche’s argument that central values andideas are culturally and historically constructed (Dean 1994), and reinforcingDerrrida (1973),Foucault contends that there are simply histories of the present – ‘genealogies’ (Foucault 1972) – which reinterpretthe past within socially, culturally andpolitically situateddiscourses:a slippage between historicalmoments that emphasisethe discontinuity of historic 158 Paul Mason events.Thus, forFoucault, termssuchas‘homosexuality’ (Foucault, 1973) ‘madness’ (Foucault,1978) and‘criminality’ (Foucault, 1979) are historically and culturally specific. If we adopt Foucault’s approach here, three questions arise. Firstly, to what extent can we say that Hollywood’s prison film output is adiscursive practice, adominant regime of representation with the power to re/present prison in aparticular way?Second, what does this representation look like andconsist of? Thirdly, if meaning floats, only to be temporarily anchored in specific historic moments, has Hollywood contributed to ruptures and discontinuities in the discourse of prison between one period and another, and if so what havethese meanings been? Finally, have there been what Hall calls different‘transcoding strategies’ (Hall 1997b)of reappropriating the meaning of imprisonment within Hollywood’s output; or counter–discourseswhich exploitthe ambivalencesand complexities within Holly- wood’s dominant discourse of prison? These areclearly considerablequestionsthat requiremorespace than is availablehere (see Mason 2006, forthcoming) consequently, Iaim to offer somepreliminary thoughts on the first question before moving on to explore one aspect of Hollywood’s prison filmdiscourse. For Foucault, discourses are ‘a series of discontinuous segments whose tactical function is neither uniform nor stable’ (Foucault 1990:100).Thus, to view Holly- wood’s prison filmsasthe discursive practice,constructing whatcan be said and known about prison would be problematic. Not least because anumberofother discourses existwhichconstruct knowledge of prison,suchasthe entertainment andnews media, governmentrhetoric, parliamentarydebate, pressure groups campaigns and pubic opinion (Mason,2005).However,whatisparticular about prison compared to other armsofthe criminal justicesystem – the policeand the courtroomfor example – is their inaccessibility,their shrouding in secrecy which negates informed public knowledge about them.Further, despite Foucault’s genea- logical account of the disappearance of the ancientregime’s spectacle of punishment, of gallows and guillotine replaced by thebirth of the prison, visual spectacle persistsincinematic representations.6 Jarvisisright when he suggests that one can read theprison film as ‘a dark panopticonthatregulates thepublicgazeonlaw and order’ (Jarvis 2004:173). The Hollywoodprison filmthen contributessignificantly to the discursive practice around prison. Further, as aregimeofre/presenting penalty, Hollywood domi- nates. In what Maltby (2003) calls the ‘commercial aesthetic’, Hollywood has driven the commodification of entertainmentinpost-warWestern cinema,ensuring thatlikeall corporate strategy, its filmsare seen by the most number of peoplein the most numberofcinemasthe most number of times. Hollywood produces, and contributes to, adiscourseofimprisonmentthroughits power to represent prisonin ______6 Ihave discussed elsewhere Foucault’sgenealogy of modern penalty and its application to theprisonfilm (Mason 2000; 2003) and do not propose to repeat that work here. Hollywood’s Prison Film – Towards aDiscursive RegimeofImprisonment 159 particular ways, more specificallyitis‘theexerciseofsymbolic power through re- presentational practices’ (Hall 1997b:259, original emphasis).InFoucault’s terms, Hollywood’s prison filmsare an exampleofpower producing, througharegimeof representation, discourse on imprisonment. Thus powerisnot primarilyrepressive and restrictive but constructs new objects, in this case “imprisonment”. Further, power does not simplyflowfromacentralised source, it circulates, and is ‘exercised through anet-like organisation’ (Foucault 1980:98), so rather than the top- downcoercion and force suggestedbyMarx(1867/1976) power can solicit consent at micro-levels of society.

TheGrammar of Hollywood: the Discourse of Imprisonment So what does Hollywood’s discourse of imprisonment look like within the prison film genre? In offering some thoughts on this question, my aim is somewhat mo- dest. Indeed, Ipropose not to do threethings. First, to explore allfacets of the prison discourse, nor as Ihave discussed above, to investigate thefixing and refixing of the meaning of imprisonment across thegenealogy of prison cinemaoutlined above. Thirdly, Idonot explore here Hollywood’s counter-discourses which chal- lengethe dominant regimeofrepresenting prison. In the space available, Iwill out- line one aspect of Hollywood’s prisondiscoursewhich has remained ubiquitous in the prisonfilm genre. Jarvis, rightly pointsout that‘theprisonfilmisarepeat offender on the counts of character, plot and mise en scène’(Jarvis2004:167). He also notesthe centrality of the penalbuilt environment to the Hollywood’s treatment of prison, and it is this iconography andits mechanistic resonance that Iwish discuss.

Hollywood’s Mechanistic Discourse of Incarceration

The discourse of machine pervades the prison film like the slammingofdoors andthe turning of keys. For Hollywood, the prison is asystem with impenetrable swathes of regulationswhichgrindonrelentlessly.Thismechanicalrepresentation of punishmentemphasizes the inmate’s struggle to survive and the process of de- humanisation and othering,inherent in incarceration within thepenal system.The monotony and regulation of prisonlife is most oftendepictedbythe highlystructu- red movement of prisoners. In theopening sceneofNumbered Men (1930, Mervyn LeRoy)for example, theinmates trudge round the prisonlandingswiththe number of years of their sentence superimposed above their heads. From TheCriminalCo- de (HowardHawks,1931) to The Mean Machine frequent shots of prisonersma- king their way along steel landings, up and down stairwells to and from their cells has been used to convey the system withinprison, echoingRoffman andPurdy’s description of ascene from The Big House: Rows of cell doorsopen simultaneously and hundreds of prisoners trampinunison to theyard. In the cavernous mess hall,theysit downtoeat the mass-produced fod- 160 Paul Mason

der their keepers call food. The camera tracks along arow of prisoners to reveal faces mainly individuatedbythe manner in which they express their revulsion at the meal (Roffman and Purdy 1981:26). Prison filmsfrequently depict inmates undertaking repetitive tasks,which acts both as anarrativedevice to move from one scenetoanother and as aconstant re- minder to the audience of the mundane regimeofprison. As Abu Jamaal suggests, ‘(t)he most profound horror of prisonslivesinthe day-to-day banal occurrences that turn into months, and months into years, and years into decades’ (cited in Jar- vis 2004:166).The banalityisconstructed in the limited movementofthe exercise yard,ininmatescollecting food; and in thehalfwhispered conversations taking place on stairwells or in and outside cells. Theconstraintinand uniformityofmo- vementserves both to underscore thehighly structured system and routine of prisonlife, and also to extend the machine allegory further.The visible movementof inmates against thebackdropofcoldsteel and grey concrete which contains them, mirrors the workings of amachine – prisonersare the cogs thatturn, driving the huge mechanismofrelentlessly onward. Long tracking shots in many filmsreveal theprisoninterior, dwelling on landings, stairwells, bars and cell doors, stressing the quasi-industrial nature of the prison. In Wedlock for example, the audience follow new inmate Magenta(RutgerHauer) around thehigh-tech maximum security prison to which he has been sent. The camera sweeps around the dripping silver pipes, huge fans andmetal columns accompanied by an insistenthummingnoise. Hollywood’srepresentation Alcatrazinfilms such as The Birdman of Alcatraz, Es- capeFrom Alcatraz and Murder In TheFirst alldwell on theirgrim surroundings. As if to emphasiseits dominance still further, the prison film habitually demonstrates the inflexibilityofrules of the prisonmachine,asRobertStroud(Burt Lan- caster) notes in The BirdmanofAlcatraz, “Iknow ’em. They’rethe sameinall Pens. They tellyou when to eat,when to sleep, when to go to the privy”. Although used primarily to exemplify injustice, theharsh penal regulations serve to accentua- te the unyielding processing of inmates through the prisonsystem.This is expressed through seemingly trivial regulations such as James Stewart’s chain gang routine in Carbine Williams (Richard Thorpe, 1952),paralleled in (amongst many others) ChainGang (Lew Landers, 1950), and Hell’s Highway (Rowland Brown, 1932). Breachofthese regulations is often punished by long periods of solitary confinement, apenalty often represented as harshgiven theoriginaloffence,for example Papillon and Cool Hand Luke.Mechanistic discoursehas beenfundamen- talinHollywood’s prisoncinema, producing other narratives in the genre: escape from the machine, riotagainst the machine, the role of themachine in processing and rehabilitating inmates and, entering the machine from the free world as anew inmate. Asecondpervasive aspectofHollywood’sprisondiscourse, and one linked to themechanistic process and systematic nature of imprisonment is theemphasis on adehumanising process:the death of the menand women from the outside world, Hollywood’s Prison Film – Towards aDiscursive RegimeofImprisonment 161 and the birth of the prisoner as anumber and statisticsofthe inside prisonworld. This processisinitiated at prison reception, and is often shot from the inmate perspective, underscoringfor the audience the routine and regimethatwill stay with theinmatefor the length of their sentence. Frequently this processinvolves the re- linquishing of worldlypossessions to an intransigent prison guard, stripped naked, scrubbed, or hosed, and clothed in prison issue uniform and shoved unceremoni- ouslyintoacell. Versions of this routine are presentinmany films, initiating,par- ticularlyvisibly, the dehumanising process, what we might call the othering of the prisonerfrom her/hisoutside world selfinHollywood discourse. Ihavenoted elsewhere (Mason 2003) how thismasteringofthe body of the condemned, is perhaps most symbolicinthe cutting of hair, which historically has represented an attack on liberty and personal autonomy andisthe most visible difference between inmate and free citizen. The speed and mechanical interpretation of this process, implemented almostimmediately theinmate arrives at the prisonisthe first, and perhapsthereforethe most striking, example of theregulated institutional nature of prison theviewersees. This process has another important function other than highlightingthe process of turningmen into prisoners.The entranceofthe protagonist into aprison resona- tes with audiences, whoselimited knowledge of prison ensuresthey empathisewith the ignorance and fear felt by the new inmate. The audience are subjected to the harsh regime of prison life, the stern officersand claustrophobic cells. Hollywood uses audience ignorance it to elicit sympathy for the new inmate: the naivety of Carmen (Ena Hartman) in falling foraninmate prank in TerminalIsland (Stepha- nie Rothman,1977) and freshly convicted Billy Hayes beingadministered ahor- rendous beating after trusting another inmateinMidnight Express.Hayes’sbeating exemplifiesHollywood’s patternofnew inmates often meeting with aviolent introduction from guards. Chain gangfilmslike Road Gang, Hell’s Highway, IAm AFugitive From AChain Gang, Cool Hand Luke and ChainGangWomen (Lee Frost, 1971) depict guardswhipping inmatesnew to the rigours of hard labour. While in TheMean Machine Paul Crew (Burt Reynolds) is beaten by Head Guard Captain Kennauer,and in Murder In The First Henry Young (Kevin Bacon) had his foot sliced with arazor by Chief Warden Glenn (Gary Oldman). The introduction of violence serves to establish what Jarvis terms‘the exitlessness from the theat- re of cruelty’ (Jarvis 2004:167)

Conclusion My brief discussion of one aspect of thediscourse of imprisonmentconstructed by Hollywood serves merely to beginfleshingout theskeletalframe of my argument. Other important aspects of Hollywood’s prisondiscourse concern,for example, constructions of masculinity and the body, and of prison reform.There are alsokey questions aroundthe dis/continuity of thesediscourses at particular 162 Paul Mason historical moments andcounter-discourses within the Hollywood prison genre. Further, awider analysis might include discourses in punishment narratives outside the prisonfilm genre, in other crimecinemaand thrillers for example; and, of course in filmsmadeoutside of Hollywood. Iamaware that Ihave asked more questi- onsthanIhaveansweredhere. My aimhas been to offer aframework for analysing the Hollywood prison film through combining genretheory and Foucauldian discourse analysis and ideas of representation. Afull and comprehensive analysis which adopts thisposition is like the escaperoute of many aprison film inmate:a lengthy dig, but one which promises lightatthe endofthe tunnel.

Bibliography

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Jarvis,B.(2004), Cruel andUnusual: Punishment andUSCulture, London:Pluto Press. Kermode, M. (2003), BFI Modern Classics: The Shawshank Redemption,London: BFI. Kiminsky,S.(1974), Don Siegel: Director New York:Curtis Books. Levenson,J.(2001), “Insideinformation: prisons andthe media”, Criminal JusticeMat- ters,no. 43, Spring, 14-15. Maltby, R. (2003), Hollywood Cinema,2nd edn. Oxford: Blackwell Publishing. Marx, K. (1867/1976), Capital: Acritiqueofpolitical economyvol. 1,London: Penguin. Mason, P. (1998), “Systemsand process” Images [www.imagesjournal.com/issue06/features/prison.htm]. – (2000), “Watching the invisible:televisual portrayal of the Britishprison 1980-1991” International Journalofthe Sociology of Law vol. 28, 33-44. – (2003), “The Screen Machine: cinematic representations of prisons”, in: Mason P. (ed.), Criminal Visions: MediaRepresentations of Crimeand Justice, Cullompton: Willan Publishing. – (2005), (ed.), Captured By The Media: Penal Discourse in Media Culture,Cullompton: Willan Publishing. – (2006), FromFugitiveToRedemption:Exploring the PrisonFilm,London:Wallflower Press. Mathiesen, T. Prison on Trial 2nded. Winchester: Waterside Press. Matthews,R.(2005), “The Myth of Punitiveness”, Theoretical Criminology,vol. 9(2), 175-201. Muncie, J. and McLaughlin, E. (2002), Criminological Perspectives:Essential Readings, MiltonKeynes: Open University. Murton, T.O. and Hyams, J. (1970), Accomplices To The Crime: Arkansas Prison Scandal, New York: Grove Press. Neale, S. (2003), Genre andHollywood London: BFI. Nellis, M. (2003), “News Media,Popular Culture and the Electronic Monitoring of Offen- ders in Englandand Wales”, Howard Journal of Criminal Justice,vol. 42, no.1: 1-31. – (2005), “Future Punishment in American ScienceFiction Films”, in Mason, P. (ed.), Captured By TheMedia:Penal DiscourseInMedia Culture,Cullompton: Willan Pub- lishing. Nellis, M. andHale, C. (1982), ThePrison Film London: RadicalAlternatives To Prison. Neve,B.(1992), Film and Politics in America: ASocial Tradition,London: Routledge. O’Sullivan, S. (2001), “Representationsofprisoninnineties Hollywood cinema: from Con Air to The ShawshankRedemption”, The Howard JournalofCriminal Justice,vol. 40, no.4:317-334. – (2003), “Representing “The Killing State”: The Death PenaltyinNineties Hollywood Cinema, Howard JournalofCriminal Justice,vol. 42, no.5: 485-503. 164 Paul Mason

Parish, A. (1991), Prison Pictures From Hollywood: plots, critiques, casts andcredits for 293 theatrical and made- for-television releases Jeferson: McFarlane &Company. Parker,J.(1986), “The OrganizationalEnvironmentOfThe Motion Picture Sector” in: S. Ball-Rokeach and M. Cantor, (eds.), Media, Audience and Social Structure Beverly Hills: Sage. Pratt, J., Brown,D., Hallsworth, S. Brown, M. &Morrison, W. (eds.), (2005), The New Punitiveness: Trends, Theories, Perspectives, Cullompton: Willan Publishing. Querry,R.(1973), “Prison movies: an annotated filmography 1921-present”, Journal of Popular Film, vol.2,Spring:181-197. – (1975), The American Prison As Portrayed in the Popular Motion Pictures of the 1930s University of NewMexico: UnpublishedPh.D. Rafter, N. (2000), Shots in the Mirror Oxford:OxfordUniversityPress. Roberts, J. andHough, M. (2002), ChangingAttitudes to Punishment, Public Opinion, Crime and Justice, Cullompton: Willan. Roberts, J., Stalans, L., Indermaur, D., and Hough, M. (2002), Penal Populismand Public Opinion,Oxford: Oxford University Press. Roffman,P.and Purdy, J. (1981), TheHollywood SocialProblem Film: Madness, Despair and Politics from the Depression to the Fifties, Bloomington:Indiana UniversityPress. Root,J.(1981), “Inside” The Abolitionist,No.10, 12-3. Ryall, T. “Genre and Hollywood” in Hill, J. and Church Gordon, P. (eds.),,The Oxford Guide To FilmStudies,Oxford: Oxford University Press. Ryan, M. (2003), Penal Policy and Political Culture in England and Wales,Winchester: Waterside Press. Schatz, T. (1981), Hollywood Genres:Formulas, Filmmaking, And The Studio System, New York: RandomHouse Schauer, T. (2004), “MasculinityIncarcerated: Insurrectionary Speechand Masculinityin Prison Fiction”, Journalfor Crime, Conflict and MediaCulture,vol. 1(3):28-42. Shapiro,M.(1989), “Textualising global politics”in: J. Der Derian. and M. Shapiro (eds.), International/Intertextual relations,Lexington,Mass.:Lexington Books. Silver, A. and Ursini, J. (2004), Film Noir Reader: The Crucial Films and Themes:Bk.4, Pompton Plains: NJ. Sparks, R. TelevisionAnd The Drama Of Crime: Moral TalesAnd The Place Of CrimeIn PublicLife,MiltonKeynes: Open University Press. Tudor, A. (1989), Monsters And Mad Scientists:Cultural History Of The Horror Movie Oxford:Blackwell Publishers. Werner,P.(2000), Film Noir and Neo-Noir,Munich: Vertigo. Wilson, D. (1993), “Inside Observations”, Screen,vol. 34(1):76-9. Wilson, D. and O’Sullivan, S. (2004), ImagesofIncarceration Winchester: Waterside Press. ImagesofCrime and the GermanJustice SysteminGermanTrial Soaps

Monika Fludernik and Martin Brandenstein

Since 1999 German television has had on offeravariety of extremelypopular trial soaps: Richterin Barbara Salesch (Sat 1, 1999), Richter AlexanderHold (Sat 1, 2001), Das Jugendgericht (RTL, 2001), DasStrafgericht: RichterUlrich Wetzel (RTL, 2002) and DasFamiliengericht (RTL, 2002). These series centre on the personofthe judge, who in all five series is portrayed as averyhumane and fair person. By contrast, the prosecutors and defence lawyers in these series fre- quentlysquabble withone anotherand are not consistently portrayed as models of professional probity. All five series clearlyprefer sensational cases and, for reasons of dramatic interest and suspense, emphasise lastminute discoveries and peripeties in court. In thispaperwewould liketoanalyse the courtdocudrama Barbara Salesch from acomparative perspectiveoflegal andliterary studies. This is part of an in- terdisciplinaryresearch project on criminalisation processes funded by the Deut- scheForschungsgemeinschaft,1 which focuses on discursivestrategies of exclusion. In this framework the imaging of the German justicesysteminthese trialsoaps is interestingnot only forits depictionofthe German Rechtsstaat but additionally for thepresentationofcriminality in thefigures of theaccused and/or witnesses given in thesefilms. Any analysis of such television seriesmust, however, start out with ageneral framework of comparison with two horizonsofreference – on the onehandthe nature of actual trials;onthe other hand the literary models of the courtroom drama andofnarrative plot management (suspense, dramatic highlight, peripety etc.). The foremost question that suggested itself to us in this contextwas thequestion in how ______1 The project „Norm,Recht, Kriminalisierung“ wasinitiatedbyMonika Fludernik (EnglishStudies,University of Freiburg, Germany)and combines the research of philoso- phers on ethics and the constitution of moral and legal norms (Hans-Helmuth Gander, Phi- losophy, University of Freiburg)withcriminological research on criminalisation processes (Hans-Jörg Albrecht, Max PlanckInstitute forForeign and International Criminal Law, Freiburg). 166 Monika Fludernik and Martin Brandenstein fartrialsoaps like Richterin BarbaraSalesch (in future: Salesch)should be treated as mere entertainment with no value and no ulterior social purposes at all, or whether such seriesare responsible forsignificantly determining, or at leastcor- roborating, viewers’attitudes towards ‘criminals’.

Warped Realities: The Soap as Fiction

Salesch,likesomeother docusoaps, belongs to apopular genre of televisionpro- grammes that claim to be documentaries andtherefore raise expectations of factual veracity. Salesch,for instance, claimstobebased on real trials;the actresswho plays Barbara Salesch is in fact aformer judge, and the film deploysanumber of ‘reality markers’ (see below). On the otherhand,trial soaps can be discussed as the latestdevelopmentinthe popular televising of professional groups:from the detective movie, the police movie, thehospitalseries(Die Schwarzwaldklinik; Dr. Sloane)and the general practitioner or gynaecologist movie (Frauenarzt Dr. Stefan Frank)tothe vet movie (DerLandarzt; AllCreatures Greatand Small), theforest ranger movie (Forsthaus Falkenau), themedical examiner series (Dr. Quincy; Gerichtsmedizinerin Dr. Ryan), the vicar or nunnery movie (Pater Braun; Um Himmels Willen), and now thejudge series.2 We have chosen series that arecurrently beingbroadcast on German cabletelevision channels. Since crimedetection is particularlysuspense enhancing, many of these genre filmsintersect with detective movies – most obviously Dr.Sloane and Dr.Quincy,but also avariety of crimemovies that ‘offi- cially’ focus not on the police butonthe defence lawyer (EinFall für zwei), the vicar (Pater Braun)orthe reporter(Der Pfundskerl). In these series, adevelopment towardsincreasing realismcan be observed. Thus, in the detective movie, the lone inspectormusingphilosophically on questionsofmorality (as in early episodes of Der Kommissar or Columbo)have given way to cops cruising the slumsintheir patrolcars (DieStraßen vonSan Francisco), to much more realisticdepictions of the policestation (Polizeiruf 110; Dempsey and Makepeace; Wolffs Revier), and an ever more extensiveintegration of the detective’s private lifeinto theseries. At the sametime, thesedevelopments towards greater realism areoffsetbyatendency towardsparodyand comedy which clearly re-fictionalise these films. (Examples, just to namethree,are the dog movie series MeinPartnermit der kalten Schnauze; thenew detectiveseries Monk;and the by now classic Viennese detectivemovie Kottan ermittelt.) The situationistherefore very complex becauseabasic claim for authenticity is counteracted by a‘literary’tradition of previous genremovies and by general developments attaching to all kinds of literature – their tendency to rewrite previous ______2 We are quoting Germanseries since these are the ones we know, and the traditions aboutwhich we speak are partly German. Images of Crime and the German Justice System in German TrialSoaps 167 models and to improve upon them by way of parody. As aconsequence, any analysis of Salesch also needstotakesuchliterary aspects into account. It is therefore immediately obvious thattrial series such as Salesch do not depict therealities of criminal trials.Onthe otherhand, sincemost people do not have any experience of courts, theywill tend to take these images as depictions of such reality – more or less at least. In the discussions of our research group the following generaldepartures from actuallegal practice were noted:3 (a) The filmsare highly selectiveand leaveout much of the paper documentation of the trial. (b) The filmsare veryunrealistic in theirfrequent surprise turns. Most regular criminal court cases are clear from theoutset – much research has been done by the police beforehandsothatunexpectedwitnesses overturningthe casedo not appear on the screen during trial. (c) The high rate of acquittalsinthe series is quiteuntypical(relatesto(b)). (d)The presentationofprosecution and defence lawyers as shoutingatone another is unrealistic. More generally, the prosecutor in many of these series is frequently depicted as very unprofessional in otherrespects, too(harassingthe de- fendantorwitnesses with insinuations; attacking the moral attitude of the defendant/witness). (e) The behaviour and dress of the witnesses and defendants is frequently too in- formalifnot downright vulgar. Womeninparticulararrive dressed in mini- skirts,with generousdécolleté and excessive make-up;younger menoften arrive in full punk gear or in aT-shirtand with atattoo. Swearing is common,as is theuse of highly derogatory labels in referencetoantagonists (die Tussi, die blöde Kuh, dieses Monster etc.) including four-letterwords. (f)The generaltoneofthe trialisexcessively emotional, unlikethe dry and formal tone of real lawsuits. These deviations from ordinary court practice or court realities are clearly motivated by thenecessity of making such series bothentertaining and suspenseful. In imitationofcourtroom drama, theantagonism between prosecutor and defence needstobeunderlined, andthe surprising turnsofeventsclearly relate to thesus- pensevalue of thesebroadcasts. In thecontext of thefeatures (a)to(f) noted above, an analysis of the series from alegal perspectivedemonstrates anumberofmajor omissions in the representationoftrialsinSalesch and the other soaps. German criminal procedurelaw (Strafprozessrecht StPO),demandsextremely carefulformal correctness within the court hearing. The StPO is worked out in a strict formal wayinorder to avoidarbitrary procedures and verdicts. As soon as formalmistakesare made in atrial, the judge can count on the court of appeal to quash his judgement(§§ 352, 344 II StPO). Naturally,the courts aretherefore ex- ______3 Thanks here go to Dr. Manuel Ruby whojoined us for asession discussing two episodes from Salesch. 168 Monika Fludernik and Martin Brandenstein tremely concerned aboutpreventing this. Thus, acourt normally spendsagreat deal of timemaking sure that all formal requirements of afair and just trialare met. As already mentioned above, this applies especially to thepaper documentation of the trial, which is omitted in the Salesch series. Moreover, the formallycorrect examination of all thepointsofevidence is omitted. Instead, without any such disruption, Salesch smoothly proceedstoquestion defendantsand witnesses without needingtoconcentrate on lengthy formalities. As aconsequence,nocareistaken to enlightenthe audience aboutthe troubleit takes to fulfil the demands of an equal, independentand conscientioustrial. This legerdemain attitude towardsthe formalities of trialprocedure mayhave far- reaching consequences for the audience’simage of the Germancourtroom.Obvi- ously,the producersare not particularly concerned about this, and seem to value entertainment over constitutional veracity. Although the absence of formalities may thusbeseennegatively as an unrealistic portrayal of courtcases and might therefore impair people’s confidence in theworkings of the law, one could however also argue that arealistic reproduction of atrial would not only be boring but tend to enhance people’snegativeopinions aboutthe legal profession as beingoverlycon- cerned with abstract rulestothe detrimentofpeople’slives andsituations. Formalitiesare of coursenot completely erased from Salesch.Defendants and witnesses are carefullyinformedabout theirrights; the charge is readbythe prosecutor in full legal form;and the sentenceisread outinlegal format. BarbaraSaleschreminds each witness of theirobligation to be truthfulassoon as they give evidenceormake astatement. Defendants arealsoreminded of their legal privilege (e.g.inthe caseofarelative beinginvolved, §52StPO). Anotherformal standard upheld in the trial procedure is theciting of paragraphs by thejudge and the prosecutor. These paragraphs do not seem to be merely cited as an alibi, as ‘markers’ that this is, indeed, supposed to be aprofessional court trial. However, since these paragraphsare never really explained to the audience, they serve very much aBarthesian ‘reality effect’ (Barthes 1968). In additiontoaninterim reality marker, the citing of paragraphs almost acquires an aesthetic effect as well – the trialbecomes aritual with setelements that appear to be almost ‘chic’. Especially the prosecutor frequently rattles off the paragraphs with the speed (and in the manner) of amachine gun. Theaudience’s lack of knowledge in this respect is at most instrumentalised for gaining respect towards the virtuosity with which the professional trial parties use their vocabulary’.Inaddition, this ritualistic start evokes the impression thatthe prosecutorissober and objective, and thatthis will be the tenor of the trial. However, the depiction of trials in Salesch suggests that thetrustworthiness of Germancourts is less to be judged on the basisofprinciplesofprocedurallaw than by the charisma of protagonist Barbara Salesch. This contradicts the status of the judge in Germancriminal law, where the judge’sfunctionismeant to be more or less an instrumentthathelps the lawtobeapplied correctly in aparticularcase. Images of Crime and the German Justice System in German TrialSoaps 169

The only – important – paragraphinGerman ProceduralLaw that explicitly refers to the fact that thejudgeisindeed aperson – andnot amechanical machine – is to be foundin§261StPO, which contains theregulation that the judge is to pro- nounce the verdict in accordancewith his/her independent conviction of thetruth.4 The wording of §261 StPO also includes the principleoforal proceedings (Mündlichkeitsgrundsatz). This principle ensures that every single exhibit or utterance by awitness of (potential) significance for the verdict – even if it is known to all participants of the trial, e.g. after having studiedthe case file – has to be orally introduced into the trial, before it may be used forthe free evaluation of evidence. The principle of oral proceedings is necessary to provide transparencyand has been instituted to prevent secrettrials in writingsuchaswerecommoninRoman law.In thisrespect,the episodes from Salesch can be called realistic. Nevertheless,it seemsratherstrange that so many case details of importancestillseemtobeun- known to Salesch, and apparently also to thedefence lawyer and prosecutor,although the case has already reachedthe court stage. This perception evolves espe- ciallyfrom the way defendants and witnesses are questioned by Salesch, who really celebratesthe hearing of evidenceinatone suggesting thatmany vitalthings still have not been revealed – as if it were not the prosecutor’sjob to examinethe case thoroughly in advance so that at least themost crucial questions are already answered before the lawsuit reaches thetrial stage! Theamountofknowledge aboutthe case in questiononthe part of the judge, the prosecutor and the defence lawyer is definitely not as reduced as is often the case in Salesch.However, from the dramatic point of view theprinciple of oral proceedings turnsout to be of great practicalvalue forcourt shows: Everything of importance for judgingthe case has to be showntoproduceacredible image of atrial. This automatically providesthe audience with thesamelevel of knowledge about a case as Salesch herself,for only what is orally introduced into the trial maybecon- sidered in the verdict. Dramatic turning points,atwhich the cases seemtobe ‘solved’, often by an emotional eruption of atrial participant (oreven by amember of the audience in the court room)may be introduced whenever theend of broadcasting timedemands it. These frequent surprising turns, as alreadymentioned, are notrealistic at all. They allowthe producers,however, to develop the plot with hardly any restrictions. The other party involved in the proceedings who seemstobecharacterised by his behaviour ratherthan by how he is doinghis jobisthe prosecutor. Theemotional, usuallyharsh andaggressivetoneinwhich he addresses defendantsand witnesses deflects the audience’s attention fromhis expertiseand hisfunctionasarepresenta- ______4 Original wording of §261 StPO:„Über das Ergebnis entscheidet das Gericht nach seiner freien, aus dem Inbegriff der Verhandlunggeschöpften Überzeugung.“ (The court passesjudgement after freelycoming to adecisiononthe basis of insights drawn fromthe trial.). 170 Monika Fludernik and Martin Brandenstein tive of theaccusation of crime.In§160 II StPO5 it says that the prosecutor has to explore the exculpatory facts as carefully as theincriminatory facts of the case! However,asthe prosecutoristhe one who initialises thetrial againstthe defendant, he will, in Salesch as well as in reality, feel the need to justifyhis decisionthat this case needed to go to trial. Were this different, he would have to feel ashamed for having made much ado about nothing. So, even if aprosecutor will hardly behave as depicted in Salesch,there will also in reality exist atendency to denigrate the defendant. Anoteworthy aspectofSalesch (and the other trialsoaps)concerns thesimilar, almost identical structure of how every singlecase is beingheard. Due to the broadcasting time – which allows foramaximumoftwo cases to be dealt with in oneinstalment of Salesch – there are hardly any complications that would cost too much time.6 Expert witnesses, forensic scientists or court interpreters are rarely seen in Salesch,althoughinreality they play amajor role in exploringand evaluat- ingthe facts. Theregularityofthe trialprocedure as showninSalesch in this respect is quiteridiculous. These regularities do, however, add to the impression that (procedural) law is standardised and unerring, even though, as statedbefore, the majority of formalrequirements of atrial do notactually featureinSalesch.Inter- estingly enough, the similar settingofeachtrial does notseem to evoke any bore- dominthe audience. On the contrary,this sort of monotony may evencontributeto the fascination of Salesch.The audience does nothavetorearrange itsexpectations concerningthe formal procedureand the setting of the broadcasts. If that is what they know best and how they like it, they will in most casesfeel comfortable if it staysthatway. Thefrequently repetitive, clichéd and schematised format of the trialsoaps resembles that of popular literature in general. Forinstance, Susan M. Griffin remarks on the sensational novel of the nineteenth century (Wilkie Collins, etc.)and itsmarketingsuccess that sensation fictiondeployed “acommon pool of narrative tropes,but these werenot stable,theydrewonand brokedowndistinct methods of generating strangeness within familiarity, of creating the sense of a weird and different world within the ordinary,everday one”(Griffin67quoting Taylor1998:7).She goes on Writing in the North British Review in February 1863,Alexander Smith character- ized the experience of reading Collins: “If ayoung lady goes into the garden amoment before dinner,you know that someone is waiting for her behind the laurels.If twopeopletalktogetherinaroomonahotsummer day,and one raises the window alittle, youknow that athird is crouching on the gravel below, listening to every word,and whowill be prepared to act upon it at the propertime” (141).Smith de- plored thefeverishexcitement, “thepassion of curiosity”that Collins, “the master of ______5 Originalwording of §160 II StPO: „DieStaatsanwaltschaft hatnicht nur diezur Be- lastung, sondernauch die zur Entlastung dienenden Umstände zu ermitteln und für die Erhebung der BeweiseSorge zu tragen, deren Verlust zu besorgen ist“. 6 At times, the one-hour show brims withevents whencorpses are being recovered off- stage as the trial is proceeding in the courthouse. Images of Crime and the German Justice System in German TrialSoaps 171

mystery”incites in his audience, but his description of the charged engagementof readerswho rapidly turnedthe pagesofTheWoman in White is relevant here. Like the lurid coversthat entice purchasers at railway stalls, robesand masks, when rec- ognized as such,awake audience expectations – expectations basedonpriorexperi- ences – anddirectreading modes. (68)

Theroutinisedshape of the Salesch seriescan in fact be explained as akind of ritual – the fascination of the trialinSalesch mayinpart derive from its similarity to religiousritual, and the interestofthe law case in general depends on the basic shape of abattle between innocent and guilty in which theinnocent aresupposed to win. Not only does the prosecutorrattling offhis paragraphs resemble apriest reading off aprayer; the final revelationofthe verdictand sentencing is reminiscent of thesacred rites of law (insteadofChristianity). Stereotypicalschemata andthe reception process highlight the personal lives of the defendant and witnesses and provideaneatformalisedframe to them. The fact that the physical and personal setting of the court hardly ever significantly changesluckily matches with the necessity of auniform trial. Forinstance, the audience would hardly ever comeupwith theidea of complaining about the neverdiffering,relativelysmall and inconspicuous court room. If the audience got bored, theywouldonlyhavetoremindthemselves that Salesch acts as ajudge within acourt, not as adetective within an actionmovie. In this respectthe credibility andrespectability of Salesch meets precisely with the interests and wishes of producers, who are of course constantlyconcerned about production costs. On the otherhand, the – justifiable and noble – fascination with criminal procedure derivesfromthe many different social constellationsand conflicts that emerge in court. The setting thus provides foralarge varietyofsubjects. This againwould be impossible withoutthe impressive range of statutes in substantive criminal law (materielles Strafrecht)and criminal procedure law (formelles Strafrecht)thatare to be applied in thesameway to each case. Finally, apointthat seemed to be par- ticularlystriking in the serieswas the oddity that guilty parties, often after having beenwarnedthattheyneednot utter anything that would incriminate them,freely confesstheir involvement in the crime, therebydrawing down thelaw’s revengeon themselves. The TV series Salesch therefore conveys it as amoral duty that one has to confessone’s guilt as adefendantwhether being asked or nottodosobya judge. Once more aprinciple is undermined, this time one of the most important principles of all in criminal procedurelaw: theso-called “Nemo-Tenetur-Princi- ple”, abbreviating the Latin phrase: nemo tenetur se ipsum accusare (i.e. nobody is obliged to incriminate himself or herself). This principlemakes sure that the defendant maychoose whether to make astatement or not,§136 I2StPO. In the latter caseheorshe must not suffer any disadvantages at all (Rogall:§136,margin no. 31). These normswere introduced as areaction to trials that were stillcommon in the Third Reich, in which the defendant was physically and psychologically co- erced into ‘confessing’ his guilt (Gusy, C. 2001: Art. 104,margin no. 29). 172 Monika Fludernik and Martin Brandenstein

So unconvincingare theserecurringsolutionstothe questionofguilt thatthe suspicion arises that, in more life-like circumstances, innocent defendants would not be acquitted becausethe guilty parties would not feel the unrealistic urge to confesstotheirinvolvement. When viewed fromthis angle, therefore, the general impression of theseriesthat the German legal system works quiteexcellently and that innocent parties are always rescued from unjust sentencing, on analysis starts to crumble. In fact, this illogicality makes it possible forthe series to solve nearly everycase(there are, however, afew instances of acquittal in dubio pro reo). As with therecurrentlast-minute revelations by persons storminginto the trial session, these surprisingconfessions by the guilty need to be explained dramati- cally as goodplotting. The literary pattern of poetic justice requires the punishment of the guiltyand the acquittal of the innocent. Interestingly,insomeepisodes the series even reaches out towardsatragic effect as when the womanwho has just learned that her husband is responsible for killing her son unintentionallykills the husband and goes to prison for manslaughter, therebyperpetuating aseries of tragic events.Suchtragedies point out thegeneralaesthetic quality of the serieswhich is basednot only on amanifestation of poetic justice butinaddition to this presents the court cases as mini-tragediesorcomedies (if not farces).

Images of the Law

What images of theGermanjudicialsystemdoes Salesch provide? To start with, one has to keep in mind that images of law and crime in court showslike Salesch are not to be analysed in aone-dimensionalway.Ofcourse, images of law in Salesch haveaneffect on the idea people have of the law. But apart from that they also reflect the producers’ ideasofwhat will meet theTVaudience’s expectations. Forcommercialreasons,producers of court showsare likely to be lessinterested in the reality of trials than are producers of documentaries. Therefore the depiction of reality, to theextentthatthere is an attempttoreproduce actual courtscenesrealis- tically, is compromised fordramaturgicalreasons. This, of course, inevitably re- sultsincaricature. Concerning therelationshipbetween thelaw on theone hand, andthe imagingofthe lawincourt shows on theother,itcan be statedthatthere is an interdependencebetween 1) reality; 2) the audience’s expectations of bothwhat reality is andwhat it is supposed to be like;and 3) the desire of the audience for entertainment. Theseoverlapping aims maybefound in other contexts as well. However, what causes considerable feelings of unease in thecontext of court shows is that thepublic’sacceptanceofthe law depends on people’s opportunity to formtheir own opinion about the law. One must not forget that televisionseries like Salesch belong to the few easily accessible sources fromwhich the public is able to gain informationabout thelaw in action. In democratic nations, the media, especially TV,are not without reason called the ‘fourth power’(vierte Gewalt)alongsidethe legislative, judicial and executive Images of Crime and the German Justice System in German TrialSoaps 173 powers. This fourth powercan be said to play withdepicting the second, the judicial power, in quiteacarefreemanner so that theseparation of powers, it couldbe argued,inthisrespect maybeindanger. Thefunctioning of the law is related to the public’sacceptance of the law,which again is widely based on people’s perceptions of whether justice is done. After all, thelegislature as the firstpower cannot affordtoneglect the public’s attitudes towardsthe law. One of the most strikingexamples for these processes is to be found in the way that cases of the murder of minors with previous child abuseare dealt with in the media. Judging from the presentation given in themedia, one might hardly believe thatin2003 ‘only’ five childrenwere murderedafter being subjected to sexual abuse.7 In the news these crimes are coveredindisproportionate detail andinten- sity, suggestingtothe publicthat these are crimes to watchout for. The media does not really care whether such crimes are actually ageneral threat for children or not. What counts alone is the anticipated interest of the readersoraudience in sensational and spectacular matters whose attention soars in direct proportion to the ‘per- versity’ of the crime. Other dangers that ought to be considered as much bigger threatstochildren, like traffic accidents, do not feature accordingly in themedia; they do notmeet the media’s need forsensationalism.Not only are traffic accidents boring, they also do not allow the audience to keep adistancetothe perpetrators,as the spectators know from their own experiencehow easily accidents can happen in traffic (Brandenstein/Kury 2005; Kury/Brandenstein, in press). It is much more convenienttofeel that the murderer and child abuser is somebody entirely different fromoneself, aperson of ideal deviancy, criminality and monstrous otherness. Of course, every single caseofchild abuse is one case too many. But it has to be kept in mind that crimes that are more sensational and evoke more general interest do not necessarily correlate with the quantitativesalience of the corresponding crimes.Byway of comparison:in2003, 208childrenwerekilledintraffic accidents.8 Similar disproportions between the frequencyofoccurrence and media emphasis can be noted in the comparison of traffic deaths and deaths by planecrashes. Very few planescrash,but eachtimeone does there is bigcoverage of the event in themedia, suggesting that airtravel is much more risky than it really is statistically speaking. Theinfluence of the media on one’s feelings of safetycan also be gauged from the comparative feelings of danger one experiences in small countrieswhere the national news carryevery car accidentwith fatal loss of lifeasagainst larger countries that feature only accidents with asignificantly higher number of casual- ties in thenationalnews.

______7 The numbersfor 1999 are five; for 2000 four; for 2001 six; and three for 2002. These numbers include attempted murders. See Bundeskriminalamt(2004:1). 8 The figures for 1999 are 316; for2000: 240; for2001: 231;for 2002: 216. See Sta- tistischesBundesamt(2004): 39. 174 Monika Fludernik and Martin Brandenstein

German legislature in recent yearshas broughtinsignificantly more punitive measures against child abusers.9 In this it obviously did not respond to asensa- tionalriseinthe numberofsexualmurder crimes involving children but to the pub- licdisgust occasioned by the media’s excessivefocus on such cases.Interestingly, it has been demonstrated that parents are actually more worried about their children having atraffic accident thantheir becomingavictim of asex crime(Cf.Innen- ministerium des Landes Nordrhein-Westfalen2004). The public outcry against this typeofcrime,therefore,does not directly correlate with people’s fears regarding their own children but is of amore abstract,one could even say, moral nature. These observations have to be kept in mind when considering the influence of the choiceoftopicsinSalesch.The cases dealingwithmurder forreasons of jealousy, for instance, are overrepresented, whichstrengthens the audience’s notion that crimeand danger have almost exclusivelytodowith sex andviolence, and not, forinstance, with negligent driving causing death. (On the representation of different types of crimesee more below.) Several conclusions can additionallybedrawn from the way Salesch is staged. Theseries provides an extremely positiveview of judges. In particular, unlike the prosecutor,Barbara Salesch makes great effortstobebothunbiasedand friendly to the defendants. This behaviourissignificantly enhanced by the motherly role that sheimpersonatesand which underlines hergeneral sympathy with victimsand defendants (even after they have been convicted). Salesch therefore manifests an ideal version of the law in action. Togetherwiththe fact that in nearly allcases treated in the series theoutcomeis‘just’ – the innocent defendants are shown to be innocent, the guiltyonesare punished – thisaddstothe overallimpressionthatGermanlaw is reliable and trustworthy.The series can therefore be said to reflect the general acceptanceofthe law and the courtsinGermany. When asked in asurvey about their confidence in institutions, the German population placed the police(73%) and the judges/legal system (59%) on ranks one andtwo,whilethe list endedwith the press media (29%) and the church (26%) on ranks 12 and 13 (Noelle-Neumann/ Köcher2002: 619).10 Moreover, the serieshas aclear didactic thrust. Violence is generallydiscounte- nanced, and so is tyrannical behaviour towards wives or other women.The views expressedbythe judge, but also the justice meted out in these court cases, imply that women areindependent agents with theirown rightsand that husbands must not abuse or intimidate them.These attitudesare clearly expressed by both prosecutors andjudgesinSalesch and Das Strafgericht and seem to constitute anorm ______9 In 1998, amuchmorepunitive frameworkfor sexcriminals was introduced. Cf. Albrecht (1999: 864; 869-70). 10 When asked,whether theyhad agoodorabad opinion of theGerman Federal Con- stitutional Court (Bundesverfassungsgericht)the answers were 51% for “agood opinion”, 12% for “abad opinion” and37% were undecided(Noelle-Neumann/Köcher672). Images of Crime and the German Justice System in German TrialSoaps 175 that theseriesisintent on inculcatinginthe audience. Such normscan be described as middle-class values, and it is noteworthy that drug dealersand pimps are dealt with very dismissively in the series. At the same time, the didactic message includes an emphasis on theresponsibility for one’s actions – one needstomakesure thatthe consequences of one’s doings do not resultinpossible injury to others. The didacticelements in the series therefore project the image of arational, non- violent and fair personasthe societal norm,and this ideal conflicts strikingly with the behaviourmanifestedbyalmostall participants in thetrial(defendants, witnesses, prosecutor and defence lawyer). Theonlyrationalperson involved in the trial is frequently the judge herself, who remainsemotionallyuninvolvedand aloof from thetideofrecriminationsand verbal violence that is rocking the courtroom. This takesustoanother interesting aspect of theseries, namely that most witnessesand defendantsare showntobeexcessivelyviolent in theirverbalbehav- iour, and many expresstheir nonconformity with middle-class values by their physical appearance.The preponderance of mini-skirts, scantupper body clothing andexcessofmake-upwith women serving as witnessesisstrikingand aclear in- dication of fictionalisation forsensationalist purposes.Itis, however, not always clearwhether such extravagance in dressnecessarily betokens guiltormoral fail- ing.Although many male and femaledefendants and witnessesthatbehavewith deliberatediscourtesy to the court, appearindisreputable clothing or use exces- sively vulgar and oppressive language,turnout to be guilty of somethingorother, there arealsoseveral episodes in which personsthat seem made outtobethe guilty parties (prostitutes, tramps, punks,etc.) turn outtobeinnocent of the actionswith whichthey were charged,and the guilty party is the doctor or businessman or housewife who had firstseemed to be representative of the good citizenrole. In particular, in many episodes, the defendants and victims engage in shouting matches and duels of recrimination, thereby underlining thepossible guilt of the defendant (he or she has agrudge against the victim). Nevertheless, the defendant maystill turn out to be innocent despite hisorher consistently non-normative behaviour. For instance, in an episode broadcast on July 1, 2005 (a repeat broadcast), the murder of aprosecutor is initiallyattributed to areleased murderer whohad been preparing to takerevengeonthe man responsiblefor hissentencing. Hisformer cell-mate corroborates that plansfor revenge were under way, and the behaviour of theman in courtisdisgraceful, as is his external appearance. Nevertheless,atthe end of the trial, it turnsout thatthe murder was committed by the prosecutor’s son, who triedtokillhis parents in ordertoinherit their money since his parents had refused to continue financing his luxurious idle life of pleasure. As aconsequence of thesepatterns, theseriesboth corroborates socialstereotypesabout nonconformity as well as current normsofdress, politeness and the work ethic – behaviour that violates these norms is immediately suspect – and at the same timesubverts these 176 Monika Fludernik and Martin Brandenstein stereotypes; afew suspectindividuals of non-conformist behaviour and non- normative views actuallyturn outtobeinnocentofthe charges laid against them. Such apattern of simultaneous corroboration and undermining mayberegarded as problematicbecause it underlines that social stereotypesare mostly correct even if at timesthey mayturn out to be incorrect. Although the possibilityofoverturning thestereotypeexists (message: prostitutesorcrooks maybeinnocent), the overall corroborationofstereotypes subliminally tends to confirm the heuristic value of these prejudices, with theresult that no clear refutation of thesestereotypes occurs. Interestingly – presumably anotherdidacticmessage intended by the series – foreigners are frequently shown to be innocent, or guilty only because caught up in their ethnic values which conflict with ‘German’ norms(e.g. revengefor thesake of preserving the family honour). Most worryingly,the sexualisationoffemale witnessesand defendants on thewhole seemstoperpetuatetraditional prejudices against the displayofbareskin, since most commonly women that breakthe norms of respectable clothingturn out to be guilty or morally defectiveinone way or another.Respectablydressed women, on the other hand, are frequently proventobe innocent, withsomeexceptionsinthe case of crimes de passion. Manipulation of theviewers’opinions about the defendants extendsmoreover to thefinal self-defence by thedefendant afterthe prosecutor’s anddefence lawyer’s pleas. It is quite obviousthat innocent defendants who are still under suspicionat thispoint in the trial shouldnow passionately reiterate their plea of innocence. A failuretodosoalmost immediatelycorroboratesthe general impression that they must be guilty. Overall,one canconcludethatthe images of the law conveyed by the Salesch series are on the whole most benign. They enhance the public’s positive opinion of German legalinstitutions and didactically inculcate middle-class normsinthe audience. We havealsoobserved that sensationalism and reality effects correlate with fairly conservative values,contrastingthe thrill of transgression andperversionwiththe disgust, fear andindignation against transgressors. This ambivalence does not only reproduce generalsocietal ambivalence towards crime andcriminals as both fascinating and loathsome (Duncan 1996), it also reproduces constellationsobservable elsewhere in reality televisionshows.AsCynthia Free- land has demonstrated, reality TV both caterstopeople’staste forthe outrageous and yet, precisely because the sensationalismissoextraordinary, alsoconveysthe message that this couldnot happentothe viewer: Athird structuralfeatureofsuch programs is that theyrepresent and defend the values of traditionalreligion and middle-class people. “Cops” suggest that the only criminals the police deal with are low-lifescumbag alcoholics and drug addicts who clearly deservetobelocked up – and who will be locked up. “Rescue 911” thrives on,but simultaneously assuages, typical middle-class worries: can youbesure that your nanny won’tabuse your infant,thatyour childwon’taccidentally impale his throat withatoothbrush, that arapist won’t breakinto your bathroom,orthat a Christmas tree fire won’t burn down your new house? (Freeland 2004: 255). Images of Crime and the German Justice System in German TrialSoaps 177

Freeland goes on to notice that reality TV tendsto“perpetuate thevaluesofpar- triarchy and the traditional nuclearfamily”. Although this latter insightdoesnot completely tally with Salesch and the other trial shows, some conservatism regard- ingwomen’s dress has been noted; and the nuclear family reignssupreme as the norm of values that are howeverbeingtransgressed by most witnesses and defendants. Thenorm is clearly honoured more in the breach than the observance, but it continuestobethe implicit ideal forthe viewers.

ImagesofCrime

Another question perhaps more relevant to thecurrent volume is that of the de- pictionofcrime and‘criminals’ in the series. What we find particularlyinteresting in the trial soaps is the mixture of realistic andliterary aspects as regards the sourcesfor crimeinour society. Salesch andthe othertrial soapspresent alarge range of crimes. Theft, the most common type of criminal behaviour,figures comparatively often. On the other hand, although murder is relatively frequent in the series,itisnot the exclusive type of crimedealt withasinthe usualdetective films. The most common transgression of which defendants are accused is physical violence, either as part of a dramaofjealousy and revengeoraspart of arobbery. The choice of criminal actions is therefore partly realistic by comparison with detective fiction, but much less realistic in down-grading theft, traffic crimes and white-collar crime.11 Inter- estingly,errors on the part of medical practitioners figure quite often in the series but are not avery common type of crimeinthe courtstatisticsatall. From areal- ity-based perspective,the selectionofcourtcases therefore seems to be determined by agesturetowardsgreater realism than in the detective movies,but at the same timebyanemphasis on more spectacular cases thanthe normal fareofGerman courts, in which the snatcher of old ladies’ handbagsand the youngster who has demolished the wine shop’sglass windows presumably figure more commonly than the violence that fills most of the series’ episodes. To some extent, however,one could also argue that thecrimes discussed in the series arethe ones ordinary folk believe they maybecomeinvolved in. This is true of thefactthatthe majority of crimes are connected with adulterous relationships and the jealousy, secrecy and debts caused by such affairs.(Theseries actually seemstosuggest that practically every husband andnearlyevery second wife in Germany have an affair – agross exaggeration.)Moreover, though the most com- monlaw suit concerns physicalviolence, this violence is only asymptom of other

______11 According to the StatistischesBundesamt 2005: 52, 19% of all criminal courtcases were concernedwith theft; 9.9% concerned physicalviolence;but only0.13% murder. For medicalerrors, seeHansis, M.L. (2002):Only atinyamount of errors of medical practitioners play arole within criminal prosecutions. 178 Monika Fludernik and Martin Brandenstein crimeswhich emerge duringtrials – if the root cause is not adultery, it is blackmail, insurance policy crimes, drug dealing, prostitution,mafia-like gang crime, white slavery, andsoon. In this manner the series covers amuch broaderrange of criminal behaviour(much of it alsoquite stereotypical) than is actually presented in the prosecutor’s charge. Some of these, likeMafia-type crimes and white slavery have hadconsiderable prominence in the German national press.The series can therefore also be argued respondtotopical media interest with regard to real-life crime. As already noted, physical violence is themost common charge figuring in these series.Apparentlythe public prosecutorsteps in whenever doctors and hospitals receive apatient whose injuries suggest suspicious circumstances. Thoughthe public prosecutor is required to take up such cases on due suspicion, doctors actually have to maintain confidentiality towardstheir patients so that this confidentialre- quirement is rarely broken.12 Thus, the frequent number of cases in Salesch which deal with violence inside the family is implausible. When this happens in the series, the victimsfrequently deny that anything untoward has happened (wife battering, rape etc.), or they accuse somebody else who is innocent of having beaten them up, in order to shield therealagent. Thus, in the rather farce-like episode (broadcast 16 November 2004) of the husbandthrown down thestairsbyhis vituperative wife, the neighbour who happenstofindthe husbandatthe bottom of thestairs is ac- cusedbyhim of beingresponsible for the injuries.Itisonlythanks to the defendant’s little son thatthe truth comes out. The case is interestingalsobecause it ex- emplifies anon-stereotypical crime – husband battering – and delivers amessage of the condemnation of physical violence which is, extraordinarily,alsodirected at violentwomen. The gender proportionsinthe series are again extremelyinteresting. Whereas, accordingtoprisonstatistics, female crimeisquite underrepresented in reallife (Cf. StatistischesBundesamt 2005:52)13,more than half of the defendants in Salesch and the other trial soaps are women. Even more surprisingly, themajority of thesewomen are accused of serious injuries, manslaughter and murder. This difference canonly be explained from literary tradition in which the female victim figure tends to attract particularlyintensive sympathy, ascenariothatcametobe the determining constellationinthe sentimental novel and persisted well into the Victorian novel. Another possible reason forthe untypicallyhighnumberoffemale defendantsmight be the presumed female audienceofthe series for whom female identificationand disidentification figures are offered. Particularly theimplicit criticism of afailure to observe dresscodes supports ulterior didactic messages on this front, too. Owing to the large female presence as defendants in physical violence cases,however,averynon-traditionalimage of woman as liable to using violence againsttheir partners is createdinthe series, an image that reflects the ______12 Cf. §34StGB: „RechtfertigenderNotstand“. 13 In 2003,only17.6% of all defendants in courts were women. Images of Crime and the German Justice System in German TrialSoaps 179 contemporary more extensive independenceofwomen. On the other hand, many of the womenaccused of crimes are depicted as confined within traditional patriarchal structures from which they have been unable to liberate themselves. Many of the tragedies enactedinthe series concern abused women, who in amoment of despair, hitbackattheir abusersand thereby endupinprison, away from their children and condemnedtothe life of asocialoutcast.Interestingly, the imprisonment of women for drug dealing offences that is commoninthe UK and the USA does not figure in Salesch at all.14 Presumably this is the case because, by Germanstandards, sending the woman to prison forthe drug dealing committed by her partnerisconceived as entirely unjust and would therefore ruin the didactic framework of the series. Moreover, German anti-drug laws are much more lenient than are thoseinEnglish- speaking countries and judgeshave more flexibilityinpreventingmajorinjustice. Havingconsideredthe typesofoffences figuring in the series,let us now turn to the reasons for crimeasemerging fromthe episodes. Postmodern theories within criminology stress the economicaspects of crime, especially theone knownasRa- tional Choice Theory introduced by Gary S. Becker in 1976. By presuming that a (potential) criminal weighs up risks andbenefitsofacrime,this theory nourishes the hope that deterrence by punishment could be apromising means of preventing people from committing crimes. However, this presupposes that theprospective criminal plans his deedscarefully, weighing the risks of arrest and sentencing againstthe advantages arising to him from the commission of the crime. One major problem about thistheoryisthat hardly anyone (apart from jurists) will know or even feel the need to know what thelong-term costs of acrimeare, in case anything goes wrong.Itisrather the riskofbeing caughtthatcriminals areconcerned about. The trial soaps corroborate the fact that very little crimeiscommitted as adelib- erate strategyplanned carefully andweighingthe risksattachedtothe action.Al- though thereare of course suchcrimes (murder, larceny, blackmarket labour) that need asortofcalculation,the majority of offences committed in the series (and also in real life)isthe consequence of spontaneoustemptation,emotional (over)reactionoraneglect of weighing thepossible side effects of one’s actions (e.g.underestimatingthe long-term effects of injuries caused by spontaneous violence). In fact, thetrialsoaps seem to us to be extremely realistic in highlighting as causes of crimeunstable emotional states andrelationships,agenerallackofemo- tional andmoral control, egotismand disregardfor otherpeople’srights, despair and similar emotionally debilitating states of mind, fear of detection(of adultery, for example) and other states of panic as wellasrevenge, jealousyand hatred that have usurped all reasonable faculties of control. These are notall exclusive causes of crime, butdecisivecontributingfactors and can occurinopen combination. ______14 In 2003,merely 10.3% of all people sentenced for drug crimes were women (own calculations based on statistics of theStatistisches Bundesamt2005: 53). 180 Monika Fludernik and Martin Brandenstein

Thus,the twoyoung menwho race their cars causing abad accident; theraped womanwho manages to poison the rapist; themother in despair at the sexual abuse suffered by her daughter manipulating the brakesofher boyfriend’s car – they all act in an extremely irresponsible and emotionalmanner withoutconsidering the consequences of their actions or deeds. Although this is usually said in reference to women who have written out false cheques or to youngmen who steal because they need to have the roller skates or bomber jackets that theirfriendsatschool have,these crimes arecommitted by women andmen who are in fact unable to consider either the harm they are causing to others or the ruin of their own lives which they are preparing for themselves. The audience mayperhaps feel comfortable realising that the crimes in Salesch in many cases are the result of highly specific and emotional, maybe even coincidental, situations. The crimes seemtobesingularones. Therefore the audience need not necessarily identifywith the defendants. As the perpetrators are usually flat (i.e.superficially outlined)characters,the audience mayfeel free to condemn them anyway.This would then contribute to puttingthe criminal actitself into the focusofattention, not the criminal, so that the lawfulnessofthe sentencing maybe measured almost exclusively by principles of proportionality to the seriousnessof thetransgression committed. Aspects of positivegeneralprevention as sociopsy- chological correlatesofnormative principles (Frisch2000: 305) aretherefore even being strengthenedbySalesch. It maytherefore be argued that thedepictionofcrime in thesetrial soaps reflects afairly realistic estimation of the ‘causes’ of crime, with deliberate cruelty, callous disregard of others’lives or moral turpitude figuring on themargins of large central blocks of social, emotional and rationalineptitude and ageneral disability to moni- tor one’s actions and reactions. Suchananalysis of the ‘causes’ of crimestrikes us as quite appropriate for agenerally permissive society in which people’s expecta- tionsofgetting everything have been raised significantly since World WarII. It moreover touchesonaperspective thathas recently won distinctive influence within criminologicalresearch (as in controltheories, forexample): that ‘causes’ of crimeanalysesmust notneglect the defendants’ desire to indulge in the sensual and thrilling experiences that transgression affords (Kunz 2004: §24, 14). The criminal actasameans of achieving acertain goal from this viewpoint recedes into the background. However,thisdiagnosis additionallysuggests an extremely lenientviewofcrime in German society and conflictswith public outcries for tougher punishments discussed under the keyword ‘punitivity’ in criminological research. The casesinthe series,withfew exceptions,depict situations in which many of the viewers might conceivablyhaveacted similarly. Although one could arguethat the message of thesecases is thereforeawarningtoviewersnot to lose control of themselves when attacked by jealousy or otherstrong emotions, the seriescould at the sametimebe argued to send aquite different message, namely the message that we are all poten- Images of Crime and the German Justice System in German TrialSoaps 181 tially in danger of succumbing to criminal actions. If one draws this second conclu- sionfromthe series,one can go on to arguethat the series implicitly counters tough-on-crimepolicies, and if that were the case, theseriesmight be interpretedas an intervention in the currentclimate of demands for rough justice. As with the positiverepresentation of the lawinthe figureofthe judge, Salesch and theother trial seriesmight therefore serve to project apositive image of the German legal system as is.

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Gabrio Forti

1. CesareBeccaria, legality and the “eloquence of the passions” For many Italian (and not onlyItalian)criminallawyers and criminologists, the great Enlightenment legalthinker and reformer Cesare Beccariadoesn’tcease to be arobust source of inspirationwellbeyond the strict boundaries of criminal justice issues. Indeed, Beccariadisplayedaremarkable insightintothe meanderings of modern hu- manminds, being well aware of howfar disregard for legal principles by States or ruling classes can affect generalfeelings, attitudesand behaviors. As in late-modern discussions on uncertainty arising from the inability of governments to rein in savage free market struggles (Bauman,2003: 216-220), he grasped how awidespread perception amongpeopleofanomieand undue privilegesgranted to rich and powerful élitesis bound to generate fear and, consequently, to hinder that clear understanding of social reality which is paramount in order that citizens maketheir public choices rightly and thus that “the republicanspirit”may “breathe not onlyinthe public squares and in the popular assemblies but also within the households, wheremen experience alarge part of their happiness or misery” (Beccaria,1764-1994: 57; Paolucci,1963: 89)1. “Fear” is deemed by Beccaria as having the most significantbearing on behaviors as in human beings “the fear of being injured is greater than thedesiretoin- jure” (Beccaria, 1764-1994: 85; Paolucci,1963, 77). Thesourceoffear among citizens is the sheer uncertaintyabout law andabout actual institutional compliance with legality – nullumcrimen sine lege (“no crimewithoutlaw”) – aprinciple Beccaria so “vehemently advocated”(Brownetal.,2004: 182). “Theview that each citizenshould haveitwithin his power to do all that is not contrary to thelaws, without having to fear anyother inconvenience than that which may result from theaction itself – thisisthe political dogma that should be believed by the

1 While referring,inthisand followingquotes, primarily to the authoritative “Venturi” ItalianeditionofBeccaria's masterpiece, we willuse the EnglishtranslationbyHenry Paolucci,quotingfrom it as “Paolucci (1963)”, duetothe numerous arbitrary manipula- tions of the original text subdivisions thisedition displays. 184 Gabrio Forti

peopleand inculcated by thesupreme magistrates, with the incorruptible guardianship of thelaws. [Itis] asacreddogma without which therecan be no lawful society;ajust recompense to men for theirsacrifice of that universal liberty of action over all things, whichisthe property of everysensible being, limited only by itsown powers. This shapes free and vigoroussoulsand enlightened minds; this makes men virtuous with that virtue which can resist fear, and not that of pliant prudence,worthy onlyofthose who can endure aprecarious and uncertain existence”(Paolucci,1963, 67).

Strictlyrelated to this view, is what Beccaria writes on the “obscurityofthe laws”, and especially on the “eloquence of thepassions”arising from it. He seesasa“very great” evil that “where thelaws are written in alanguage that is foreigntoapeople”, this maybeforced “to relyonahandful of men because it is unabletojudge foritself how its liberty or its members mayfare – in alanguage thattransforms asacredand publicbook into something verylike theprivate possession of afamily”. “When the number of those who can understand the sacred codeoflawsand holdit in theirhands increases, the frequency of crimes will be found to decrease,for un- doubtedlyignorance and uncertaintyofpunishments add much to the eloquence of thepassions”. Withinthe same reflection, Beccaria aptlyunderlineshow useful “the art of printingis, which makesthe public and not some few individuals, the guardi- ans of the sacred laws”.”Andwecan see how it has dissipated the benighted spirit of cabal andintrigue, which must soon vanish in the presence of thoseenlightened studies and sciences, apparently despised, but really feared,byits adherents. This explainswhy we nowsee in Europe adiminishingofthe atrocity of the crimesthat afflicted our ancestors, whobecametyrants and slaves by turns”(Beccaria, 1764- 1994: 18-19; Paolucci, 1963: 17-18).

Beccaria’s thoughts on legality and its role in shaping “free and vigorous souls and enlightened minds” and in making “menvirtuous with that virtue which can resist fear” cannot however be considered separately from his statement,still so crucial for any criminallaw or criminalpolicy discussion, that “the truemeasure of crimes is …the harm done to society”(Beccaria, 1764-1994: 23-24), and thus that theroleofcriminallaw should be to controlbehavior thatisharmful to society and to punish it only in so far as it is proportionate to the harm done (Beccaria, 1764-1994:23; Paolucci,1963: 64).Inother places of Beccaria’s work this idea is betterarticulated, e.g. where he says(Beccaria,1764-1994: 22; Paolucci, 1963: 65) that “they were in error who believed that the true measure of crimes is to be found in the intention of the person who commits them. Intention depends on the impression objects actually make and on the precedent disposition of the mind; these vary in all men and in each man, according to the swift succession of ideas, of passions,and of circumstances. It wouldbenecessary, therefore, to form not only aparticular code for each citizen,but anew law for every crime. Sometimes, with the best intentions, men do the greatestinjury to society; at other times,intending theworstfor it,theydothe greatestgood”. Althoughthe idea of “harm”may seem nowadays certainly “both vague and ambiguous”, as highlighted in awell known namesake work, and a “more convenient “PublicHarm” in the MediaSelection of Crimes 185 abbreviationfor acomplicated statement that includes,among otherthings, moral judgementsand valueweightings of avariety of kinds” (Feinberg, 1984:31), still it playsarelevantrolenot onlyincriminal law, but in criminology as well, beingone of the main parameters enteringinto crimeseriousness ranking (further references in Brown et al., 2004: 3-10) and also into some standards used to define “crime”in away at least partly independent of the constraints of legal definitions(e.g. Hagan, 1987: 48-51; Forti, 2000: 346-375). Beccaria’s assertions on “harm” as the “true measure of crimes” may be analysed and developed in away that reveals how they areconsistent withwhathesaysabout theroleofthe legality principle as wellasthe need that laws arenot written “in a languagethatisforeign to apeople”,inorderthat this is not forced “to rely on a handful of men becauseitisunable to judge for itself” and thus that “the benighted spiritofcabaland intrigue” is dissipated.Imean that all these statements maybe framed within asame “system of thought”, namelyanideaoflegalitywhich encompasses, besides its formal meaning,asubstantialone,the latterreferred to the requirement that there must be a “proper proportion between crimesand punishments”. “It is to the common interest not onlythat crimesnot be committed, but also that they be less frequent in proportion to the harmthey cause society.Therefore,the obstacles that deter men from committing crimes should be strongerinproportion as they are contrary to thepublic good, andasthe inducements to commit them are stronger. There must, therefore,beaproper proportion betweencrimesand punishments” [...] “If pleasure and pain are the motives of sensible beings, if, among the motives for even the sublimest actsofmen, rewards and punishmentswere desig- nated by the invisible Legislator, fromtheir inexact distribution arisesthe contradic- tion, as little observedasitiscommon, that the punishments punish crimes which they themselves have occasioned. If an equalpunishment be ordainedfor two crimes that do notequally injuresociety,men will not be any more deterred from committing the greater crime,ifthey find agreater advantage associated with it”. (Beccaria, 1764-1994: 19-22; Paolucci, 1963: 62-63) It’s also such proportion that allows among citizens the viewthat they have it within their “power to do allthatisnot contrary to thelaws, withouthavingtofear any other inconvenience than that which mayresult from theaction itself”,and thus thatreleases themfromfear, shaping “free and vigorous souls and enlightened minds” and making them “virtuous with that virtuewhich canresist fear”.And such proportion maybedeemed as relatedtothe core of legality (although generally the discussion on this principle is focused on theguarantee it grants againstarbitrary decision by theexecutive and thejudicature) in so far as it prescribes that all socially andlegally relevant interests, especiallythose most unable to defend themselves due to theirsocial weakness, must find an adequate protection by law(Pulitanò, 2005:117-118). As amatter of fact when legislators or judgesdonot sticktothisrequirement of “proportion to harm”, they generatethe same sourceofuncertaintyand fear among citizens and thesamehindrance to their “clearunderstanding of socialreality”which 186 Gabrio Forti arises from any violation of the proper “sacred dogma”oflegality. The more so when the deviation from such requirement maybeascribed to awill of favouringparticular “classes” of menand thusisbound to fosterfurther crimes,breed newwrongs. Equaling thefocus of many contemporary criminal policy discussions,Beccaria wasabletooutline causes and effects of crimeand thus the sensitiveareaonwhich anylegislator should crackdown to cope with it, namelyreducing that citizens’ fear by which most crimes – including whitecollarcrime and corruption – are fed, ensuringthat laws are clear, simple and basedonthe idea “whichisthe foundation of human justice”, namely “commonutility” andtherefore “relations of equality” amonghuman beings (Beccaria, 1764-1994: 23; Paolucci, 1963: 65), as well as fos- tering andspreading knowledge, “whichbreeds evils in inverse ratio to its diffusion, and benefits in direct ratio”. “Do youwant to prevent crimes? Seetoitthat the laws areclear andsimpleand that the entire force of anationisunitedintheir defense, and thatnopartofitisem- ployed to destroy them. Seetoitthat the lawsfavor not so much classes of men as menthemselves.See to it that menfear thelaws and fear nothing else. For fear of the laws is salutary,but fataland fertile for crimes is one man’s fear of another. En- slaved menare more voluptuous, more depraved, more cruel than free men. These study the sciences,give thoughttothe interests of their country, contemplate grand objects and imitate them, while enslaved men, content with the present moment, seek in theexcitementofdebaucheryadistractionfromthe emptiness of thecondi- tion in which they find themselves.[…] Do youwant to prevent crimes? Seetoitthat enlightenment accompanies liberty.Knowledge breedsevils in inverse ratiotoits diffusion,and benefits in direct ratio.[…] Knowledge, by facilitating comparisonsand by multiplying points of view, bringsonamutual modification of conflicting feelings, especially when it appears that othersholdthe sameviews and face the same difficulties. In theface of enlightenmentwidelydiffused throughout the nation, thecalumnies of ignoranceare silenced and authority trembles if it be notarmed with reason”(Beccaria,1764-1994: 97-98; Paolucci,1963: 94-95; italics added). All these statements by Beccaria (as several other we haven’t the space here to quote)onthe relationship of fearaswell as of the “eloquence of the passions” to uncertaintyand obscurity of the laws (in the above illustrated, namely broad, not only formal but “substantial”meaning) and to the related monopoly of knowledge as well as to the privilegeofimpunity held in the hands of fewpeople, may still be deemed relevant today notonly as acentral pillar of any penal system,but also to theunderstanding of theroleofmassmedia in shapingwhathas beencalledthe «criminalityinour minds» (Walter, 1995: 211), «affected,even determined, by factors totally different from those used in crimestatistics andtraditional criminological research» and «created every day through reading the newspaper, speaking to friends andcolleagues,listening to the radio, going to the movies, and – of prime importance – through watching TV programmes»(Kania, 2004:226). Imean that “obscurity of the law” in such broad sensemay lie no less in thetext contents of such laws than in thedistorted presentation of what such laws actually “PublicHarm” in the MediaSelection of Crimes 187 or should punish.Thusuncertainty and fearmay arise just from the “criminality in our minds” that in late modern societies has largely replaced or at least profoundly affected the perception of the criminal justice system.Indeedsuch asystem has beentermeda“nonsystem”, as eachofits “components (or subsystems) operate independently, withlittle coordination anddifferent, if not conflicting perspectives”,having, as theonlyelement linkingits constituent parts the processingof persons suspected of criminal misconduct (Brown et al., 2004: 59-60).Havingof- ten, we couldbynow more properlysay,asthe only element linking its constituent parts, the television coverage of crimes, whosechoices are bound to affect in the public just theperceptionofthe laws defining such crimes and of the principles whichprovide their foundations. Thus fear among citizens that they may suffer any other “inconvenience” than that which mayresult from their actions (and from aproportionate evaluation of the harms they and other people respectivelycause), which Beccaria saw stemmingfrom a criminal justice system disregarding the principles of equalityand legality, mayalso find its source in amedia presentationofcrimes which distorts the real or reasonable seriousness of such actions: namely in apeculiar,often topical media selection of crimenews far removed from the reality of actual crimes and punishments and from theidea that any crimedoingharmtosocietyisdutifully prosecutedinproportion of theharmitself,withnoregardtothe social status of thosecommittingit.

2. Televisionand the wearingdownof “free and vigorous souls and enlightened minds” As recently stated, the eminent formative influence of the media on theviewers’ representation of crimearises from the fact that personal experiences with crimes are scarce, and the media’s depictionfeatures high credibility, whichisparticularly true for TV programmes: “hence,individual concepts of criminalityare much more aproduct of themedia depiction than of real experiences withcrimes” (Kania, 2004: 230; Chermak,2005: 476-477). Moreoverpeople are fundamentally unable to autonomously check the truthofnews reports and, more importantly, are also dependent upon them for the construction of the samereported events (Calvanese, 2003: 165; Chermak, 2005: 477). The seminal statements of Beccaria on therelationship between the “eloquence of the passions”and obscurity of the laws, especiallywhenweconsiderthe law “in action”,better, “in mediatic action”, can be revived and put in connection to the well knownremarks of Bourdieu on theinvisiblecensorshipproducedthrough theinevi- table limits of space and, especially, time,involved in television reporting (Bourdieu, 1997;Forti,2005: XV-XVI). Television,asavisual medium intent on treasuringany precious second of programming time, is bound to narrow the “view of theworld” cherished by the public, not onlytakingawayfromthe timespentonmoreimportant matters, but especially allotting an undue and disproportionate value to everything 188 Gabrio Forti which mayseemspectacular, sensational and dramatic; alogicwhich is beginning to override andinfluence theformand character of print journalismaswell, along a trend franklyrecognizedalso by Italian print as well as television journalists in a recentdebate (Simonellietal., 2005). This media selection of crimesdoesn’t contribute to shaping “free and vigorous souls and enlightenedminds” precisely becausethe seriousness ranking conveyed by the media is not consistent with the actual socialmeaning of the “results”ofcriminal “actions”, namely withthe “harms” thereof,but mostly with thequestfor “spectacular, sensationaland dramatic” events which make up the daily basic ingredients of visual media programming. Equally appropriate as association with Beccaria’s thoughtseemsthe recent analysis by Robert D. Putnam (Putnam,2004: 14-23), on the erosion in America of that “social capital” which, accordingtohis view,referstofeaturesofsocialor- ganization such as networks,norms,and social trust thatfacilitate coordination and cooperationfor mutual benefit: communitiesblessedwith asubstantial stock of “socialcapital” display networks of civic engagementwhich foster sturdy norms of generalized reciprocity and encouragethe emergence of social trust. Such networks facilitate coordination and communication,amplify reputations, and thus allow dilemmas of collective action to be resolved: civicengagement embodys past success at collaboration, which canserve as aculturaltemplate for future collaboration and probably broadenthe participants’ senseofself, developing the “I” into the “we,” or enhancing the participants’ sensibilityfor collective benefits. As amatter of fact,just according to Putnam’s analysis, television has astrong negativeimpact on social capital:39percent of people watchinghardly any television have taken part in public meetings on school or muncipal issues, against a25 percentamong intensive televisionconsumers (Putnam,2004: 280-281). In his viewtelevision is radically “privatizing” or “individualizing” people’suse of leisure timeand thus disrupting many opportunitiesfor social-capitalformation.His analysis attests thatthe growth in timespent watching television dwarfed all other changesinthe way Americanspassed theirdays and nights, giving evidence that Americans watch an average of four hours of television per day, and that television watching consumes 40 percentofthe average American’s free time. Moreover alreadyatthe end of the Eighties,43percent of Americans had declared that they switched on television with no regard forthe broadcast program(2004, 274). This increase has taken effect along with aconstant diminution of one important indicator of social capital and civic engagement: newspapapers reading (Putnam, 2004: 270). Televisionhas made communities (or, rather,whatweexperienceas communities) wider and shallower: in thelanguage of economics, electronic technology enables individual tastes to be satisfied more fully, butatthe cost of the positive social externalities associated with more primitive formsofentertainment. Thus according to Putnam, all electronic entertainment has isolated and privatized American’s leisure time, allowing to consumethishand-tailoredentertainmentin private,evenutterlyalone, promoting isolated andprivate interactions that take place only in the home, and curtailing other social connections. “PublicHarm” in the MediaSelection of Crimes 189

WhilePutnampointsout ageneral diminution of interest fornews in the Ameri- canpublic, also in television news (Putnam,2004: 271-272), according to another studymost Americans(78 percent) get their news from nightly national television newscasts(Gallup1996:117-118; Maguire,2002),wherecrimeisone of the primary subjects claiming10to20percentoftotalnews air time(Maguire, 2002; Dominick 1978; Graber 1980). These views have been somewhat confirmedinItaly, by asurveyabout the “media consumption”bythe Italian population (Censis 2001) whichattests that television is present in 98,7% of households andthis medium is used frequently (at least three timesper week) by 94,4% of individuals interviewed: achoicemostly motivatedby leisure (43,6%) and routine (38,3%). Usageofnewspapers, which reaches 71,8% of households, is frequent for 45,3% of individuals and mostlymotivated by interest (55,4%). It is noteworthy that 81,5% of people interviewed deemtelevision news their«preferredmedium to be updated» (against 42,9% expressingthe same opinion about newspapers) and even 70,3% and 69,2% considerthemasthe «most trustworthy» and the «most complete» source respectively. As to crime news, its coverage by the media hasbeen deemed«balanced», althoughthe public displays alow interest in thesenews, somewhat inversely relatedtoeducational level, being generally8th, but ranking higher (5th) among people having attained alower education level. The high television consumption of Italian people hasbeen confirmed in 2004 (Censis, 2004), with 98,6%ofpeopleusing it (95,5% usually) toward a62,8%ofradio (51,1% usually), 46,0% of newspapers (35% usually) and 43,5% of books(29,9% usually). On the whole the preceding data seemstosupport thediffusion of television but also the confidence of public in its trustworthiness as the main source of information. Such data is however blatantly at odds with what has been established in a more recent Italiansurvey (Censis, 2005) which interviewed asample of 300 youngItalian journalistsaskingwhether they felt their liberty of expression limited and thus unable to report facts without having to undergo undue influences: 50% of themadmitted such limitations,more or less frequently in thecourse of theirwork. Stillmore revealingand disconcerting in this regard arethe results of the Free- domHouse’s annualpress freedom survey,which tracks trends in mediafreedom worldwide since 1980. Now covering 194 countries and territories, this Global Survey of Media Independence providesnumerical rankings for eachcountry, rating their media as “Free”, “Partly Free”, or “Not Free”. Assigning numerical points allows for comparative analysisamong the countriessurveyedaswellasfacili- tating an examination of trends over timeabout that crucial human right stated by the Universal DeclarationofHuman RightsinArticle 19 (“Everyonehas theright to freedomofopinion and expression; this right includes freedom to hold opinions withoutinterference andtoseek,receive, and impart information and ideas through any media regardless of frontiers”). In this survey the examination of thelevel of press freedom in each country has been dividedintothree broadcategories: thelegal environment (whichconsiders 190 Gabrio Forti thelaws and regulations thatcouldinfluencemedia contentaswellasthe government’s inclination to usetheselaws and legalinstitutionsinorder to restrictthe media’s ability to operate), the political environment (based on the degree of political control over the content of news media, including the editorial independence of boththe state-owned and privately-ownedmedia; access to information and sources;official censorship and self-censorship;the vibrancy of the media; theability of bothforeignand local reporterstocoverthe news freely and without harassment; and the intimidationofjournalists by the state or otheractors, including arbi- trarydetention andimprisonment, violent assaults, and other threats) and economic environment (which includes the structure of mediaownership;transparency and concentrationofownership; thecosts of establishing media as well as of production and distribution; the selective withholdingofadvertising or subsidiesbythe stateorother actors;the impact of corruption and bribery on content; and the extent to which theeconomic situation in acountry impacts the development of the media). According to the findings of the Annual Survey of PressFreedom 2005,Italy is ranked 77th (together with Bolivia,Bulgaria, Mongolia and Philippines) and its status currentlyclassifiedas“partly free”,havinglostthree further positions since the Annual Survey of Press Freedom 2004 (where Italywas placed 74th). Sufficeittocompare the data of confidence among Italian people in the trustworthiness of medianews withboththe data mentioned above on freedom perceptionbyjournalists and on general freedomofpress, to seeconfirmedone first consideration: control of media in fewhands and thus lack of freedom of press can be easily concealed, to thepoint that peopleentitled to this right maybeunaware of the level of diminution its enjoyment is actually suffering. We couldalsoengage in the hypothesis(albeit already well foundedonBourdieu’s analysis) that afeedback mechanism is working in this field, namely that television consumption, while eroding the socialcapital of communities, lowers in itself theirability of reacting against infringements to the editorial independence of newspapers and television networksand thus against further worseningsofthe informative and cultural qualities of their contents: afar cry from theconditions required for development of the beccarianideal of “free and vigoroussouls and enlightened minds”.

3. The “spirit of the family” and the media coverage of corporate crime

Just how criminal justice authoritiesare guided and, in turn, tend to perpetuate andlegitimateselection mechanismsofcrime,sohighlyselective are themedia´s choicesingeneral andespeciallynewsstories dealing with criminal matters (Chermak, 2005: 475-478). Journalists and media professionals “decide” what is worthy of the definitionand relevance of crime (Forti, 2000: 53-54),although their “decisions” are mostly guidedbythe evaluation about what is more or less impor- “PublicHarm” in the MediaSelection of Crimes 191 tantfromtheir “newsperspective”, namely based upon newsvalues inherent in criminal facts or in particularfeatures thereof(Losito1993).Wecould thus saythat the media produce ahuge dark figure of crimenews, no less problematic than the dark figureofcrime arising fromthe operation of state control agencies, which makes aprofound impact on the credibility of thoseprinciples(e.g.equality of citizens) forming the base of legal order in democratic societies (Hulsman&Bernat de Celis, 1982: 68-71; Blad et al., 1987:8-9). As stated quite recently, «media workers, sources, and the news-consumingpub- licrelyonshorthand reference schemes in order for reality to be consistent with existingconceptions. The frames usedtodescribe events and groups are conceptu- alized here as organizing devices or conceptual tools. The significance of these frames is in the acknowledgement that there are multiple, competing ways to frame events, and the media, and the sources relied on forthe interpretation of events, work to sponsorand thenpromote preferredmeanings. Reporters are selective in deciding how to portray an event and obviously prefer someinterpretations to other equally plausibleones.Because specific frames are selectedand promoted at the expense of other interpretations, the framing of events has inherent ideological power».(Chermak, 2005: 474). Althoughmedia selectionstandardsand those practicedbylegislators, prosecutors and police do not always overlap,sometimes are they even at odds with each other, in several areas they are quite similar and in any case often tend to mutually enhancetheir respective distorting effects, thanks to thecapitaltheycan make profusely out of the “myth” of objectivity (DePiccoli et al.,2003: 235-239).Asaptly remarked, the media are nowadays among the most important social control institutions in our societies (Chermak, 2005: 477). “Sincethe publicgenerally assumesthat press storytelling is factual, andeven basedonreliable, empiricalbased data,weare guided towardsanunrepresentative and quite narrow worldview. Individuals and representatives of powerfuland po- liticalinstitutions take advantage of this reality as they are accepted as having au- thorityonsuch issues. They are thus giventhe chance to definethe preferred meanings of theseevents and guide the media down aparticular path of representation” (Chermak 2005: 480). Numerous studies, e.g in America (see,alsofor further references,Maguire, 2002)and Germany (see, also for further references,Kury, 2005), have amply shown how distorted is the media´s presentation of crimes. This has long been the case forthe entertainmentmedia, marked by apersistentexaggeration of the prevalence of violentcrime andbyanunderplayingofthe frequencyand severity of other types of criminal offenses, first andforemost virtually ignoring corporate violations of thelaw. By nowalso the news media, particularly newspapers and local television newscasts, have promulgated thesamedistortion by focusing most atten- 192 Gabrio Forti tion on violent crimes and making newspapercoverageand local televisionnews guided by the “if it bleeds, it leads” format. As attestedbyaplethora of researches, thenewsmediafocus the most attention on crimes of interpersonal violence, while devoting minimalcoverage to corporate crime(Bertolino, 2005:229-236), to theeffectthat the popular,distorted,attention continue to be focusedalmost exclusivelyonthe harm caused by the former, although most criminologistswould argue that people have more to fear, both fi- nanciallyand physically,fromcorporate criminals than street criminals. Yet this awareness, already well present in Beccaria,isunlikely to be inferred by viewers of networknewscasts, albeit someevidence hasbeen recently found of asubstantial increase in corporate crimereportinginnationalnewscasts (Maguire,2002). We could thus say that not only television in itself has played and still plays a relevant role in eroding “social capital”, and even in underminingthe ability of public opiniontoperceivethe manipulation to which is beingsubject and to adequately react, butthiseffectisfurtheramplifiedincriminal news duetothe peculiar selectivechoices of media reports in this field. Powerful whitecollars, oftenholding largesharesintelevision networks and newspapers are quite capable of influencingthe media, and have indeed theability to escape public reproach for theirillegal deedsdiverting public attention away from their crimes and towards street andviolent crimes. DrawingagainonBeccaria’s thoughts, we couldsay that these reports are profusely spread with that “family spirit”, which “is aspiritofdetails,limited to trifling facts”, and farfrom “observingthe factsand classifying them in the order of their importance forthe good of the majority”: afeaturewhich,affecting the “criminality in ourmind” is “afertile source” of “contradictions between domestic and public morality”, “inspiring submission and fear”, instead of “courageand liberty”. “Family spiritisaspiritofdetails, limited to trifling facts. The spirit that rules republics, sustained by generalprinciples,observesthe facts and classifies theminthe order of their importance forthe good of themajority. […]Such contradictionsbetween the laws of a family and thefundamental principles of acommonwealth are afertile source of other contradictions between domestic and public morality;theyoccasion, therefore, aperpetual conflictinevery mind. Domestic morality inspires submission and fear;the other, courage and liberty:the firstteaches the limitation of beneficence to asmall numberofpersons, in- volvingnospontaneous choice;the second callsfor the extension of it to all classes of men. Onecommands acontinual sacrifice of selftoavain idol, called ‘thegoodofthe family’(whichisoften the good of no one of itscomponents); the other teaches the pursuit of personal advantage without violation of the laws” (Beccaria,1764-1994: 57-58; Pao- lucci,1963: 89-91). Awell developed “social capital”incommunities is just the opposite of that “spirit of thefamily” branded by Beccaria as afurther source of “submission and fear”. This “spirit of details” is rather typical of those circumscribed relationship networks,creatingfragilebut rigidstructure easily destabilised by stranger presences and likely to encourage friend/enemy attitudes, conducivetofeeling of insecurity and “PublicHarm” in the MediaSelection of Crimes 193 higher fear of crimes(Mosconi &Padovan, 2004:160), as well as,precisely, of the most common way television represents crime, as recently exemplified by the construction of the terrorism scare in America (Chermak, 2005: 493-494). In the media´s presentation of crime we are thus able to identify two ingredients, mutuallysupportive, Beccaria would have deemed conducive to akindofhidden tyranny: widespread fear among citizens andthe ability of the élites (of “the nobles”) of presenting themselves as immune from criminal stigmaand prosecution, namely what Sutherland aptly called the “benefit of business”, by whichthe most powerful group in our societiessecure relative immunity, just as in medieval societies the most powerful group secured immunity by the “benefit of clergy” (Sutherland,1983: 57). As amatter of fact, businessmen and, most of all, corporationsare able to invest in promotingtheir “image”, especially when they haveacontrolonmedia, thus averting public andcontrol agencies’attentionfrom white-collar crime’s dangers and harms(Forti &Visconti, 2007, 496; Simon &Eitzen, 1992: 20 ff.; Reiner, 2002: 387-393; Poveda, 1994:19-27). The lack of public concernfor white-collar crime – contrary to adisproportionate fear of street crimes – is in itself conducive to further economic crimes and discourages themass media from an investigative andcritical approach (Levi, 2005:512 ff.; Forti 2003:113; Lynchetal., 2000: 113- 114, 123; Rosoff, 2005:497 ff.) – thus removing or weakening incentives for control agencies’investigations and prosecutions. The two well knownexceptions (amongothers, Goff, 2001:195-196; Evans et al.,1993:88-92; Lynch et al., 2000:112-113, 121-124; Wright et al., 1996:290-291) in the general lack of interestofthe media for white-collarcrimes – corporate violence(environmentaldisasters, work injuriesordeaths, toxic torts, etc.) and the great financial scandals – are dealt with afocusonly on more striking events, especially whencorporateviolence is concerned or when well-known corporations or businessmen are involved, thus beingsomewhat mesmerized by the “celebrities” (Forti &Bertolino, 2005: xi-xxviii;Levi,2005: 511 ff.;Rosoff,2005:502 ff.; Tum- ber,1995:411; Katz, 1995: 54-55) involved in thescandal.Moreoverthe media is pronetosensationalism andveryrarelytoaclose scrutinyoffacts and causes (Wright et al., 1996: 291 ff.; Goff, 2001: 197 ff.; Lynch et al.,2000:113ff.): they emphasize huge and palpable harms, especially when there is abutcher’s listto count which entirely depends upon the officialdecisions to classify therelevant facts as “crimes”orsimply wrongs. Besides, the media graduallyloses interest duringthe trialand even aconviction generally suffersalackofcoverage that severely limits every educational effect over the public or deterrent effect overcorporate managers. The media coverageofeconomic crime – even in most striking cases – is still largelyreactive: originalinquiries by journalists areextremely rare, in spite of its probable usefulness in white-collarcrimeprevention (Wright et al., 1996: 301-303; Kramer et al., 2002: 279; Fisse &Braithwaite, 1983: 254-260; Rosoff, 2005: 502 ff.). The 194 Gabrio Forti choicebetween an investigativeapproach andapassive one is largely influenced by media resources, by the analysis of possible impacts on advertisement’s incomes of such inquiries, by the risk of being involved in costly legal actions and by apreliminary evaluation of readershipsinterest. Thusmost business coverageissupportive, complimentary and consonant with themedia’s role in reproducing dominantideology (Rosoff, 2005: 497-498; Tumber, 1995: 418),evenifsuddenchanges towardscandal- ized and scandalistic titles, as said,are always frequentafter ahuge financialorviolent corporate crimeisrevealed (Levi, 2005:516 ff.; Wrightetal., 1996: 302-303). The media may, themselves, also be conducive themselves to white-collar crimes (eventhoughindifferent ways than theonesusually assessed in relation to street crimes) (Rosoff, 2005: 497 ff.). Not only throughlack of criticism and flattery that themediagrant to corporations whose deficiencies and anomalies any journalists couldeasily cometorealize, as journalists or editors mayaccept rewards – under differentforms – from corporations eager to get favourable coverage (Rosoff, 2005: 500 ff.;Wright et al., 1996:301-302)oreventhere are businessmen or cor- porationsinvolvedincases of white-collarcrimewho can geteasily such coverage thanks to their proprietary control on the media, as the Italian case abundantly ex- emplifies, with thethick and practically still unresolvedbundle of conflictofinter- ests involving media, politicaland economicpersonalities. Several texts in Beccaria’s work detail other features of crimes by the “greats” deemedespeciallyconducive to “public harm”. First and foremosttheir potential for affectingagreat number of people and, correspondingly, breeding new crimes.

“False,finally, is the ideaofutility which, sacrificing the thing to the name, distin- guishesthe public good from that of individuals. There is this difference between the state of society and the state of nature, that the primitive man harms others no more than is necessary to procure some advantage for himself; the social man, on the contrary,issometimes moved, by bad laws, to injure others without advantage for himself. The despot casts fear and consternation into the heart of his slaves, but it re- boundsand returns with greater force to torment his own heart. The more private and solitary fear is, the less dangerousisittothe personwho makesitthe instrument of his happiness; but the more it is public, and the greater the number of people it affects,the morelikely is it that some careless, or desperate, or audaciously clever per- sonwillsucceed in bendingmen to bis purposesbyinspiring them with pleasant expectations, made all the more appealing by thefactthatthe risk of the enterprise is sharedbyagreater number; and, besides,the value theunhappy setupon their own existence diminishes in proportion to their misery.This is the reason why wrongs breed newwrongs;hate is amorelastingsentiment than love – so much more lasting as the formeracquires strength from continuation of the acts that weaken the latter” (Beccaria, 1764-1994: 95-96; Paolucci, 1963: 88-89). It is also to protect society against public harm arising from the sway of “the right of the strongest” thatespecially “thegreat andrich” should be kept in checkbylaw.

“The great and rich should not have it in their power to set aprice upon attempts made againstthe weak andthe poor;otherwise riches, which are, under the laws, the “PublicHarm” in the MediaSelection of Crimes 195

reward of industry, become the nourishment of tyranny. There is no libertywhen- ever the lawspermitthat, in some circumstances, aman can cease to be a person and become a thing; then youwill see all the industryofthe powerful personappliedto extractfromthe mass of social interrelations whatever the law allows in his favor. This discoveryisthe magicsecret that changescitizensintobeastsofburden; in the handsofthe strong,itisthe chain with whichhefetters theactivitiesofthe incau- tiousand weak.Thisisthe reason why, in certaingovernments that have all the ap- pearancesofliberty, tyranny lies hidden or introduces itself, unseen, in some corner neglectedbythe legislator, where,imperceptibly, it acquires power and grows large” (Beccaria, 1764-1994: 50; Paolucci (1963: 69). It is the power of the great and the rich that empowers them and their deeds to change citizens into “beasts of burden”, but with avengeance,asthey are able to do that under cover, imperceptibly, namely keeping up appearances. The ideaBeccaria so well develops is thus that no overt State capturebyatyrant is needed to have an actual tyrannyestablished,but just asituationwhere “the right of thestrongest” is affirmedand people cease to be persons and become things,seeing destroyed in their minds the ideas of justiceand duty. Aptly, in thesameparagraph quoted above, Bec- caria usesakind of pre-Kafkaeske metaphor of the insect: “men generally set up the most solidembankments against opentyranny, but do not see the imperceptible insect thatgnaws at themand opens to the flooding streamaway that is more secure because more hidden” (Beccaria, 1764-1994: 50; Paolucci, 1963: 69). Just so “imperceptible”, as said above, is the erosion of social capital which makes communities unaware (and increasingly unabletoregain theawareness)of theloss of independence in the media, i.e. to perceivethe “insect” that “gnaws”at their “free and vigorous soulsand enlightened minds”.

4. Themedia selection of crimes: results of arecent research project The highly selective nature and impact of the media´s choices has been confirmed by arecentinterdisciplinary research of theUniversitàCattolica del S.C. di Milano,onThe TV Presentation of Crime (from now on shortened to UC Re- search), lead over atwo-years span,with contributionsbyscholarsbelonging to various scientific areas, especially legal, criminological, psychological and semi- otic-mediological, and discussed during an international Conference that took place between15and 16 May2003inMilan,where several renowned experts in this fielddelivered theirpapers.Whileconductingautonomous investigations, accord- ingtomethods and aims characteristic of their respectiveknowledge fields, all research groups have triedtokeepthe necessary coordinationwith the other ones. Neither of them howeverhas tried to find scientific evidence to the hypothesis, still quite controversialand no more in the mainstream of worldwide communication research (with further references, De Piccoli et al., 2003), about the possible direct causal relationship betweenmediacoverage andcriminalbehaviour, especially vio- 196 Gabrio Forti lent behavior.Ithas rather been deemed productive and appropriate,aswell as proportionate to available research resources, an analysis which should compare spaces/times and contents of criminal news in the media (especiallytelevision), withthe image of crime emerging from data, know-how and scientific backgrounds characteristic of the various disciplinesinvolved. From this comparison it was expected thatsomehints fortheoretical explanations could arise, usefultobetter formulate or confirm hypothesesaboutthe role of media news in prompting people to organize their images, perceptions and understandings of thesocialenvironment where crimes occur; an approach thusmore akin to thosedeveloped within the cultivation (Gerbner et al., 1982, 1994) or the agenda setting(Roberts, 1972)theories, than to the so called hypodermic one (Katz and Lazarsfield, 1955). From such ajuxtaposition of thetwo visions of crime – the scientific perspective and the “newsperspective” – the research hasaimed at identifying afew core problematic areas, defined by the most striking andmeaningful contrastsdiscoveredand to be submitted to discussionand interpretation,also with the help of the same agents (journalists, media professionals etc.) engaged in the “media treatment” of criminal news.Although it wasn’t the aim of the research to find out the reasons why televisiontend to conformtothese stereotypes,adebate with agroup of pro- minent journalists setupduring the Conference (Simonelli et al., 2005)has given insights into thepolitical,structuraland commercial constraints imposed on their choices and having ahugeimpactonthe selective presentation of crimenews. Thelegal-criminologicalresearch(Forti&Redaelli, 2005),inparticular, has studiedspaces and waysofpublicationofthe news regarding crimebysomeofthe main Italian television networks, however analysing the two major national papers too, drawing on such relevant data for some useful comparison between the two kinds of media. The primetimeeditions of newstelevision programmeslike TG1, TG3, TG4, TG5, as well as the newspapers “Corriere della Sera”and “La Repub- blica”,havethusbeenscreenedfor five consecutivemonths (from February 2002 to June 2002). The number and extent of crime news have been gauged, and the incidenceofcriminalnewsonthe generalnewsamountinterms of absolutefig- ures,namely secondsofprogramming(as regardsthe television headers) and squarecentimetres of publication(forpapers),calculated.The aim was initially to measure the incidence of criminal themes within the overall set of news, verifying in which percentagethe audience-readershipreceives information related to crime, in comparison to all other information. With particular regard to thecriticalissueof the definitionofnews as “criminal”, it has beenchosen to classifyassuchall facts deemed punishable by the Italian criminalcode. Movingfromthe knowledge that media description of crimes not always show or convey the awareness that alegally punishable offence has been committed, the survey has also thrownrelief to the usage of words (“penal”, “criminal”, “delinquent”, offencenames,etc.) overtly conveying the criminal character of events referred to during broadcasts or within news texts. The researchassumed that theuse of these termsbythe media has an enormous bearing on public perceptionof“criminal” matters: the labeling of an “PublicHarm” in the MediaSelection of Crimes 197 event as a “crime” contributes indeed to separateitfromits context, from the network of personal and collective relationships from where it has arisen, communi- cating that it has been committed by someone guilty,probably belonging to the specialmilieu of the wicked and cruel people:«to call afact a “crime” means to limitenormously the ability to understand what has happenedand to organize the response»(Hulsman-Bernat de Celis, 1982: 109-110, 114) As an outcomeofthis first analysis, an incidence of crime topics upon the overall amount of news emerged between 12% and 17% on newspapers and between 29% and 40%ontelevisionnews. It is then an undeniable fact that Italian journalistsand media professionalsare greatlyattracted by crime, sharing under this respect the tendency of their colleaguesinseveral other countries, like theUnited Kingdom(Reiner et al. 2000: 183), Germany(Kury, 2005) and the U.S.A., to what hasbeenaptly termed the “commodification of crime”, which makes it amajor part of the daily news (Tunnell, 1992). As clearly stressed by D. Altheide in his paperdelivered at theConference(Altheide, 2005), «crime and feardominate most U.S. newspapers and television newsreports», andthisoverall featureislinkedtoentertainment formats that provide the basic underly- inglogic of commercial television(andnewspapers),and in turnto“fear,” «themost basic feature of entertainmentinpopular culture». This emphasisisnot without effect on criminal justice, social policy, public perceptions of social issues, as citizens «are becomingmore “armed” and “armored”» and «a new social identity – the victim» is being promoted, ready to be «exploited by numerous claims-makers, including politicians, who promote their own propagandaaboutnational andinternationalpolitics».Asaptlystated «the key factor for the high impact of TV images seemstobetheir capacity to emotion- alisethe content»; «what really works is what reallyaffects people – largely regardlessof howrepresentativeorrealistic thecontent might be» (Kania 2004: 242). Besides gauging the general percentage of crime news from the overall amount, the research hasmapped the occurrence of different crimes that are scrutinizedbythe medi.Tothisaim afirst list of offence groupshas been drafted: violentcrimesnot including homicide;violent crimesincluding homicide; crimes against honour; suicides; drug crimes; sexualcrimes; childsexualabusesinthe family; child sexual abuses out of the family; crimes againstproperty,damagesand forgery; economic crime; political-administrative crimes;negligence(notincluding trafficoffences) and environmentalcrimes; trafficoffences;violentpolitical andterrorist crimes;crimes against humanity, war crimes, genocides, racial intolerances;prostitutionand slavery; mafia andorganizedcrimes; othercrimes, not classifiedwithin one of the preceding items.This list hasbeen largelybased, although with somemodifications, on the categoriesofreportedcrimesadopted by the Italian Criminal Judicial Statistics draftedyearlybyISTAT (Istituto Italiano di Statistica). Next to this official statistics list, further categories of newsrelated to crime have been checked by the research, like generaljusticethemes, prison issues, as well as three “cross-sectional” categories focusing on relevant personal features of the offenders(age, nationalityand gender) especially flowing from the criminological research tradition and background: juvenile delinquency; crimescommitted by aliensand immigrants; female crimes. 198 Gabrio Forti

Oneofthe moststrikingfeatures of themedia presentation of crimes emerged fromthe UC Research is thegap between television and newspapers occurrence of property crimes and actual extent of these samecrimes according to official statistics as wellasactual figuresdiscovered through victimization surveys. Property crimes make up 5,2% of total crimenews and only 3,8% of spaceinthe television news, whilethese samepercentagesare higher on newspapers,reaching 15,7%and 5,5% respectively. Diagram 1: Media Presentation of Property Crimes

16 14 12 10 Televisions 8 Newspapers 6 Averages 4 2 0 %no. of news %ofnewstime/space

The average amount of media coverage of property crimesistherefore circa10,4% and4,6%respectively,avalue strikingly at odds with officialstatistics, where these crimes have up 73,6% (year 2000) or 60,2% (year 2002) of total offences reported (see large Table 1 attached below). The gap between mediareality and “real”crime realityisstill wider, if we considerthe well-established criminological notion that property crimes have the highest dark figure rates, making officialstatistics quite unable to adequatelyrepresent the amount of crimes of thistype actually committed. Stilllower is the media coverage of economic crimes, with averages of 1,75% and 1,2%: Diagram2:MediaPresentation of Economic Crimes

2,5

1,5 Televisions Ne wspa pe rs 1 Av erages 0,5

0 %no. of news %ofnewstime/space

Quiteopposite results, howevernoless telling, havebeen revealed by the survey on homicide and violent crimes: “PublicHarm” in the MediaSelection of Crimes 199

Diagram3:MediaPresentation of ViolentCrimes (without homicides)

6 Televisions

4 Ne wspapers Averages 2

0 %no. of news %ofnewstime/space

Diagram4:MediaPresentation of ViolentCrimes (including homicides)

15 Televisions

10 Ne wspapers Averages 5

0 %no. of news %ofnewstime/space

These media figures are strikingly at odds with official crime statistics,where in 2002 violent crimes made up only 2,6% and homicide only 0,4% of all reported crimes. Asimilar distance has been discovered by the UC Research as regardsterrorism (see Diagram5)although in this area acomparison with official data is more difficult,due to the heterogenous legalclassifications making up the group of offences we could label as “terrorism”.Inany case this category reaches an average of 20,4% of news and 31,5% of spaces/times in themedia coverages considered, whileofficialdata, available for the year 2000 only (actually an aggregate made up of differentcrime classes occurring in Italian official statistics), revealterrorism actspresent in 1,63%oftotal registered criminal acts. Diagram5:MediaPresentation of Political Crimesand Terrorism

35 30 25 20 Televisions 15 Ne wspapers 10 Averages 5 0 %no. of news %ofnewstime/space 200 Gabrio Forti

Oneisinduced by thesefigures to remindone´s self of asimilarconclusion growing from aresearch on the American paper Time magazine, which found «an overemphasis on violentstreetcrime,inrelation to the proportion of violent crimes among crimesknown to the police» (HickmanBarlow 2005). Equally revealing a German research discussed duringthe MilanConference, confirming«that TV programmes are usually perceived as not showingrepresentative andrealistic reports on crime», but rather as distorting reality«by (a) selectingoffences,inparticular,overemphasising homicide andother violent and/or sexual offences and at the same time neglecting economic or white collar crime, environmental crime, and the ubiquitous property crime (that [/which] seems to be of minor interest to the public)», and, additionally, exaggerating «the way these handpickedoffences are committed by real offenders in the real world»: «thus, selection and exaggeration seem to be the most important means of distorting reality» (Kania2004: 240) The UC Research hasalso developedamore articulate analysis,wondering, at first, how much space/time was allotted to each of the traditional criminological components of the criminal phenomenon (“fact”, “offender”, “victim”, “control agencies”, especially police,prosecutors and judges, social context),byany news television or paper for each of the selected typologiesofcrimes. From this classification has emerged, among other things, thepoorattention devotedbymedianews to the “human” components of the criminal event, namelyoffender and victim,and instead thewidespace absorbedbythe description of the fact (themore so whenit shows brutal features) and theactionofinvestigatory agencies. This data seem to suggest even further that in spite of the overemphasis put on victimizations feelings of thelargerpopulationinconstructing media news (the fears of the “maninthe street”), the insistingoncitizens protection andthe preference for«the victim’s perspective»aswell as the avoidingtoshow «the offender’s perspective» (Kania 2004: 240-241), actuallytelevisions and newspapersdon’t care aboutvictims as real human beings, but only as stereotypes,asfearful “meninthe street”. On the basis of aset of indicators (e.g. emphasis given on excuses or, conversely, on aggravatingcircumstancesfor the criminal act; “telling the story” of the offender or of thevictim, usingclear-cut reproach wordings,etc.), the UC Research has also ranked all crime news according to a “media gravity index of crimes”, which in turn has been compared with a “legal gravity index of crime” especially constructed for this research and based upon an average of penalties imposed by lawuponeachclass of offences considered. This rating hasconfirmed the wellestablished tendency for televisions and newspapers to emphasise the gravity of traditional street crimes, neglecting the extensiveand long-term effects of victim- less offences like bribery, environmentaland economic crimes. However these lat- tercrimes,aswell as crimes committed by strangers and immigrants, while generally occurring with low frequency in the media (albeit with marked differences in the newspapers and televisions considered), whencovered, receive very often high gravity indexes.The UC Research conclusion hasthusfound astriking counterpart “PublicHarm” in the MediaSelection of Crimes 201 in Americanresearches, “that crimes by persons fromthe upper class, in white collar jobs, and from‘good’ families were presented as unusual and especially news- worthy,sending powerful messages what is usual about crime”; afeature further illustrated in the recentEnron scandal media coverage, where «rather than presenting the Enron offenders as fundamentally different from the rest of us, the articles contextualized theiroffensesinsuch away as to suggest thatthese were just nor- malbusiness people who just went too far in their exuberance for the art of the deal» (Hickman Barlow 2005: 311-312). Alldatacollected by the UC Research seem to support the image of media mostly prone not to describe and trackcrimesasphenomena having extensiveim- plications andimpacts, but ratherasindividual acts, displaying clear-cut outlines andconsequences, as well as rooted in well-defined and easy to establishresponsi- bilities. In Italy too,asalready remarked on the U.S.A., reports about the causes of crimeemphasize “individual level factors” and only rarely suggest “macro-social conditionsasthe source of the problem of crime”;afeaturewhich somewhat explains whynoneofthe solutionsusually called forbythe mediaaddress “the social structural causesofcrime”, so attesting “to the limited range of responses to crime containedwithin media accounts” (Hickman Barlow 2005:311). Theseremarks havebeenrecently applied to the terrorismscare dominatingnews coverage. “The argument here is that themediaframes issues narrowly. In fact, it was somewhat surprising justhow consistentthe structure of media storytelling was following two significantactsofterrorism. Terrorism,acomplex phenomenon withmultiple causes and explanations, is presented clearlyand withoutperspective. The public is not only blinded from understanding anything except the media perspective, but the fearconjuredupfollowing these events provide enough justification to accept responses – war,bureaucraticexpansion, civil rights violations – uncritically and withoutreservation.The terrorist hasbecome one of the United States great fears and has replaced other noteworthydemons.The public has been manipulated by the media and policymakers into believing thatthe natureand causes of terrorism should be of lessconcern than theevils deedsofthe terrorist.Thisisasignificant and important paradigmatic shift.Society’s top social-control powerbrokers and rule-enforcers have takenthe responsibility for protecting society from terrorism. Yet they have neither the means nor afullunderstanding to manage it. Instead, they can more effectivemanage how the public defines terrorism and accepts how best to respondtoit. Effort is focused on defining the problem in away thatisolatesde- cision-makersfromconcern”(Chermak 2005: 494-495). If media professionals had the patience to do this apparently boring, namelynot “entertaining”, skivvyingintothe realityofcrime and the actual harmsthereof, adequately pouring these huge daily experiencesontheirpapers or broadcasts, outside mere local coverage, instead of reinforcing the stereotypes of the “maninthe street” –“obtuse, coward and vindictive”, unable to distinguish among different kind of criminals as targets of his hatred and anxiety, convinced that prisons are 202 Gabrio Forti full of dangerous killers and that criminal lawisthe unique resource to protect so- cietyagainst itsmost disturbing phenomena (Hulsman-BernatdeCelis,1982: 55) – they could make and be made aware of the real population crowding courts and prisons:the weakestand most deprived categories of people, at odds with law as unable to find help to solve their problems. To this actually “most victimized class” belong the “invisibilemen”, like the ones occurring in Ellison’s novel (Ellison 1982),recently analyzed by the Germanphi- losopher Axel Honneth within the framework of his “recognition theory” (Honneth 2003),whosebodies and souls are literally crossed by the “interior eyes” of their fellow citizens.The almost non-existence of prisonsinthe media – except in well sealednewsspaces, timesand areas, when theincreased information mayleadtoside effects like an overemphasis on the need of strictercontrols (Calvanese, 2003: 122- 128) – namely of the place mostly crowded by this “invisible”population, has been confirmed by the UC Research (0,2% of time on television news,0,5% of space on newspapers)and all too well supportssuch massive public dismissal. Stilland finally drawing on the vast and solid foundationsofCesareBeccaria’s work (Beccaria, 1764-1994: 102; Paolucci, 1963:98-99), we shouldtake any possible consequence from his statement that education is “the surest but most difficult way to prevent crimes” (leading the freshminds of youths “toward virtue by theeasyway of feeling, andindirecting them away from evil by the infallible one of necessity and inconvenience, instead of by theuncertain means of command which obtains only simulatedand momentary obedience”). This means that we have to confront the inescapable fact that fosteringand spreading knowledge, which “breeds evilsininverse ratiotoits diffusion,and benefits in direct ratio”,is the sole waytoprovidecommunities with the means of breaking the dangerous feedback effectsstemming from media erosion of social capitalaswell as of keepingtightlywithin legality their powerful élites, intent, precisely with media aid, on massivelydistracting citizens from the enormous “public harm”affected by their deeds (Arnone &Iliopulos, 2005). As quite recentlystated, “it is an inversion of thesocialreality of crimeincapitalistsociety (and, therefore, ideological) to portray the classes and races most victimized within thecapitalistsocialstructure (in termsofalienation, inequality, unemployment, poverty,and crime) as predators on society, whereas the classes that reap alargershare of society’s benefits are portrayed as victims”(Hickman Barlow 2005: 310). Table 1: Comparison between the media occurrence of crimes and crimes registered in Italian judicial statistics draftedbythe Istituto Italiano di Statistica (ISTAT).

Convictions People reportedand ReportedCrimes Crimes Reported Average Percentages year 2000 indictedfor crimes Year 2000 and Prosecuted Newspapers and Year 2000 1.1.2002-30.6.2002 Television Texts Source: ISTAT Source: ISTAT Source: ISTAT Source: ISTAT percentage percentage percentage percentage %news %news total total CRIME TYPES of total totalfigure of total totalfigure of total of total number space(cm2) figure figure crimes crimes crimes crimes violent crimes(without homicide) 6,9% 6,3% 17.270 5,6% 61.851 18,2%252.297 9,5% 39.620 2,6% violent crimes(including homicide) 19,3% 20,9% 4.3891,4%9.282 2,7% 11.810 0,46%6.362 0,4% crimes against thehonour 0,75% 0,35% 1.5060,5%8.229 2,42%35.295 1,37%-- suicides 1,5% 1,2% 7.6152,4%7.615 2,2% 7.6150,3%-- drug crimes 3,25% 2,2% 17.849 5,8% 27.777 8,1% 27.599 1,07%26.152 1,7% sexual crimes 0,85% 0,45% 1.2910,4%2.532 0,75%4.838 0,2% 4.0390,3% child sexualabuses within families 0,35% 0,2% 3.0481%6.017 1,27%7.937 0,3% 2.4980,16% child sexualabuses outsidefamilies 1,4% 1% ------crimes againstproperty, damagesand 10,4% 4,6% 103.16833,4% 118.84435% 1.887.51373,6% 902.19660,2% forgery economic crimes 1,75% 1,2% 5.6681,8%6.431 1,9% 5.9210,23% 3.1310,2% political-administrative crimes 5% 3,75% 23.540 7,6% 17.589 5,1% 27.039 1,05%93.770 6,2% (e.g.bribery) negligence(execept traffic offences) 7,4% 8,8% ------and environmental crimes traffic crimes 3,2% 1,65% ------politicalcrimes, terrorism 20,4% 31,5% 8780,27% 2.0160,58% 41.780 1,63%-- crimes againsthumanity 3,8% 4,1% ------prostitution, slavery 1,2% 1% 2.7730,9%2.548 0,75%3.700 0,14%908 0,06% organized crimes 4,3% 3,7% 1.0990,35% 1.6130,47% 1.0800,04% 7620,05% other offences 3,1% 2,4% -- --2430,01% 1190,008% news on justice system 4,2% 4,1% ------prison themes 0,65% 0,35% ------Juvenile delinquency 1,7% 1,1% 3.6141,2%17.535 5% --10.519 0,7% crimesbystrangers 5,4% 4,2% 58.829 19%64.479 19%---- female crimes 6,3% 7,7% 56.849 18,5%46.116 13,5%---- 204 Gabrio Forti

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Authors

JAN ALBER Albert Ludwig University of Freiburg Jan Alber studied English, Political Sciences, andPhilosophyatthe Universities of Freiburg(Germany) and Reading (GB).Hecompleted his dissertation about the representation of prisons in CharlesDickens’ novels, twentieth-century fiction, andfilm. He is Assistant ProfessorofEnglish Literature at theUniversity of Freiburg andheiscurrently working on his second book (Habilitation)about ‘unnatural’ elements in postmodernistdrama, fiction, andfilm. Majorresearch interests:narrative theory, modernism and postmodernism,Victorian fiction, film.Selected Publications: “The‘Moreness’or‘Lessness’of‘Natural’ Narra- tology:SamuelBeckett’s ‘Lessness’ Reconsidered”, Style 36.1 (2002);reprinted in ShortStory Criticism 74 (2004); “Das Gefängnis im Hollywoodfilm:Straf- vollzugzwischen Fiktion und Realität”, Zeitschriftfür Strafvollzug undStraffäl- ligenhilfe 52.1 (2003); ed. (with Monika Fludernik): Moderne – Postmoderne, Trier: WissenschaftlicherVerlagTrier, 2003; “Bodies BehindBars:The Disci- plining of the Prisoner’s BodyinBritish and American Prison Movies”, In the Grip of the Law: Prisons, Trialsand the SpaceBetween,ed. Monika Fludernik und Greta Olson, Frankfurt: Lang, 2004; “Bibliography of ‘German’Narratol- ogy”, Style 38.2. (2004); “Narrativisation” and “‘Natural’Narratology”, The RoutledgeEncyclopedia of Narrative Theory,ed. David Herman,ManfredJahn, and Marie-Laure Ryan.London: Routledge,2005; “Cinematic Carcerality: Prison Metaphors in Film”, The Journal of PopularCulture,forthcoming; Nar- rating the Prison: Role and Representation in CharlesDickens'Novels,Twenti- eth-CenturyFiction and Film,Literature, Film,Theory, Youngstown, NY: Cam- bria Press, forthcoming. E-mail address: [email protected]

HANS-JÖRG ALBRECHT Max Planck Institute for Foreign and International Criminal Law, Freiburg& Albert Ludwig University of Freiburg Professor Hans-Jörg Albrecht is Director of the Max Planck Institute for Foreign and International Criminal Law. He teaches criminal law, criminal justice and criminologyatthe Albert Ludwig University, Freiburg. From 1977 until 1991 he wasresearchfellowatthe MPI. In 1991 he acceptedanoffer to lecture criminal law and criminology at the Law Faculty of the University of Konstanz. In 1993 210 Authors

he wasoffered thechair forcriminallaw,juvenilecriminal law and criminology at theUniversity of Dresden, where he stayed until 1997. In 1996 he was elected Director of the MPI. He is also guest professor at variousUniversitiesinChina. During the spring semester2003 he was Visiting Fellow at theCambridgeInsti- tuteofCriminology, and in May 2003 he was granted Life Membership at Clare HallCollege, UniversityofCambridge. In May2004hebecameProfessoratthe University of Teheran andapermanent faculty member of the Faculty of Law of Qom High Education Center, Teheran. In March 2005, the Law Faculty of the University of Pécs, Hungary awardedhim thehonorarydoctorate. Hisresearch interestscover various legal, criminological and policy topics, including sentencing, juvenile crime, drug policies,environmental and organized crime, evaluation research and systemsofcriminalsanctions. He has edited and co- edited variousbooks on sentencing, day-finesystems, recidivism,child abuse and neglect, drugpolicies,victimisation,etc. E-mail address:[email protected]

MICHAEL BOCK Johannes GutenbergUniversity of Mainz Professor Michael Bock has studied Sociology and Law at the University of Tübingen,with doctoral degrees in both subjects. He completed his habilitation in 1985 andbecameProfessor of Sociology at the University of Bayreuth, and consequently ProfessorofCriminology andCriminal Law at the Johannes Gu- tenbergUniversityofMainz.Since1995,heholds the Chair of Criminology, Juvenile Law, and Criminal Law at the sameuniversity. He has been Guest Pro- fessor at theUniversitiesofGraz, Austria (Sociology) and Bogota,Colombia (Juvenile Delinquency and Juvenile Law);since 2000, he is also Honorary Pro- fessor at the University of Andes, Bogota. His researchand publications fall into the areas of applied criminology,riskmanagement, history and methodology of social sciences, sociology of crime and sociologyoflaw. He is amember of various scientific and advisory boards, including theMunicipal Prevention Council of Rhineland-Palatinate, the Society of Applied Criminology,the “Knastgruppe”(“Prison Group”),and the Criminological Forum. E-mail address: [email protected]

KLAUS BOTT Hessian State Criminal Investigations Bureau, Center for Criminalistic andCriminologicalResearch Klaus Bott studied Sociology and Political Science at the Free University of Berlin, the University of California, Berkeley, and the University of Tuebingen. Until2007 he was aResearch Associate at the Institute of Criminology of the University of Tuebingen,inaresearch project dealingwiththe criminological knowledgeofchildrenand juveniles. His fields of interest include: concepts of Authors211

crimeinthe early life course, youth criminality, crimeprevention, comparative research of troublesomeyouth groups, processes of migration and integration. Currently he is Assistant Directorofthe Center forCriminalistic and Crimino- logical Research for the Police of Hesse. E-mail address: [email protected]

MARTIN BRANDENSTEIN Max Planck Institute for Foreign and International Criminal Law, Freiburg Martin Brandenstein studiedPsychologyand Lawatthe Universities of Wuerz- burg,Freiburg, andCologne,graduatinginboth subjects.For his diplomathesis he conductedanempiricalstudy on “Victimisation of Juvenile Prisoners”. Since 2004,heworks as aresearcheratthe Max-Planck-Institute forForeign and In- ternationalCriminal Law in Freiburg, co-organisingthe criminologicalsub-project “Hate Crime: Prison Experience andits Impact on Juvenile Violent Crimi- nals”, which is part of an interdisciplinary research project on “Norms, Ethics, and Criminalisation”, funded by the GermanResearch Foundation (DFG).His research interests and publications cover mainly topics at the interface of law andsocial sciences, such as penal sanctions, punitiveness, traffic delinquency, as well as the development of identity, and qualitative social research. E-mail address:[email protected]

ANTHOZOE CHAIDOU Panteion University of Social and Political Sciences, Athens Anthozoe Chaidou (BL,MCrimSc, AristotleUniversity of Thessaloni,Dr. Juris, Albert Ludwig University of Freiburg)isProfessorofCriminology, Juvenile Law, and Corrections at the DepartmentofSociology of Panteion University of Socialand Political Sciences,Athens. She also teaches at twoPostgraduate Pro- gramsofPanteionUniversity (‘Social Exclusion andMinorities’ and ‘Modern Criminality’). Her fieldsofinterestare criminologicaltheory, juvenile delinquency, juvenile law, corrections, drugs,moderntechnology, and social exclusion. Her major publications include: “Junge Ausländer aus Gastarbeiterfamili- en in derBundesrepublik Deutschland. Ihre Kriminalitätnachoffizieller Regis- trierung und nach ihrer Selbstdarstellung”[“YoungForeignersfrom Immigrant Families in FederalRepublic of Germany:Their Criminality according to Offi- cial Records and theirOwn Perception”], Peter Lang, FrankfurtamMain, Bern, New York, 1984; “Positivist Criminology”, Athens,1996; “The Correctional System”, Athens,2002; “Criminological Texts”, Athens, 2003; “TheSocial Con- trol of Juveniles”, Athens(new edition forthcoming). She has also contributed in several national and internationalcollective volumes and journals. E-mail address: [email protected] 212 Authors

NILS CHRISTIE University of Oslo Nils Christie is Professor of Criminology at the FacultyofLaw (Institute of Criminology) of the UniversityofOslo. In addition to criminologyand crime control, his interests include education, drug control, and alternative communities. He is the author of numerous books and articles,among which: Limits to Pain:The Role of PunishmentinPenalPolicy (1981), Crime ControlasIndus- try: Towards Gulags, Western Style (1993/2000), Asuitable amount of crime (2004),most of which have been translated in many languages. E-mail address: [email protected]

MONIKA FLUDERNIK Albert Ludwig University of Freiburg Monika Fludernik is Professor of EnglishLiterature at the Albert LudwigUni- versity of Freiburg. Sheisthe author of The FictionsofLanguageand the Lan- guageofFiction (1993), Towards a‘Natural’ Narratology (1996), which was awardedthe PerkinsPrize by theSociety forthe Study of Narrative Literature, and Echoes and Mirrorings:Gabriel Josipovici’s Creative Oeuvre (2000).She has edited special issues on “Second-person Fiction” (Style 28:3, 1994) and “Language and Literature” (European Journal of English Studies 2:2, 1998), and has, together with Donald and Margaret Freeman, co-edited aspecial issue of Poetics Today (20:3, 1999) on “Metaphor andBeyond: New CognitiveDe- velopments”. Further publications includeseveral collections of essays, among these Hybridity and Postcolonialism: Twentieth-Century IndianLiterature (1998) and Diaspora andMulticulturalism (2003).Work in progress includes a project on thedevelopment of narrative structure in English literaturebetween 1250 and1750, as well as astudy of prison settings and prison metaphors in English literature. Forthcoming are articles on expatriate Indian literature in English, eighteenth-century British aesthetics,and narratological questions. E-mail address:[email protected]

GABRIO FORTI Catholic University of Milan GabrioForti is Professor of Criminal Lawand Criminology at the Catholic Uni- versity of Milan. Editor of theItalian translation of White CollarCrime:The Uncut Version by E.H.Sutherland (Giuffrèeditore, Milano, 1987), he has published books on criminal negligence and corruption, as well as severalessayson organizedand economic crimeand on criminal law reform issues.Heisthe author of acriminology textbook(L’Immane Concretezza,Raffaello Cortina Edi- tore,Milano,2000). He has recently lead avast researchontelevision and crime, editingthe book which encompasses, together with the main research results, the proceedings of an internationalconferencethereupon (La Televisione Authors213

del Crimine,Vita ePensiero, Milano,2005) and has just undertakenamultidis- ciplinary research on corporate criminal liability. E-mail address: [email protected]

HEDDA GIERTSEN University of Oslo HeddaGiertsenisProfessor of Criminologyatthe FacultyofLaw (Institute of Criminology) of the University of Oslo. E-mail address: [email protected]

JÖRG HUPFELD University of Bern Jörg Hupfeld(Dr.phil.,Dipl.-Psych.) is SeniorLectureratthe Departmentof Psychologyofthe University of Bern. His fieldsofinterest include: morality, distributive and retributive justice, procedural fairness,conflict resolution, and crimeprevention. Hismajorpublicationsare: JugendrichterlichesHandeln. Eine Analyse der Reaktionenauf Rückfalldelinquenzaus psychologischer Per- spektive [Juvenile-court judges: Apsychological analysis of their reactions to recidivism], Baden-Baden, Nomos (1996); “Richter- und gerichtsbezogene SanktionsdisparitätenimJugendstrafrechtsberech”[“Sentencing disparitiesbe- tween jouvenile-courts and juvenile-court judges in Germany”], Monatsschrift für Kriminologieund Strafrechtsreform (1999); (with M.E. Oswald, S.C. Klug &U.Gabriel) “Lay-perspectivesoncriminal deviance, goals of punishment, and punitivity”, Social JusticeResearch (2002). E-mailaddress: [email protected]

HARALD KANIA Landeskriminalamt Nordrhein-Westfalen Harald Kania is apsychologist and acriminologist. He worksasSeniorResear- cher in the Department for Criminological Analysis at theLandeskriminalamt NRW [Crime Investigation Authority of NorthRhine-Westphalia]. Hisresearch interests and publications include thephenomenology and psychology of violent crimes, the interaction of media and crimeaswell as the psychology of crime perception. E-mail address:[email protected]

HANS-JÜRGEN KERNER EberhardKarl University of Tübingen Professor Hans-Jürgen KernerisDirector of theInstituteofCriminology and Professorofcriminology, juvenile justice, corrections andcriminalprocedure at theLaw Faculty of the University of Tuebingen. He is President of the German Foundation for CrimePrevention and the ResettlementofOffenders, as well as 214 Authors

President-Elect of the European Society of Criminology. Hisfieldsofinterest are:child delinquency, youth criminality, criminalcareers, desistance of crime, organizedcrime,alcohol and drugs, crimeprevention, sanctioning structures and effects, methodological and substantial issues of crimestatistics. He has published extensively in all of these fields,mainly in German andEnglish language. E-mail address: [email protected]

RONNIE LIPPENS Keele University Ronnie Lippens is Professor of Criminologyinthe Department of Criminology at Keele University. His research interests include,interalia, images and im- ageryoflaw,peace andjustice.Hehas published on these topics in numerous chapters and articles, including an edited collection on “Imaginary Boundaries of Justice” (Oxford,Hart, 2004). Other researchinterests include social theory and organizational ethics.Hehas published on these in arange of scholarly ven- ues. E-mail address: [email protected]

PAUL MASON Cardiff University Paul MasonisSeniorLecturer andDirector of Postgraduate Research at the School of Journalism, Media and Cultural Studies, Cardiff University.Hehas written extensively in the fieldofcrimeand media. His books include Criminal Visions:media representationsofcrime andjustice (ed.2003), Captured by the Media: Prison Discourse in MediaCulture (ed. 2006) and Policing andthe Me- dia: Facts, Fictions and Factions (with Frank Leishman, 2003). He runsthe Prison MediaMontoring Unit (PMMU) whichscrutinizesBritish media coverage of prison and prisoners. He also edits [jc2m]Journalfor Crime, Conflict and Media Culture andisamemberofthe prison abolition group, No More Prisons. E-mailaddress: [email protected]

JAYNE MOONEY City University of New York Jayne Mooney is Lecturer in Criminology at the School of Social Policy, Soci- ology and Social Research of the University of Kent. Directorofthe North Lon- don Domestic Violence Survey andvarious local crimesurveysincluding the Is- lington StreetCrime Survey and the Miranda Crimeand CommunitySurvey. Herresearch interestsinclude patternsofviolence,domestic violence,crimeand theinner city,victimisation surveys and the experiences of the Irishcommunity in London.She is the author of Gender, Violence and the Social Order (2000), Palgrave,and awiderange of articles forjournalsincluding Critical Criminol- Authors215

ogy, Social Justice, Feminist Review, American Journal of Sociology and Pro- bation Journal and chapters foreditedcollections. E-mail address:[email protected]

NIKOS PARASKEVOPOULOS AristotleUniversityofThessaloniki Nikos Paraskevopoulos is Professor of Criminal Law at the Department of Law of Aristotle University of Thessaloniki. He was President of the ‘Therapy Centre forDependent Individuals’,one of themajor drug treatment, preventionand research organizations in Greece. He has served in severalnational andinterna- tionalscientificand policy committees. Fields of interest: criminal law, human rights,criminal policy (formermember of theCouncil of Europe Committee C.D.P.C),prisons and social reintegration of ex-prisoners,and drugs. His major publications include: The Concepts of Morals and Immoral Act in Sexual Of- fences (1979), Profile and Criminal Responsibility (1987), Theory of Penalties (withL.Margaritis, 6th edition, 2000), Criminal Law – GeneralPart (with I. Manoledakis, 1999), Drug Offenders and Penal ControlinGreece (2ndedition, 2004), as well as contributions in journals and collective volumes. E-mail address: [email protected]

KERSTIN REICH EberhardKarl University of Tübingen Kerstin Reich studied Psychology at the University of Tuebingen.Since 1998 sheisResearch Assistant at the Institute of Criminology of the University of Tü- bingen,inaproject dealingwithprocesses of integration, social rejection, deviant and criminal behaviour of young male Germansfrom Russia.She is amember of the Scientific BoardofMigration and Integration, Baden-Württemberg, and of EUROGANG-Network (Research GrouponYouthGroups and Gangsin Europe). Fields of interest: youth delinquency in the context of migratory processes;concepts of crimeinthe early life course; comparative research of trou- blesomeyouthgroups. Majorpublications: (with E.G.M. Weitekamp) “Violence among so-called Russian Germans in the Context of the Subculture of Violence Theory”, in: R.A. Silvermanetal. (eds.) Criminology at theMillenium,Dord- recht, Kluwer (2002); “Delinquent Behaviour: One Possible Response to Migra- tion Related Problemsfor Young MaleAussiedler?APsychological View”, Schriftenzum Strafvollzug,Jugendstrafrecht undzur Kriminologie,Godesberg, Forum (2003); “Integrations- und Desintegrationsprozesse junger männlicher Aussiedleraus der GUS. EineBedingungsanalyseauf sozial-lerntheoretischer Basis”, Kriminalwissenschaftliche Schriften,Münster, Lit (2005); (with E.G.M. Weitekampand H.-J. Kerner) “WhydoYoung MaleRussians of GermanDe- scent(Aussiedlers)TendtoJoin or Form Gangs Where Violence PlaysaMajor 216 Authors

Role?”,in: S. Decker and F. Weerman (eds.): European Street Gangsand Trou- blesomeYouth Groups,Walnut Creek,Altamira(forthcoming). E-mail address: [email protected]

ROBERT REINER London SchoolofEconomics RobertReiner is ProfessorofCriminology, and currently Convenorofthe Law Department. He was formerly Reader in Criminology at the University of Bris- tol,and at BrunelUniversity. He has aBAinEconomics from Cambridge Uni- versity (1967), and MScinSociology (withDistinction) from the London School of Economics (1968), aPhD in Sociology from Bristol University (1976), and aPostgraduate DiplomainLaw (withDistinction) from City Uni- versity, London (1985). He is authorofTheBlue-Coated Worker (Cambridge UniversityPress, 1978); The Politics of the Police (Wheatsheaf, 1985; 2nd ed. 1992; 3rd ed. OxfordUniversity Press,2000); ChiefConstables (Oxford Uni- versityPress1991);and editorof: (with M. Cross) Beyond Lawand Order (Macmillan, 1991);(with S. Spencer) Accountable Policing:Effectiveness, Em- powerment and Equity (London, Institutefor Public Policy Research,1993); (with M. Maguire and R. Morgan) TheOxfordHandbookofCriminology (Ox- fordUniversity Press,1994; 2nd ed. 1997; 3rd ed. 2002; 4th ed. 2007); Policing (Aldershot, 1996); and Lawand Order: An Honest Citizen’s Guide to Crimeand Control (Polity, 2007). He has published over one hundred papers on policing and criminal justice topics.His present research is astudy financed by the Eco- nomicand Social Research Council analysing changing media representations of crimeand criminal justice since theSecond World War. E-mail address:[email protected]

TELEMACH SERASSIS Panteion University of Social andPolitical Sciences,Athens Telemach Serassis is asociologist and politicalscientist.Heworks at the De- partmentofSociology of Panteion UniversityofSocialand PoliticalSciences, Athens.His fieldsofinterestincludesocial control, social exclusion, state theory, criminologicaltheory and historical criminology. He is co-editor of Images of Crime: Representations of Crime and the Criminal in Science, the Arts and the Media (with H.-J. Albrecht and A. Koukoutsaki, Edition Iuscrim,Freiburg, 2001) and Images of Crime II: RepresentationsofCrime and the Criminal in Politics, Society, the Media and the Arts (withH.-J. Albrecht and H. Kania, Edi- tion Iuscrim, Freiburg, 2004). In additiontohis contributionsinImages of Crime,articlesand translations of hishave appearedinjournals and collective volumes. E-mail address: [email protected] Authors217

DANIEL VYLETA Fitzwilliam College, Cambridge Daniel M. Vyleta is acultural historian. He is Junior Research FellowatFitzwil- liamCollege, Cambridge. His main fields of interest are history of crime, criminology and anti-Semitism,and crimefiction. Recent publications include a chapter on the ‘Cultural History of Crime’ for Blackwell’s Companion to Nine- teenth Century Europe (2005),and an articleentitled ‘Jewish Crimes and Mis- demeanours: In Search of JewishCriminality(Germany andAustria, 1890- 1914)’, European History Quaterly,35:2 (2005). His PhD thesis on scientific and popular narratives of criminality in Vienna at the turn of the last century is currently being turned into abook. E-mail address: [email protected]

JOCK YOUNG City University of New York Jock YoungisProfessorofSociology at the School of Social Policy, Sociology and Social Research of the University of Kent, and aFellow at the Royal Soci- ety of Arts. He has published numerousbooks andarticlesonthe sociologyof deviance,criminology and mass mediastudies. Recent books include: “The NewCriminology Revisited”(co-edited with P. Walton) (1998)Basingstoke: Macmillan; “TheExclusive Society: Social Exclusion, Crimeand Difference in LateModernity” (1999) London:Sage; and “The New Politics of Crimeand Punishment” (co-edited with R. Matthews) (2003) Devon: Willan. E-mailaddress: [email protected] KRIMINOLOGISCHE FORSCHUNGSBERICHTE

Max-Planck-Institut fürausländisches undinternationales Strafrecht,Freiburg Herausgegeben vonHans-Jörg Albrecht undGüntherKaiser

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