Introduction to special issue on unmasking power in criminal law and justice

The theme of this special issue is unmasking power in the criminal legal system. This involves a differentiation between the ideals (or mythology) of the criminal legal system and the reality of how it is practised. The special issue arose from a symposium on the theme of Unmasking Power in Criminal Law and Justice held at the University of Technology Sydney on 9 November 2022 and funded by the Faculty of Law. The symposium brought scholars together to consider papers that drew on a breadth of interdisciplinary and theoretical perspectives to address how power impacts the regulation of conduct and entities by the criminal legal system.

One ideal of the criminal legal system, upon which its legitimacy and authority is ostensibly premised, is justice for all. This is expressed in the concept of the Rule of Law, which can be conceived of in various ways, but at a minimum expresses the ideal that all are subject to the law. Accordingly, power relations are written into our concepts of justice—protecting individuals from the arbitrary power of the state (with various procedural rules such as the burden of proof) and holding the powerful to account.

Also inherent to the Rule of Law is the ideal of equality before the law (Dicey, 1889, p. 181). However, as Norrie (2014, pp. 30–31) has observed, the criminal law uses a language of universal neutrality to mask its unequal application:

Criminal law protects particular social interests but does it through a language that is universal and general, and cast in terms of respect for the individual before it … From the start, the common law employed a universal language in a world of social inequality and division, a world of private property.

Instances in which this image of equality before the law is undermined by a reality of unequal treatment abound. One could point to criminal offences and defences that incorporate the so-called reasonable person standard, historically modelled on a white, heterosexual male (Barter, 2016); legislation and common law rules that result in the underrepresentation of Indigenous Australians on juries (Anthony & Longman, 2017); and the judicial failure to extend the common law defence of necessity to the homeless who might trespass to seek shelter, or the hungry who might steal to avoid starvation (London Borough of Southwark v. Williams, 1971; discussed in Norrie, 2002). In each instance, the law relies on abstract notions of fairness to preserve a structure that subjugates the marginalised.

This special issue proffers a meditation on the myriad ways in which the law disproportionately restricts the liberty of, and harms, the disempowered and acts to protect the powerful. Given the disparity of power and resources, there is a long-term concern in legal theory about the protection of individuals against the arbitrary exercise of power by the state. Part of this protection, as Dubber (2011, p. 38) has recognised, involves attempting ‘to place constraints on the essentially discretionary exercise of police authority’. But the avoidance of arbitrariness also extends to ensuring that the law is capable of being understood and followed by the public.

The first three articles in this special issue contemplate the impact of power in the development of criminal law and its application to individuals, and how power relations are shaped and contested through discursive acts. Methven has previously analysed how judicial interpretation of offensive language laws naturalise a reality in which police occupy a position of authority in public space (Methven, 2018). In this special issue, Methven (2024) extends her consideration of the relationship between criminal law and discourse to judicial interpretations of the word cunt. This swear word is the second most popular subject of offensive language charges in New South Wales, after fuck (Trollip et al., 2019). Methven interrogates common myths circulated by judges about the ‘c-word’. These include that cunt is inherently sexual; it conveys a singular meaning; it is an unnecessary part of the English language; and that the term cunt offends women. Sociolinguistic research is employed by Methven to demonstrate how these ideas might be countered by criminal defence lawyers. In her article, Methven considers the relationship between language, power and resistance. The power of words, she contends, is impossible to extricate from social and legal proscriptions on their use. A well-known function of swearing is to express opposition to powerful ideas, people or institutions. First Nations Australians, for example, have creatively deployed phrases such as ‘white cunt’ to ridicule white authority. And while the criminal censure of cunt can amplify the word’s power, there are also social efforts to reclaim the ‘c-word’ and defuse it of any offensiveness.

Like Methven, Jaya Dadwal (2024) considers the power of discursive constructions in the criminal justice system. She analyses Ghislaine Maxwell as a complex figure of pity, extreme wealth and power who cannot easily be slotted into the victim-perpetrator dichotomy. Dadwal notes that the criminal legal system has long struggled with female perpetrators of violence and sexual crimes, tending to relegate female offenders to victim, mad or bad. As Dadwal argues, this reflects a tendency to regard females as lacking in agency—their actions are a consequence of factors outside of their control. In 1995, Ann Lloyd argued that violent female offenders are doubly deviant and doubly damned because they offend not only against criminal law but also against gendered norms (Lloyd, 1995). In her analysis of Ghislaine Maxwell, Dadwal provides an innovative twist on Lloyd’s argument, adding a third deviation in response to the #MeToo movement—that in sexually offending against young women and procuring them for Epstein, Maxwell betrayed ‘the sisterhood’. Dadwal draws on Claudia Card’s concept of the ‘moral grey zone’ (2002) to reject the simplistic victim-perpetrator dichotomy. She recognises that Maxwell was both a victim of sexual violence herself as well as a perpetrator who exercised agency as an accomplice and abuser. She thus argues for a more nuanced account of criminal culpability for sexual harm that rejects passive constructions of feminine victimhood.

In her article, Emma Genovese (2024) explores the prosaic, routine ways in which the criminal legal system harms trans people through its language choices. These harms, Genovese argues, are exacerbated for trans people with intersecting vulnerabilities (Crenshaw, 1991). Genovese focuses on how the widespread use of court forms that limit descriptions of sex/gender and prevent self-identification in the court system perpetuate harms. This imposition of incorrect identification on trans people is often unnecessary and extraneous to questions of culpability and victimisation. Genovese also considers the language of court judgments, in which the use of deadnames is like fingernails scraping down a chalkboard, pointing to sites of oppression and violence (Sinclair-Palm & Chokly, 2023). It is an act of discourtesy and an assertion of power to impose a ‘legal’ name on a person against their self-identification, belying the administrative difficulties that individuals may have in changing their name and gender legally, and reaffirming their legal and social marginalisation. Genovese notes that the failure to respect the validity of self-identity of trans people by court staff (including judges) is at once an exercise of power and an expression of disrespect; it fails to understand gender dysphoria and the impacts of (legal and legally enshrined) discrimination and marginalisation. Whilst recognising the value of abolitionist arguments, Genovese accepts that revolution is unlikely to occur in the near future. She proposes practical ways to disrupt the features that she identifies as causing harm to trans people. These include changing legal forms to allow self-identification and educating court staff about the issues faced by trans people and the use of appropriate terminology.

The final two articles consider the ways in which inequalities are reflected in the construction of what is and is not criminal. As noted above, one ideal of the rule of law is the protection of the individual against the arbitrary power of the state. Much of criminal law, criminal legal theory and jurisprudence revolves around the relationship between the state and individuals. However, this conceptualisation neglects a third player that must also be recognised—the corporation (Crofts & van Rijswijk, 2021). Power, in this view, does not just reside in the state, but also extends to businesses or organisations supported by the state and its laws. This is consistent with a reading of the law as acting to protect the powerful, not directly, but by guaranteeing more generally and more contingently, the frameworks of power relations within which the powerful thrive. That is, the criminal legal system is not primarily concerned with deterring and punishing serious social harms, but instead upholding a system of power. The focus of the criminal legal system upon individual offenders has had the effect of minimising the protection of individuals from predatory corporations. So too has the public-private nexus that implicitly condones violence perpetrated by private officers in immigration detention centres on behalf of the state.

Thalia Anthony and Penny Crofts (2024) contribute to understandings of how the criminal law neutralises or minimises the culpability of corporations through their case study analysis of the coronial inquiry and sentencing judgment in relation to four deaths occurring at Dreamworld, a popular Australian theme park. The authors question the prosecutorial decision to pursue charges against the responsible corporation, Ardent Leisure Ltd, for strict liability offences rather than manslaughter. This choice, they argue, diverts attention from deliberate acts and proactive choices of the corporation to not improve the safety of the Thunder River Rapids Ride. They point to a recommendation in 2001 that Ardent improve the ride’s overly complex and unsafe emergency stop system, a recommendation the corporation ignored, as well as repeated failures to investigate previous breakdowns of the ride. Despite these deliberate choices over a lengthy period, the coroner’s report and sentencing judgment framed the homicides through the language of ‘tragedy’ and ‘accident’—euphemisms that convey a lack of agency and responsibility. The enactment of maximum punishments for corporate offending conveys the state’s attitude towards the seriousness of the offence. Compared to Ardent’s substantial revenue, the $A3.6 million penalty that Ardent was ultimately ordered to pay for the deaths on the ride, which was close to the $A4.5 million maximum penalty, is another way in which the law fell short of providing a meaningful deterrent to corporate homicide. The Dreamworld case, Anthony and Crofts argue, exemplifies ‘business as usual’—corporate choices remain guided by the overriding motive of profit maximisation, while the criminal law fails to interrupt the profit motive.

Louise Boon-Kuo’s (2024) timely article identifies numerous techniques of power employed by the state and the corporation to mask harms perpetrated in Australian immigration detention and place these harms beyond the reach of the criminal law. Immigration detention has been managed by corporations for the Australian government for more than 25 years. Boon-Kuo shows how the administrative technique of risk assessment enables Serco Australia Pty Ltd, the company currently contracted to provide immigration detention services in Australia, to transform its immigration centres into liminal spaces where harms perpetrated against detainees fail to be prosecuted. Flawed risk ratings, Boon-Kuo argues, serve to construct the application of force by Serco’s officers to detainees as ‘necessary’ and ‘reasonable’ and thereby non-criminal. For instance, the Security Risk Assessment Tool used by Serco allocates the category ‘high risk’ to behaviour it deems signals aggression, which may include innocuous activities such as bad language. This allocation, in turn, functions to legitimise officers’ use of force in response to perceived threats to their authority. Boon-Kuo’s article sheds light on how the design and operation of risk assessment, combined with the malleability of the criminal law concept of ‘reasonable force’ (Sentas & McMahon, 2014), ineffective complaint processes, and the exercise of prosecutorial discretion, contribute to a culture of impunity in immigration detention.

In her review of the book Hashtag Jurisprudence: Terror and Legality on Twitter (Sharp, 2022), Penny Crofts (2024) considers Cassandra Sharp’s nuanced analysis of how legality is constructed in the public imagination on the social media platform Twitter. Drawing on Lerner (1980), Hashtag Jurisprudence is interested in how people express on social media the belief that the world is just, and communicate demands for the law to deliver justice. The law is imagined as a source of authority that can keep those it governs safe and secure, even while it cannot deliver on this promise. Although Twitter has since been refashioned—some might even say debased (Milmo, 2023)—into the platform X, Crofts argues that Sharp’s book remains of interest to legal scholars, those concerned with the methodology of social media narrative analysis and those interested in community expectations and aspirations for law.

The pieces in this issue also suggest ways in which arbitrary exercises and abuses of power can be remedied. This in part necessitates discursive transformations that reject common prejudices informing concepts such as offensiveness, the archetype of a female sex offender or what it means to be a trans person in the criminal justice system. It is also acknowledged that upending dominant social and legal orders requires broader conceptual and legislative change, whether this be through transforming how sex/gender is classified in the criminal legal system, or limiting the scope of offensive language laws so that they cannot punish mere four-letter threats to authority. In other areas, such as where corporate harms are inadequately punished or fail to be prosecuted, systemic change is called for. This includes a reworking of how the criminal justice system grapples with corporate violence. Fundamentally, the business operations of corporate perpetrators of criminal harms must be threatened by appropriate punishments. Further to this, the mutual constitution by the state and corporate entities of the criminal law must be interrupted so that violence inflicted by private staff does not evade punishment.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by University of Technology Sydney Law Research Grant Scheme.