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We must punish violence. Or so it seems until we discover that we are not always sure what counts as violence, and the criminal law doesn’t always punish what seems to be violence, and in fact, the greatest source of violence might be the criminal law itself.” Alice Ristroph, Brooklyn Law School, Criminal Law in the Shadow of Violence

Protecting people from violence is often seen as the main reason to have a criminal justice system. Fear of crime is often fear of violence, even though only about 5% of criminal cases involve violence. Much of the material for teaching criminal law in law schools is also about cases involving violence, especially murder. And media coverage of crime is overwhelmingly about crimes such as murder and terrorism, even though these are only a tiny proportion of all crimes. All of this gives everyone a distorted impression of the nature of crime and can drive the wrong policies.

No agreement on what counts as violence

In its simplest form, criminal violence is about injury or harm to the physical body. However any analysis of law shows that violent crime has been defined in many different ways, with quite varying consequences.

For one thing, not all harm to the physical body is defined as criminal. Until quite recently, and still not everywhere, violence against a child or a wife was not a crime. Violence against prisoners in jails is endemic but often ignored. Even the definition of murder remains deeply contested, as shown by the acceptance of killing someone if it is for self-defense – which itself can be defined in many different ways – or by police in the line of duty.

To take another example, in the past many legal definitions of rape required evidence of self-defense, even where there was clearly no consent. And some violence is excused by the other’s consent. Think about assisting someone to commit suicide, or violence as part of an activity such as martial arts or even a sport like hockey. The law has great difficulty defining when such actions are to be considered crimes. In her excellent paper, Alice Ristroph notes that “consent is a mess that we have not figured out” since a lot of human interaction falls between a clear yes and a clear no.

She writes, “As  the scope of the criminal law and the scale of imprisonment has expanded, so too has the concept of violence.”  In Canada today some crimes are considered violent even if there is no physical injury to any person.  An injury to a person’s dignity is sometimes defined in law as an act of violence. Acts without physical harm but which lie outside the current social mainstream may be considered violent, as in Canada with the recent law that non-contact sex crimes are to be considered violent. Actions which carry the potential for injury may also be defined as violent even without any action taking place, such as conspiracy charges.

Yet other crimes are defined as non-violent even when they may produce more harm to real people – for example the corrosive effects of fraud.

Our legal definitions of violence are thus full of contradictions, with some instances being defined as violent and others not, often based on what we “find repulsive, transgressive, or simply sufficiently annoying”. Ristroph cites examples from the US of crimes such as attempted burglary or failing to appear at a halfway house or stealing an unoccupied car being defined by courts as violent crimes for purposes of sentencing.

Violence as justification for law and order

In fact, declarations of violence for various crimes are largely about political purposes. “In the criminal law, violent crime seems to verify the need for, and justice of, the state’s own violence in policing and punishment.” Crime has long been used as a political issue because of its emotional resonance, even if the remedies are known to be ineffective. “Policies ostensibly designed to reduce ‘violent crime’ are too readily embraced by the fearful without sufficient critical scrutiny.

Many people assume that more police and punishment will improve safety, though the evidence does not support this claim. Ristroph writes, “There is considerable evidence that political leaders have explicitly sought to link drug use to violent crime in order to win support for the war on drugs” even though that policy has been ineffective and very costly.

Bad results

The result is a system that is expensive and ineffective. “The … criminal justice system is the pride of no one…. We are deeply dissatisfied with what we have, and unwilling or unable to change it in any way other than to create more of what we dislike.”

… invoking violence so often and so inconsistently… may have created a system that fails to prevent physical harm even as it relies on the specter of such harm… the perceived threat of violence legitimates the criminal justice system… [and] sustain policing and punishment practices that actually leave some bodies—especially those of racial minorities in impoverished urban areas—in greater physical danger.” The attention to certain kinds of violent crime may actually distract attention from other areas that are actually much greater risks. For example children are at far greater risk of being killed or injured in a car accident than they are from being assaulted by a stranger. Misunderstanding the nature of crime and violence leads to bad policy choices that can make things worse, not better.