Friday, October 26, 2007

Should there be a crime of "outraging public decency"?

Outraging public decency

Should there be a crime of "outraging public decency"? Let me begin with a recent case. Today, the BBC has reported that Anthony Anderson (left) has been found guilty of this crime. The details are chilling. Anderson, 27, came across Christine Lakinski, 50, who was dying in a Hartlepool street. Lakinski had suffered from several medical conditions and was trying to carry laminate flooring to her home. She was very clearly in need of immediate medical attention. Anderson saw Lakinski after he had been smoking cannabis and drinking with friends. First, he threw a bucket of water on Lakinski. He then urinated on her --- as a small crowd gathered around laughing, cheering, and recording the incident on a mobile phone --- before covering her in foam. Anderson was pronounced dead at the scene from pancreatic failure. Judge Peter Fox told Anderson: "You violated this woman in an incredible way, and the shocking nature of your acts over a prolonged period of time must mean that a prison sentence of greater length is appropriate in this case." Anderson has been sentenced to three years in prison.

I do not doubt that for many --- perhaps all --- readers this will look like a clear case of what constitutes "outraging public decency." Instead, I want to argue something else: (a) what is wrong about Anderson's actions is not that he offended public decency, but that he both harmed a dying woman and purposefully failed to assist and (b) there is a real epistemological worry about our ability to know "public" "decency" as well.

What should be the object of criminalization?

It seems intuitive to think that what Anderson was not merely wrong, but wrong in a way that should involve the administration of justice. It is clear that what took place was of a criminal nature. But why?

Before moving to worries about how we can know when public decency is offended, let us presume we can know when public decency is offended (or "outraged"). Let us further presuppose that the Anderson case is a clear instance of outraged public decency. Is this why the action should be criminalized?

I am unable to see why Anderson's wrong was criminal because it was a violation of public decency. I completely agree that what Anderson did was criminal, but on different grounds. At little effort or cost to himself, Anderson could have helped Lakinski off the street. He failed to do this. In addition, Anderson could easily have alerted emergency services to aid Lakinski. I take it that we have at least a moral duty of care to our fellow citizens to at least alert emergency services. Am I saying that Anderson shares responsibility for Lakinski's death? I would not have the relevant information to make such a judgement. Instead, what I am saying is that Anderson is at least failing in a general duty of care. This may not be criminal --- in terms of imprisonment --- but may be an object of concern for the justice system.

This wrongful act was coupled with others, including urinating on Lakinski and then covering her with foam. These other wrongful acts are wrongful --- and criminal --- because they were performed with a view to harming Lakinski's dignity. At a minimum, the performance of acts whose purpose is to unjustifiably harm others form a proper object for criminalization.

We can then offer grounds for criminalizing Anderson's behaviour without making any appeal to standards of conventional morality.

Where to find "public" "decency"?

The question then becomes why we would want to offer any such appeal. One reason is that law and morality are not the same. For example, not all immoral acts --- telling a white lie or adultery --- are criminal acts. A second reason is that the moral norm of "public decency" seems too difficult to be of much use. A community is not monolithic: it is a place of difference, even in non-multicultural societies. We should not demand of any society that it have a given "morality" that governs all as no such monolithic view of morality can be found. It is desirable to avoid criminalizing immoral behaviour because we lack a safe yardstick by which to adjudicate the "moral" from the "immoral." Moreover, it seems clear that those acts that might offend public decency can be dealt with in better ways on alternative grounds. I've given just one example here.

For these reasons, I share in the view that Anderson's actions were criminal. However, I do not believe they are criminal (and punishable) because some picture of morality was offended as such, but rather because Anderson clearly acted to harm his victim. The prevention of harm is a better guide to criminalization than honouring conventional morality. (Whatever that is.)

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