Thomas Crofts

Social and cultural meanings of legal responses to homicide among men : masculine honour, sexual advances and accidents

This paper discusses Australian controversies over defences and excuses to homicide that serve partly to normalise violence in fatal conflicts between men. The ‘homosexual advance defence’ (HAD), describes a specific use of the provocation plea to seek a reduction of murder charges to a finding of manslaughter in cases of alleged male on male sexual advance. Successful uses of HAD to support claims of provocation have reflected legal acceptance of the alleged affront to masculine honour that such an advance can comprise. Likewise, the excuse of ‘accident’ has become a matter of growing debate when used to counter homicide charges arising from petty disputes or unprovoked assaults between men. The ineffective outcome of debate and the extent of this violence mirrors official resignation about this phenomenon and casts doubt on the progression of ‘civilising’ trends against social brutality. Anti-violence activists and reformers have mobilised against the use of HAD and the excuse of accident with mixed success. Reform of provocation law to abolish HAD is still incomplete, and the accident excuse continues to impact on cases involving alcohol-related violence among men. Anti-homosexual attacks and other fatal male on male conflicts have been viewed as unrelated forms of crime, yet there is a symmetry between HAD-related and ‘accidental’ killings that arise in social scenarios where sudden rage in reply to insults to male honour is a common social expectation.

Media, legal and young people’s discourses around sexting:

The term sexting has come to be associated with media, political and public concern over young people’s involvement in the sending and/or receiving of nude or semi-nude images and/or videos of one another. Public discourses around sexting have framed the practice as problematic, reflecting long-held – and often very real – anxieties over young people and their sexuality. Of particular focus in relation to sexting have been the risks and harms associated with the practice and current or potential legal responses. Missing from much of this public discourse, however, have been the voices of young people themselves. In order to bring young people’s voices into the discourse, this article draws on research conducted with young people, as well as extensive legal and media analysis of sexting by young people. It contrasts these popular and legal discourses around sexting with the discourses of young people themselves, exploring the ways in which they understand and perceive sexting and how these perceptions converge with and diverge from dominant discourses. In this way, the article demonstrates the fundamental discord between such discourses, indicating the need to rethink legal responses to sexting between young people.

Review of Existing Research

In line with the critical approach of this book, it is useful to precede our own contribution to the field of research with a discussion and evaluation of the methods and approaches to researching sexting that have been used in research to date. This chapter starts with a critical analysis of the existing surveys into sexting practices by young people and then looks more closely at current qualitative research. A review at the time of writing identified ten such quantitative surveys.1 Most of these are aimed at identifying the prevalence of sexting among young people and only a small proportion drill further into the practices of, and the motives or reasons for, sexting (National Campaign to Prevent Teen and Unplanned Pregnancy 2008; Mitchell et al. 2012; Dake et al. 2013), or the emotional or practical consequences of sexting (Dake et al. 2013; Phippen 2009; National Campaign to Prevent Teen and Unplanned Pregnancy 2008; Strassberg et al. 2013; Mitchell et al. 2012; Talion et al. 2012).

Red Light on Sex Work in Western Australia

After several failed attempts, the former Labor government in Western Australia was finally able to enact legislation to introduce a licensing system for sex work. While not condoning sex work, Labor saw the need to regulate ‘prostitution in a manner that is conducive to public health, protects sex workers from exploitation and protects children from being involved in or exposed to prostitution.’ It felt that the best way to do this was through a minimalist decriminalised model, similar to that operating in New Zealand since 2003. This represents a simplified, less industry-specific model compared to other Australian jurisdictions, where licensing has been adopted. The Prostitution Amendment Act 2008 therefore represents a major step forward in creating a framework for addressing sex work in a non-moralistic way. The road to reform was by no means easy with the government facing strong opposition to the Bill from those concerned about the perceived immorality of prostitution, the exploitation of women and harm to the community.

Sexting and the Law

This chapter explores the laws that frame sexting with a particular focus on Australia and Europe. International concerns over the impact that new technologies have had on child pornography and child abuse have led to countries strengthening laws to protect children. The chapter analyses how such reforms have impacted on children who engage in sexting and whether children have been criminalised for sexting behaviours. It will be seen that there are differences in how countries approach sexting. This chapter concludes by assessing whether, and what form of, legal response to sexting is appropriate and necessary.

Reforming the age of criminal responsibility

This article discusses the age at which criminal responsibility should begin and whether there is still a need for the rebuttable presumption of doli incapax. It clarifies the various meanings given to the concept of the age of criminal responsibility and considers its importance. Some common law countries have moved away from the traditional position of a minimum age level of 7 years and a rebuttable presumption of doli incapax from 7 years until 14 years. In doing so, there has been a tendency to raise the minimum age of criminal responsibility to 12 years and abolish the rebuttable presumption of doli incapax. After analysising these changes, the article argues that there is still a place for this presumption unless and until the minimum age of criminal responsibility is raised to the level preferred by the United Nations Committee on the Right of the Child.

Rainbow Crossings and Conspicuous Restraint: LGBTIQ Community Protest, Assembly, and Police Discretion

This chapter examines the DIY chalk rainbow crossing movement which developed in response to the removal of the rainbow crossing on Oxford Street, Sydney. In particular, it explores why this activity did not attract police attention despite the availability of a range of criminal, public order and road transport offences, and policing powers that could have been used to prosecute and/or move chalk protesters out of regulated spaces, such as roads and intersections, and despite the fact that other similar forms of protest have attracted police attention. It finds that the removal of the crossing, the resultant community disquiet, the widespread take-up of the campaign call, and noted lack of police intervention must be read against the backdrop of two important issues. Firstly, the images on social media of DIY chalk rainbow crossings spreading worldwide evidenced that the crossings had moved from being a localised campaign about removing a signifier of the importance of Oxford Street to the LGBTIQ communities to a widely supported global campaign about equality, particularly the right to marry. As such, rainbow crossings did not pose the perceived harm or threat to the social order that other forms of protest employing public markings are considered to present.

An Introduction to Sexting and Young People

Young people integrate online and digital technologies into their everyday lives in increasingly complex ways. As McGrath (2009, p. 2) notes, ‘[y]oung people…see technologies (especially the internet) as a vital part of their social life and the building of their identity’. As mechanisms for socialising, education, relaxation, gaming, romance or communication between friends and peer groups, new technologies provide a key framework within which young people live their lives. Yet, the ways in which they incorporate romantic and sexual relationships and practices into this technology-dominated, virtual world has been relatively underexplored by researchers and, subsequently, it has become problematic for policymakers. Media and social commentators play an important role in drawing our attention to the intersections of digital technologies, sexuality and sexual practices of young people. However, such commentary has also seen these complex interconnections misunderstood and oversimplified. At the very core of contemporary debates around young people’s online sexual practices, new technologies, social media, and childhood sexuality has been the phenomenon dubbed ‘sexting’. While sexting has many meanings, which we critically explore in more detail below, it generally refers to the digital taking and distribution of images of a nude/semi-nude person through mobile phone or social networking sites.

Online Survey Data

While sexting between young people has become a significant cultural phenomenon, a topic of popular media discussion, and the target of concern from law and policymakers, when it comes to young people themselves our knowledge of their practices and perspectives in relation to sexting is still relatively limited. The little we do know of young peoples’ engagement with sexting comes from the handful of medium-scale quantitative surveys, and an even smaller number of qualitative studies discussed in the previous chapter.

Developing Responses to Sexting

While discourses around the legal response to sexting have tended to centre on the appropriateness of the application of child pornography offences, as discussed in Chapter 4, sexting is a complex behaviour that cannot be reduced to simplistic (legal, social, media) narratives. Taken in their entirety, the results of our research demonstrate that young people’s practices and motivations for sexting rarely fit the rationales for child pornography offences that so often lead debates on appropriate legal responses to sexting. Furthermore, prosecution under child pornography laws has the potential to cause more harm to young people than was caused by the original sexting behaviour. While our research shows that young people are generally aware of the potentially serious legal consequences of sexting, such legal consequences have not been enough to deter many young people from sexting. Although we cannot truly know all of the complex reasons why individuals choose to sext despite these legal risks, our findings suggest that some young people do not think that what they are doing - largely consensual sexting - is a form of behaviour that would or should be prosecuted. Beyond this, young people are more prone to take risks and act impulsively without necessarily thinking through potential future consequences. Moreover, the very risks involved (legal and reputational) may in fact incite or excite young people to engage in the practice.