Is criminalization a good prevention tactic?

For many things that people may think are wrong, or should be eliminated or prevented, the first (or often main) tactic for dealing with them is criminalization. This applies to things like sex work, abortion, drugs, immigration, domestic violence (and many more). Criminalization means that you make the said thing illegal, criminalize the behavior and attach penalties to engaging in it, often which can include time in prison.

A few of these issues, in particular sex work and abortion, are often hotly debated in feminist circles. There are people within our movement in various positions on the issue, but I’ve realized that often a more important question than our opinion about the actual act is the tactics proposed to deal with it.

The first time this became apparent to me was listening to Andrea Smith speak on a panel I was on at a Reproductive Justice conference in Oklahoma. She made the connection when talking about the anti-abortion movement in the US currently, which she argued is actually more of a pro-criminalization movement. (Smith’s work is incredible, by the way, you should definitely check it out).

While the debate about abortion rages on, it is clear that the tactics used by the anti-abortion movement in the US currently are focused on criminalizing the practice as a way to prevent it. They want to pass laws that limit access, ban procedures and put up road blocks to obtaining the procedure via legal channels. One question this brings up: Is criminalization an effective prevention tool? Does criminalizing something reduce its incidence?

There is a lot of evidence to say that criminalizing something doesn’t actually eliminate it–and usually results in making the thing itself more dangerous. Think about abortion before Roe, or abortion in any of the countries around the world where it is illegal. Abortions still happen, they’re just more dangerous because of the black-market means women use to access them. Same thing could be said for sex work, drugs or immigration.

One of the fundamental tenants of criminalization is that it acts as a deterrent to the practice or crime. If people know that a given act is illegal, they are less likely to practice it for fear they will go to jail. This has also been widely debated, and I think there are strong arguments to say that criminalization is not actually a deterrent. (This is a study by Amnesty International about the effectiveness of the death penalty as a deterrent to homicide).

We live in a penal society, which means that the criminal legal system underpins much of what we do, and is often the first place we go when trying to regulate behavior. But there are a whole range of tactics that could be the focus of campaigns to eradicate or reduce certain behaviors that don’t rely on criminalization at all, and that might even be more effective forms of prevention.

With abortion, it’s easy for us to see what that might include. Maybe a focus on preventing unwanted pregnancies? I don’t think abortion being illegal, or the threat of going to jail for trying to get an abortion, is a particularly good pregnancy prevention tactic. Actually I think it’s a pretty horrible one. Free and accessible birth control would probably be the best place to start, along with providing support to women who want to parent–access to child care, jobs, education and parenting support.

What happens in many of these instances is that the individual who engages in a practice, whether it be seeking an illegal abortion, using drugs or engaging in sex work, bares the burden of the punishment for that behavior. In countries where abortion is illegal, women who come to hospitals with signs of an incomplete or unsafe abortion are investigated and charged. In the US, sex workers are most often faced with criminal punishments, rather than the people who purchase sex work themselves. The result is not that the practice itself goes away, or is even necessarily reduced.

This, to me, is a point of common ground for these debates. Even if you and I don’t agree on the issue of whether sex work is okay, we might agree that the tactics of criminalization actually harm women and sex workers more than they help eradicate or reduce the practice itself. This may allow people who don’t agree on an issue to work together in terms of how to deal with the fact that the practice itself exists.

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5 Comments

  1. Posted July 11, 2011 at 9:29 pm | Permalink

    I wish people would stop making the blanket statement that criminalization isn’t a deterrent. It’s not really a debatable point.

    Criminalization *is* a deterrent. Countless activists have successfully criminalized once-acceptable behavior (slavery, rape, discrimination, fraud) in the hopes of achieving a reduction in their occurrence–and, by and large, succeeded in achieving such a reduction.

    These decisions to alter the law go hand in hand with other, cultural movements. One cannot achieve a result without the other, but both are worth fighting for.

    So the question is: is the reduction that inevitably follows criminalization worth all the pain such laws impose? That is a more complicated question, but more worth answering.

    • Posted July 12, 2011 at 3:34 pm | Permalink

      I STRONGLY DISAGREE WITH THIS.

      All of the research and past examples clearly show that criminilization ALONE – does NOT act as a deterrant. A perfect example was the prohibition in the 1930s where alcohol use actually increased. The same has been observed for other things such as drugs.

      The reason things like slavery and discrimination went down wasn’t because of the law – it was because the views of society changed. And besides, it’s not like none of those things happened – or don’t continue to happen – after the law changed.

      What gets results is changing people’s attitudes – not laws. Criminalizing something is absolutely useless otherwise – it won’t deter anyone and as I’ve stated / has been shown, in many cases can actually increase usage.

  2. Posted July 11, 2011 at 10:48 pm | Permalink

    Regarding criminalization, a distinction needs to be made between violent and non-violent crimes, and victim-harming and victimless crimes. Violent crimes, I think, probably deserve some kind of punishment, as a means of justice. (I know the concept of “justice” is complex and multifaceted, as the community debated recently, but I still don’t know if I would be comfortable with violent crimes like rape and murder being legal. I think these are things humane people in a peaceful society do not do.) I would say many non-violent but victim-harming crimes, like white-collar crimes, should also carry penalties. But the things which are the focus of relentless Religious Right criminalization campaigns, like abortion and sex work (“crimes against the patriarchy”), are not crimes at all, just social behaviors that are traditionally immoral and unsavory in patriarchal society and in the Christian church. Like adultery, or divorce (once nearly legally impossible for a woman to obtain).

    We’ve already seen the historical failure of the move to criminalize alcohol in the U.S. Coincidentally, conservatives never mention this fiasco, or the hypocrisy of legalizing a drug (alcohol) that’s more dangerous than some other types of illegal drugs. Or the hypocrisy of legalized pharmaceuticals that no one knows the long-term side effects of, but that I guarantee are often more dangerous than illegal drugs.

    I think we should also be careful of falling into the “necessary evil” characterization of abortion when we meet anti-choicers within their criminalization framework. Abortion is an experience most women would like to avoid, and we need things like universal access to birth control in order to prevent women from having to experience it (if nothing else, we would all agree abortion is more painful and costly than simply preventing pregnancy in the first place), but women will still always need access to abortions. And these women will never be criminals, ever. When we offer anti-choicers the Hillary Clinton olive branch that we believe abortion should be “rare,” we leave open a narrative that allows for the continued judgment and demonizing of women’s sexual behavior, especially those who fail to use birth control, do not use it properly, or who have multiple abortions. These things will always happen, and women should not be judged or demonized for them. Abortion is a basic right and reproductive-health necessity. It is not imperative on activists to make it “rare” in order to please anti-choicers, but we can (and perhaps should) hope that measures like increased birth-control access will make it rare of its own accord, and I think we can assume they will.

  3. Posted July 12, 2011 at 3:22 am | Permalink

    You make a great point about criminalization in the “pro-life” movement. Their reality of their strategy to achieve their goal stated goal will be completely ineffective. Worse, it will actually end more lives, as there will still be abortions, and more people getting abortions will die. “Pro-life” indeed……

    I think, with abortion, and sex work, the same standard should apply. If you don’t agree, don’t personally get an abortion, or don’t personally become a sex worker. Anyone who wants to be a sex worker should be able to. What we should strive for is so that no people are forced into sex work for survival, and that sex workers are able to work in a safe way. Legalizing and some sort of regulatory oversight is most likely the way to achieve this goal in my opinion, and is what we should be doing.

    • Posted July 12, 2011 at 9:04 am | Permalink

      “You make a great point about criminalization in the “pro-life” movement. Their reality of their strategy to achieve their goal stated goal will be completely ineffective.”

      This isn’t necessarily true. Their stated goals are to reduce the number of abortions, as well as the social acceptability of obtaining an abortion. In many ways they are already succeeding. Limiting access. Dissuading doctors from even getting the training to provide abortions. Shifting culture. It speaks volumes that the millennial generation has shifting drastically in regard to gay marriage, but has stood pat when it comes to abortion.

      You also are interpreting success and failure through your frame of reference. However, if you truly believe that abortion is murder then a few women dying in illegal abortions every year is chump change compared to reducing rates of incidence. We don’t, so it’s seemingly hypocritical to us, but from an alternative perspective (that I wholly disagree with) these deaths are negligible, and constitute “acceptable losses”.

      Criminalization is simply the extension of existing regulations to restrict abortion to much greater levels. Since these existing regulations have, in fact, proven effective at limiting abortions at the expense of choice and legal options, it stands to reason that criminalization would be effective, too. Imperfect, sure, but effective, if your sole goal is to reduce the number of abortions that occur.

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