No abstract

Abstract'Criminalisation' has attracted considerable scholarly attention in recent years, much of it concerned with identifying the normative limits of criminal law-making. Starting from the position that effective theorisation of the legitimate uses of criminalisation as a public policy tool requires a robust empirical foundation, this article introduces a novel conceptual and methodological approach, focused on recognising a variety of modalities of criminalisation. The first part of this article introduces and explains the modalities approach we have developed. The second part seeks to demonstrate the utility of a modalities approach by presenting and discussing the findings of a pilot study of more than 100 criminal law statutes enacted in three Australian jurisdictions (New South Wales, Queensland and Victoria) between 2012 and 2016. We conclude that a modalities approach can support nuanced examination of the multiple ways in which adjustments to the parameters of criminalisation are effected. We draw attention to the complexity of the phenomenon of criminalisation, and highlight the need for further quantitative and qualitative work that includes longer-term historical analysis. KeywordsCriminalisation; modalities; law reform; statutes; criminal law theory. Please cite this article as:

No abstract

No abstract

Gender, 'Madness', and Crime: the Doctrine of Infanticide This chapter addresses the gender dimension of 'madness' and crime via a study of the infanticide doctrine. The subject of gender, 'madness' and crime has been of most interest to feminist scholars. Like feminist studies of law more generally, the subject of gender, 'madness', and crime has been approached with a critical eye on the distribution of power. 1 Feminist scholars have pointed out the ways in which women offenders are depicted as doubly-deviant, transgressing gender norms as well as legal norms. 2 As my analysis of infanticide shows, gender norms are crucial for understanding this part of the mental incapacity terrain. As I discuss in Chapter 2, infanticide is a mental incapacity doctrine on my account of the mental incapacity terrain in criminal law. Infanticide is distinctive in that it is both a partial defence to a charge of murder or manslaughter, as well as a distinct homicide offence, and it applies exclusively to women who kill a biological child where the child is under the age of 12 months. 3 In its restriction to women, infanticide is thus a rare instance of the overt gendering of the legal subject-gender differences, which are more often implicit in legal doctrines and practices, are made explicit on the face of the law of infanticide. 4 In addition to providing a specific focus for consideration of the wider and more nebulous flow of currents of meaning around gender, 'madness', and crime, my study of infanticide exposes the gendered character of abnormality as it is constructed within criminal law. The two main arguments advanced in this chapter concern the broad continuities in the meanings given to women's 'madness' at the point of intersection with 1 In this respect, feminist legal theory and critical legal studies have shared concerns. As Nicola Lacey argues, there are strong continuities between strains of feminist legal theory and critical legal studies, in that both share a strategy of what she calls 'recontextualisation as critique': see N Lacey