The Construction of Criminality: False Accusations, Constructed Victims, and Necessary Scapegoats

Dianne L. Martin, York University

The issue of what is a crime and who is a criminal is a part of the "common sense" of a society, accepted, understood without justification, resistant to critical examination. Both are social constructs and as such are mutable and variable. British criminologist Doreen McBarnet recognized many years ago that a criminal conviction is a social construct, just as others have recognized that targeting particular communities for intense policing distorts both the reality and the perception of crime rates and risk. The phenomenon of the wrongful conviction has the potential to test that "common sense" in important ways as a growing body of literature - both legal and sociological - has begun to identify causes and remedies for these errors within the institutions of criminal justice per se. This paper relies on that literature (and the broader literature) to inform a case study approach to a related phenomenon that is less studied, the wrongful accusation that leads to an acquittal. The Innocence Project at Osgoode Hall Law School has become involved in a number of these cases and the difficult issue of what remedies might be available for the "acquitted innocent". The cases provide the material to broaden the inquiry into the construction of criminality by examining what role, if any, assumptions about victimhood and community expectations play when prosecutions are brought against innocent persons. Preliminary conclusions reinforce the thesis that criminal prosecutions are not about community safety and the reliable detection of criminals, but rather serve as an almost Goffman-like dramaturgy of constructed roles for accuser/victim and innocent scapegoat alike. This proposition is supported by the continued stigmatisation of those who are acquitted (or have charges dropped) in cases of sexual immorality, or heinous murder for example. It is similarly supported by cases where police fail to investigate, such as occurs when prostitutes or other marginalised people are victimised.

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Updated 05/20/2006