To print this article, all you need to do is be registered or log in to Mondaq.com.
The most obvious problem with the newly proposed offense of grossly offensive public conduct is its inherent uncertainty. The impossibility of knowing in advance what type of conduct you could go to jail for means that this proposed crime violates the rule of law.
The subjectivity of what constitutes “grossly offensive” conduct will invariably mean that once charged, the case will (or should) be challenged on almost every occasion, exacerbating already overburdened courts.
Its inherent subjectivity will lead to discriminatory practices that favor privileged members of society such as police officers, and harm minorities and those already vulnerable before the law.
But there are also many other problems with this bill.
Courts already punish moral culpability
First of all, it’s unnecessary. The criminal justice system is already equipped to deal with the moral culpability of a person who commits a crime. Some crimes are more repulsive than others and a person’s conduct surrounding the crime and the degree to which their moral depravity was willful and deliberate is part of every sentence imposed for every crime.
Any offense is offensive…
Second, it’s redundant. A criminal charge is called an “offence” for a reason. Criminal offenses generally encompass conduct that is morally offensive. A person who assaults and humiliates his wife has engaged in conduct “that seriously violates community standards”. A person who breaks into a home and terrorizes sleeping residents has committed grossly offensive conduct. A person who rapes a corpse or masturbates in public near a school is grossly offensive conduct. A person who commits an offense against a police officer has, in Victoria, committed grossly offensive conduct. And all of those things are already specific offenses under the law that relate to specific behavior.
In fact, if something does not “seriously breach community standards of acceptable conduct”, it should not be a criminal offense resulting in jail time.
A catch-all layout with no useful function
A separate “grossly offensive conduct” offense is a catch-all provision that will be used in two ways.
Or it will be used as a padding for an indictment containing charges of domestic violence, offenses against the police or sexual offenses against children, for example.
This will create a risk of duplicity in any sentencing exercise: a court will have to assess the moral culpability of the offender for the primary charge (e.g. production of child exploitation material) and then impose a separate sentence on certain other aspects of the offence. which constitute the other charge.
It can be argued that the sentences should be concurrent. But it must be argued that a conviction based both on moral culpability for the main offense and on the objective gravity of the offense of “offensive conduct” amounts to a double penalty.
If the charge of grossly offensive conduct is not successful, arguments will or should be held to determine whether the court can consider post-offence conduct as an aggravating factor in sentencing or whether it it would be an error because that conduct would amount to a separate, uncharged offence.
The other way to use the offense is when a person engages in conduct that would not normally constitute a criminal offence. It would be something the media could sensationalize, such as behaving badly towards a police officer or a public office holder, or someone supported by a powerful victims’ rights lobby group. Or maybe a person walking on Parliament wearing a model gallows. Or fight over toilet paper in a supermarket in the throes of a public emergency.
What amounts to criminally offensive conduct is entirely subjective, despite the drafting claiming that an objective standard may exist. This is where the offense of grossly offensive conduct becomes fundamentally political and a person’s access to justice will be tainted by media and public opinion. Whether a person’s behavior, or even personality, is legal or not will depend on the media, the informant, the prosecutor or the magistrate of the day. It will invariably be used as an additional sentence by police on defendants they challenge, who give an interview without comment, who have a lengthy criminal record, or who are part of a racial or other minority.
The grossly offensive conduct offense will not be used against, for example, police officers who beat, trample or shoot mentally ill people without charge; or politicians who say hateful things about minorities and asylum seekers; or corporations that hoard the supply of essential goods in order to drive up consumer prices; or people who file false complaints with the police to satisfy a personal vendetta and force innocent people to stand trial.
There must be another way to govern than to imprison the community
The government needs to start accepting that there are things that we may not like, that may not be what we want to see in people, but that should not be part of the law penal. Our criminal law has already been stretched and twisted beyond recognition due to the government’s commitment to forging a police state, but this offense represents a new trajectory.
We have seen an increase in regulatory offenses where more and more people are going to jail for breaching a personalized legal regime in the form of bail orders, intervention orders, SORA orders, supervision orders, community correction orders – for behaviors like going out at night, moving, replying to a text message, failing to report a Facebook page created 10 years ago and never used.
We have seen an increase in preventive detention and the criminalization of risk, leading to prison sentences for people whose offense caused no real harm but who could have caused it, and post-sentence orders for people who may pose a risk in the future.
And now we see something new, in the run up to an election, to win people’s votes by promising incarceration.
Not too long ago we saw the baffling and irrelevant criminalization of the swastika in certain circumstances (with an exclusion for the police and for swastika tattoos). We have also seen dithering and delays in repealing the other moral offense of public drunkenness. And now we see the criminalization of inappropriate white behavior, proposed by the husband of a police officer who is himself a former member of the police.
Applying notions of appropriate or inappropriate behavior with the threat of criminal sanctions is inherently offensive. It offends liberalism. It undermines our social unity. It goes against a conception of humanity that recognizes that we are all imperfect and that there are times when each of us is ugly, and no one stands above the others in this regard.
People are all different. Some people struggle; some people don’t express themselves well; some people are unpleasant; people behave strangely in times of extreme stress. Criminalizing that won’t stop it. This will only make every person in Victoria constantly worried about when they might be seen by someone else to cross the line.