In this essay I will look at behaviours and acts that are considered immoral by the general population and whether they are liable to be punished by the law. It will focus on moral principles and its affects and views on society. I will focus on key immoral behaviours and actions that are legalised or criminalised differently to the UK and see whether certain legislations have help to shape the view on morality of the public or whether it is the public’s attitudes that have changed the laws. For example it is immoral as well as unkind to walk by a person in need, on the continent this is known as the Bystander law whereby if there is a person in danger where you could be of assistance and do not help and that individual dies then you could be liable for prosecution. This law does not exist in the UK; which suggests that although an obvious immoral action or behaviour, is still legal. Before addressing this statement, a primary question must be asked: “What is morality?”
Morality is defined by Strawson (1961) as “rules or principles governing human behaviour which apply universally within a community or class”; it is a code of behaviour that is innate and classified by a higher being. Morality is how groups of individuals interact with each other to create a society in which everyone can live freely and amicably. Breaking these rules set by this ‘higher figure’ is doing wrong and thus being immoral so creating and environment with a lack of harmony or unity. There is also a definition of morality based on the norms and values set by a religion or individual that must be adhered to. Catholicism for example believes that God is the Supreme Being that has set down the rules and regulations of life within the Ten Commandments. Followers of this religion believe that breaking any of these Ten Commandments would deem you a sinner and be sent to purgatory at death. In the light of religious morality, should an individual breaking these moral codes be punishable under criminal law? However, it is evident that many moral codes either from an innate or religious background are enshrined within the Law, be it Civil or Criminal.
The Harm Principle states that “an activity cannot be criminalised simply because it is regarded as immoral” Herring (2008: 28) Many however, have argued with this prospect in relation to the interests of society. Fox hunting is a widely acclaimed debate; with activists stating that it is immoral to purposely kill an animal for recreation and the hunters stating it is nature’s hierarchy. However aside from these two main view points, is another in terms of Social immorality, whereby allowing this crude sport diminishes society, creating a less civilised one which condones barbarianism. Lord Devlin has argued that the state can use the criminal law to protect a society from losing its sense of unity and solidarity; thus an immoral act should be punishable if it is in the best interests of society and the people in it.
Throughout the last century, laws have changed and acts have been passed to keep up with the changing moral compass of society and to keep in conjunction with human rights. The Suicide Act of 1961 is an important legislation that has help to shape the Criminal Law we have today. Before this Act was passed, a person who committed suicide would not receive the life policy necessary. After the abolition of suicide as a crime, any life insurance payment would be made as long as the policy had been taken out 1 year prior to the death. This act came about due to the changing attitudes of society on Suicide. Homosexuality is another moral offence that was once criminalised under UK law but now isn’t. The Homosexuality Act of 1967 stated that homosexuality was legal as long as the participating individuals were over the age of 21, had provided full consent and was in the privacy of their own homes. This change came about, again due to new societal beliefs, and evidence provided by the Wolfenden Report. The report found that homosexuality was not a disease and did comply with full and able mental health. Both homosexuality and suicide are still considered widely immoral by religious sectors and individuals committing either of these acts should be punished by criminal law as well as on a spiritual basis by religious Super- beings.
In accordance to Lord Devlin and Societal morality, neither of these actions is creating chaos in society, so should not be criminalised. Religious morality has very specific regulations that are generally followed by those that practice that religion, an individual who is not of that religion or who is not religious in any shape or form should not be punished under their rules. An act that is harmless to society such as homosexuality should not be given an imprisonment sentence because it does not follow the regulations set by Allah or God. From when these deeds were illegal pre 1960 to now the 21st century, there has been greater knowledge and acceptance by society, and the individuals’ outlook is no longer confined to religious beliefs.
A highly ethical as well as moral topic that is not criminalised under any form of the law is Abortion. A mother may legally choose to abort her unborn child up to week 24 of the pregnancy as long as it has been signed off by two doctors. The Abortion Act of 1967 did not legalise abortion but merely create a defence for those wishing to have one. This act has been updated once through out the years, bringing the maximum limit down from 28 weeks to 24 weeks. Legally, a foetus inside the stomach is not yet deemed a child or a human being until he/she is born and thus can be protected under the Law. Under social morals, abortion is not immoral; it is the decision of a mother up to 6 months of pregnancy as to whether she wants to terminate. The guidelines state that abortion can be carried through regardless of the mothers or child’s health whether it is good or bad, and it has to be done in a qualified and suitable establishment. In terms of religious morality, the termination of life is murder. As soon as the egg turns into a foetus life has began and terminating it prematurely and unnaturally should be criminalised. There are statistics to show that at 23 weeks, 44 of 283 children survived and at 24 weeks 198 of 474 – of babies survived. Of the 201,173 abortions in England and Wales in 2006, 1,262 were at 22 weeks or more. A study at University College London Hospital found that only 33% of babies born between 22 and 25 weeks survived in 1980 whereas ten years later there is 71% of survival (Kirkup 2008). Two major questions that need to be asked is should abortion be under any form of the law e.g. civil law and if so, should it be criminalised. In my opinion, this immoral act should firstly be punishable under criminal law as well as civil law, whether an individual holds any sort of belief on this topic; it is immoral to murder an unborn child up to 6 months of pregnancy because they don’t want it. The law should be changed to firstly lower the maximum abortion limit to the 1st trimester, secondly to only allow abortion up to 6 months if either the mothers or child’s health is in serious danger, and thirdly any individual not complying with these regulations to be punished under a criminal law.
Moving on are actions that are considered immoral and wrong by the majority of any population that are punishable under civil law but not under criminal law in the UK. Adultery is an example of this, whereby it can be used for grounds of divorce but in Europe is a not ground for imprisonment or any other form of punishment. From a piece in the British Journal of Sociology, it shows that many British females have strong views on infidelity believing that it is immoral to cheat on her spouse. Even with these strong beliefs, the majority of the females with this view have had at least one ‘adulterous liaison’. In the US however, 94% of Americans disapprove of adultery. In the US, adultery is punishable under criminal law, an individual found guilty of infidelity can get up to two years of imprisonment. In many Muslim countries however, the price of infidelity is far greater, where women are stoned to death if caught cheating on their husbands. If adultery were criminalised the percentage of individuals committing the knowingly immoral act may decrease, thus providing a more harmonious and moral society. Adultery is a widely acclaimed immoral act that needs to be punished as not only does it breaks the sacred bonds between husband and wife but also dissipates the meaning of marriage in society.
Torture is deemed immoral and in fact is illegal. Anyone proved guilty in any country of the world will be subject to imprisonment of over 18 months. The focus of this immorality is the difference between Sado masochism and the torture performed by individuals or groups of individuals at Guantanamo Bay prison. There seems to be no consistency in how torture seems to be punished under the same law. Kelman (2005:8) states that “torture is considered illegal and immoral by the international community; that it is a crime under the U.N. Convention against Torture which has been adopted by the General Assembly in 1984”. Even though this law seems to be clear, any official in the Guantanamo Bay prison torturing a terrorist suspect is not punished under the law, whereby a group of individuals are imprisoned for being Sado-Masochists in the privacy of their own home; seen in Reg V Brown. An article in the New York Review, written by Anthony Lewis shows evidence from a draft report to the Secretary of Defence which states that Americans who “torture” captives can escape punishment if they can prove they did not have an intent to cause ‘sever physical or mental pain or suffering’ (Lewis 2004). Looking at this quotation in relation to the Reg V Brown case where the defendants ‘willingly participated in the commission of acts of violence against each other, including genital torture’, for sexual pleasure which stimulated the giving and receiving of pain. Here the so called ‘torture’ received was consensual, and all acts were performed private locations, yet were still convicted of Actual Bodily Harm contrary to Section 47 and Unlawful Wounding contrary to Section 20 of the Offences against the Person Act 1861. Both torture for sexual pleasure and torture as an interrogation technique are immoral yet are not treated similarly in terms of the law. Officers who treat suspects in such a vile way should be imprisoned for Actual Bodily Harm as there is intent to harm and Unlawful Wounding just as the males who were Sado masochists.
It is difficult to state whether all widely immoral issues should be punishable under the criminal law; however what we have found is that certain actions such as adultery and abortion are criminalised in other countries around the world apart from the UK and the view of the public regarding its moral status is different to those of the British. It is evident to state that actions that are solely immoral in the eyes of a religious person cannot be and should not be punishable as it does not protect the individuals’ human rights and individual decisions. From this account we have seen that even immoral as well as illegal acts for example torture are not punishable in the same degree according to who the participating figures are. Before asking the question: should all immoral acts be punishable, the punishment