On crime, society and responsibility in the work of Nicola Lacey. Iyiola Solanke (Ed.) Oxford: Oxford University Press. 2021. 268pp. £80.00 (hbk) ISBN: 9780198852681

Abstract

On crime, society and responsibility in the work of Nicola Lacey (hereinafter On crime, society and responsibility) is a pioneering book which contributes significantly to legal scholarship. In being the first common law Festschrift for a woman, Iyiola Solanke has transformed and modernised the Festschrift tradition. Bringing together leading scholars whose fields span legal and criminal theory, psychology and philosophy, Solanke's anthology of essays pays respect to the eminent work of Nicola Lacey and speaks to the reach of Lacey's scholarship across academic disciplines.

The book is structured in three parts – each drawing on different aspects of Lacey's work on criminal responsibility. The first chapter considers the overarching composition of criminal responsibility, Chapter 2 focuses on gender and ethics as they relate to criminal responsibility, and the final chapter consists of a political and historical contextualisation of criminal responsibility.

I approach the work of Nicola Lacey from a feminist, sociologist perspective. Because of this, and to avoid obfuscating areas of Lacey's work within which my expertise is not grounded, this review considers Parts Two and Three of the collection, namely the essays written by Ngaire Naffine, Hanna Pickard and Emily Jackson. These essays are, in my view, the most captivating in the collection and best reflect the sociological and feminist lens of Lacey's work. For those interested in a comprehensive review of the collection, I recommend reviewing Chaudhary's recent paper (Chaudhary, 2021).

Beginning with Section Two of On crime, society and responsibility, Ngaire Naffine's essay helps the reader to better understand certain actors within criminal law. Naffine sets out a persuasive critique of the theories of criminal law which view the criminal actor as a free-standing and autonomous individual, devoid of social characteristics or context. Naffine's essay hinges on how the English law of rape may present a challenge to this individualist view. Naffine notes that in the English law of rape ‘men are designated the exclusive class of persons at whom the law is directed’ (p.68). Therefore, the English law of rape does away with the idea of the abstracted subject, instead invoking a specific population – men. The main body of the essay involves an analysis of legal philosopher John Gardner's work on the law of rape. Naffine embarks on this analysis in an attempt to probe what a theorist who takes the abstracted position does when faced with a population-specific law. Analysing two of Gardner's texts, The opposite of rape (Gardner, 2018) and The wrongness of rape (Gardner & Shute, 2000, ch. 10), Naffine exposes the issues in taking an individualist approach to the law. Naffine rightly insists that when one takes such an approach, the ways in which the law of rape is sexed, and historically and culturally located, are entirely lost.

Without diminishing the power of Naffine's argument, the focus on Gardner's work is to the detriment of using Lacey's work directly. After all, Lacey has long argued that the offence of rape cannot be extracted from its broader cultural, social and historical setting; ‘of men and their relations with women’ as Naffine writes (p.64). As Chaudhary has pointed out, Naffine considers the work of feminist legal scholars generally rather than specifically in this essay. Yet, in Unspeakable subjects, Lacey (1998) directly challenges the individualist perspective of criminal legal theory which Naffine takes. Lacey considers how such an approach to the law of rape fails to take notice of what it is that we consider societally valuable (e.g., connection and intimacy) and dangerous (e.g., violation of trust and humiliation) about sexuality, in favour of a narrow, liberal conception of individualism. It therefore seems something of a missed opportunity, particularly in the first common law Festschrift for a woman, not to give thought to Lacey's writing in Unspeakable subjects (which, as it happens, Gardner and co-author, Stephen Shute acknowledge as having influenced their thinking in The wrongness of rape).

Additionally, Naffine focuses solely on sex and recognises only men and women in her discussion of English rape law. My first reaction to this, as Chaudhary has noted too, was to question the concession of the binaries of sex and the non-conforming identities that exist outside of these sexed male and female dichotomies. Though Naffine's arguments are strong, little respect is paid to the nuances of sex and gender or how these ideas of sexed men and women have long been challenged in feminist research and continue to be in contemporary discussions. Perhaps if Naffine were to take a more nuanced look at sex and gender from these perspectives, it would allow for a consideration of its complexities.

The penultimate essay in Part Two of On crime, society and responsibility, by Hanna Pickard, shifts to a psychological focus of responsibility and blame. Extending beyond Lacey's social, political and economic contextualisation of criminal responsibility, Pickard, instead, examines the psychological function of criminal responsibility inside the courtroom. Pickard uses Diana Scully's (1990) study of the attitudes of convicted rapists, as well as wider empirical studies of the general public's attitudes towards rape victims, to uncover some of the descriptive and prescriptive norms of rape culture. Pickard outlines what these descriptive and prescriptive norms look like for men (e.g., that men have a natural right to sex) and for women (e.g., that women are required to conform to certain standards of behaviour in order to avoid rape). The author persuasively argues that responsibility for rape is bound within explanations based in rape culture and myths, which tiredly consider women as bearers of responsibility for rape as opposed to men. Pickard goes on to uncover how these rape culture norms contribute to attitudes that exist in the courtroom. For instance, the ways in which certain types of evidence is allowed to be introduced by the defence, and how this evidence might emulate the gendered lines of rape culture. Evidence of this kind often uses rape myths to render the man's behaviour contextually understandable and puts the onus of responsibility and blame on the woman (e.g., the woman was dressed in a revealing way, or was intoxicated). The author notes that in introducing such evidence, the defendant is absolved of responsibility and any sense of justice for the victim is lost. Because of this, Pickard supports a notion of criminal responsibility without affective blame; an idea under which all people would be respected, treated equally, and perhaps most pertinently, where women's sexual integrity would be valued. In examining the intersection of criminal responsibility and psychology and using empirical research on rape culture to substantiate this, Pickard's essay not only makes for a welcome break from the knotty theoretical focus in the collection, but also makes for a salient contribution to the theme of criminal responsibility and blame in the work of Nicola Lacey.

The final chapters of On crime, society and responsibility focus on criminal responsibility in a political and historical context. Emily Jackson's essay explores the unequal construction of criminal law, asking broadly, who is it that is responsible for shaping criminal law? Jackson sheds light on the ways in which certain criminal laws are influenced by those most powerful in society and disproportionately enforced against the powerless at the margins. Jackson's analysis is concerned with the blanket ban on assisted suicide in the United Kingdom and directly takes up Lacey's suggestion that we need to ‘reinsert a concern with interest into criminal law scholarship’ (p.171). The lack of assisted suicide legislation in the United Kingdom is upheld under the guise of protecting the vulnerable. However, Jackson rightly insists that this argument obscures two important sets of interests: marginalising the interests of those not vulnerable; and also concealing the interests of the medical profession. Given their significant influence over the assembly of medical law and the moral challenges posed by helping patients to die, Jackson points out that opposition from the medical profession may, indeed, be the biggest obstacle to legalisation in the United Kingdom. Jackson goes on to dissect the construction of the vulnerability argument, illuminating its inaccuracies. Citing evidence collected from countries in which assisted dying is legal, Jackson shows that patients who have requested dying have more in common than just being vulnerable – these patients are often a socially and economically privileged class of individuals who want to live and die on their own terms. Jackson demonstrates, with significant credibility, how the blanket ban on assisted suicide in the United Kingdom can be considered a case study on the importance of professional interests in shaping the criminal law landscape. She encourages the reader to consider taking up the cause of reform, a call which is particularly timely given the Private Members’ Bill on assisted dying introduced in the House of Lords in May 2021. The Bill had its second reading in the House of Lords in October, and at the time of writing is at the committee stage. Despite the overwhelming public support against the blanket ban, the current government does not back the Bill, nor reform. As Jackson has persuasively argued, the current assisted dying legislation remains the law in the United Kingdom, sustaining a lack of control for those who are terminally ill.

The three essays considered in this review engage with Lacey's work on criminal responsibility in a compelling and sophisticated manner, using empirical studies and elucidating contemporary social problems. As stated at the outset, the purpose of this review is not to cast the other essays in the collection as inferior to these three. Rather, in my view, it is the case that the three essays considered here best speak to the feminist sociological underpinnings of Lacey's work.

In Crime, society and responsibility in the work of Nicola Lacey, Solanke has managed to simultaneously explicate the multifaceted themes in Lacey's work on criminal responsibility, convey Lacey's erudite scholarly intellect, and allow the collection to speak to Nicola Lacey's warm nature. Lacey's unwavering kindness, collegiality and generosity to those she works alongside is evident in the writing. The collection not only honours Nicola Lacey's esteemed academic impact, but also reads as a tribute to her personal influence on others.