Dr Arlie Loughnan, Professor of Criminal Law and Criminal Law Theory, University of Sydney
Criminal responsibility denotes both the basis on which individuals are called to account via the criminal law and the form or structure of the law. It is significant because it organises relations between self, others and the state as relations of responsibility. Approaching criminal responsibility as relations of responsibility differently illuminates the position of the self in such relations. A study of the criminal responsibility of women reveals a distinctive configuration of relations of responsibility. In Self Others and the State (CUP, 2020), and with reference to the laws of homicide, I argue that, on the level of legal form, women’s responsibility for crime is marked by particularity and specificity, as opposed to the generality and universalism claimed for criminal responsibility. This particularity and specificity is evident in the two sets of atypical responsibility forms – those forms that are restricted to particular individuals committing particular offences in particular contexts, and in which elements, such as offence and defence, conduct and fault, that are usually separate, are mixed together – that determine the contours of women’s responsibility for crime. In the first set of atypical responsibility forms, which was created over the first half of the twentieth century to accommodate violence by women, relations of responsibility centred on the relation of the accused woman with herself, where this relation was oriented around a personalised and psychologised notion of individual integrity. In recent decades, a second set of atypical responsibility forms was created in response to the need to accommodate violence against women, and, here, relations of responsibility are oriented around the self in relation to others, encompassing an extended sense of women’s autonomy, and implicating other actors, including state actors such as the police, in fulfilling that autonomy.