Study Notes

Problems in Defining Crime

A Level
AQA, Edexcel, OCR, Eduqas, WJEC

Defining crime is problematic as it is a social construct and therefore heavily reliant on the context in which it is set.

Simply put, crime is seen as an act against the community, which requires a legal punishment. In UK law, crime is determined when a guilty act (actus reus), violates the law. Furthermore, an act is seen as a crime when it is clear that the act was carried out voluntarily and that there was an intention (mens rea or “guilty mind”).

Despite this standpoint, there are numerous problems to consider when defining crime, including historical context, cultural context, age and specific circumstances.

Historical Context

One important consideration is that as times change, so does the law. Acts which are considered criminal at one point in time are not necessarily considered criminal at another point. The most pertinent example of this is homosexuality: In the earlier part of the 20th century it was illegal in the UK to commit a homosexual act (specifically relations between two men), whereas now that would not be thought of as it was decriminalised in 1967 under the Sexual Offences Act.

The reality of this was dramatised in the 2014 film The Imitation Game, which told the true story of computer scientist Alan Turing, the man responsible for breaking the Nazi’s Enigma code during the Second World War. Turing was hailed as a hero for his wartime efforts, but arrested in 1952 for engaging in a same-sex relationship. Turing was offered the chance to escape imprisonment if he willingly took part in hormonal aversion therapy to remove his homosexual urges, which Turing opted for. In 1954, Turing was found dead in his home and it was concluded that suicide was the cause. In 2014 the Queen issued Turing a Royal Pardon, overturning his charge of gross indecency.

Another more recent example of legal changes concerns child discipline: Section 58 of the Children Act 2004 stipulates that it is unlawful to hit a child under 3 where it is not in the context of “reasonable [parental] punishment” and where a mark of some description may be left on the child it constitutes grievous or actual bodily harm. Another way of considering this issue is the way that technological advances have resulted in new forms of crime that previously did not have a legal framework, for example in the form of identity theft and cybercrime (Wall, 2007).

Cultural Context

Culture is also relevant to how we define crime, particularly as the United Kingdom is a very diverse country. For example, one culture may be accepting of polygamous marriage (having more than one wife). However, being married more than once (known as bigamy) is illegal under Section 57 of the Offences Against the Person Act 1861. Another area of increasing focus in the UK is that of female genital mutilation (FGM), often performed on young adolescent girls, which is considered acceptable in some cultures where it is seen as a sign of entering into womanhood, but is incredibly dangerous to the individual concerned. Consequently, it has been written into UK law that it is unlawful to perform FGM in the UK. Furthermore, it is also unlawful for permanent UK residents to take children out of the UK to have the procedure carried out. The Female Genital Mutilation Act 2003 replaced the Prohibition of Female Circumcision Act 1985 and the maximum penalty was increased from 5 to 14 years in prison, as a clear deterrent to those looking to practise it.

Furthermore, it is also worth noting that across the world, different countries exercise different laws. For example, homosexuality is illegal in an estimated 74 countries and in 13 of those, it is punishable by death. It is therefore important to consider cultural relativism when defining crime because it highlights that laws differ in different cultures.


Age is another issue which affects the defining of crime. The age at which an individual is considered legally responsible is debated. For example, if a 3-year-old child took something off the shelf in a shop and left without the parent having noticed them taking it, would it be considered a crime? Technically it is stealing, but you wouldn’t suggest that the child is criminally responsible because of their age. Of course, this is reasonable within this specific example, but what about when the child is 7 or 10? When do they actually know that they are breaking the law?

In the UK, the age of criminal responsibility is ten, but previously it was eight. What this means is that a 10-year-old can be tried in court as the legal system regards them as having sufficient understanding to tell the difference between right and wrong. While this makes sense, in theory, it still poses a discussion when very serious crimes are committed by young children. The most notorious example in this country is that of 3-year old James Bulger, who was murdered by Robert Thompson and Jon Venables, who were both ten at the time. The severity of their crime caused an outcry, but prompted the discussion of who was really to blame, the boys or their difficult backgrounds. If it was the latter, that would add a further question mark to the age of criminal responsibility: Were they emotionally mature enough to know that what they were doing was so seriously wrong?

Specific Circumstances

Despite the UK’s legal approach of actus reus and mens rea (see introduction), there are occasions where this approach to defining a crime is not appropriate. There are circumstances under which a law might be broken and a court judges it to be for good reason. For example, a man may be caught speeding, but he is desperately trying to get his wife to hospital as she is in labour. In this situation, has he committed a crime? Yes, in terms of the legal framework, but not necessarily when one considers the specific circumstances of his motivations for speeding. Blackburn (1993) argues that the defining feature of crime is that it should be seen as “conscious rule breaking”, in short when people know that what they are doing is wrong and yet choose to do it anyway.

Ultimately a legal court is an important part of judging a crime and as such these problems are hopefully taken into consideration when a judgement is being made.

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