I shall not mince words and say it as it is: decriminalization is one step closer to legalisation.
It is like saying that a certain action is in breach of the law, but if you commit it, you will not be punished for it. If you wish to deter someone from doing a specific action, you need to have in place an effective deterrent, failing which the whole exercise will be self-defeating.
The growing mentality to decriminalize specific situations is not new to Malta, or most countries around the world, for that matter.
Remember a few years back, how sodomy, adultery, the vilification of the Roman Catholic religion and pornography were decriminalized, or how defamation was relegated to a simple civil tort?
There is no doubt that law is not static, but dynamic. Yet the concept of law is based on a number of core values and universal principles which are there to withstand the test of time.
Decriminalisation reflects changing social and moral views. A society may come to the view that an act is not harmful, should no longer be criminalised, or is otherwise not a matter to be addressed by the criminal justice system.
Liberal, and ultra-liberal movements around the world have been a major driving force for the lessening or termination of criminal penalties in relation to a number of acts. A few other countries have long been succumbing to social pressure for decriminalising certain actions, as was the case, for example, of Singapore which only decriminalized attempted suicide in January 2020.
On the home front, we currently have at least three major topics about which a growing number of voices are clamouring for their decriminalization, if not their legalisation. We are hearing much about whether to legalise or not prostitution and sex workers, the decriminalisation of cannabis possession for personal use, and lately also on whether to decriminalise abortion.
Yet one should not rush in where angels fear to tread, even where a majority are clamouring for the decriminalisation or legalisation of a specific action or situation which eventually may unintentionally lead to unwarranted consequences.
Social and moral arguments calling for the decriminalisation or legalisation of euthanasia is already making its rounds in our society.
At this rate, it will be no surprise at all were we to also start hearing of advocacy for the decriminalisation and legalisation of polygamy, bigamy, public nudity and steroid use in sport.
As a rule, the formal procedure of decriminalisation should follow a long and highly contentious process, whereby those who engage in the behaviours that have been criminalised start to question the assumptions behind those legal regulations. Whether or not they start this quest and successfully carry it through depends in large part on the system of beliefs that is dominant in the context in which they operate. Generally speaking, decriminalisation of the behaviours I have mentioned so far is connected to a worldview in which bodily integrity and individual self-determination are widely shared values.
A general tendency, in Western nations especially but probably throughout the world, is that behaviours that do not do direct harm to others should be gradually freed from juridical constraints. For lack of a better term, I would label these ‘lifestyle offences’. These are offences that are not committed for material gain and that, regardless of their unintended consequences, are first and foremost an expression of the cultural, political and social status or identity of the perpetrator. Decriminalisation thus serves as an indicator of a certain worldview in which values like bodily integrity and individual self-determination are institutionalised by reducing the right and leverage of authorities to intervene in individual behaviours, lifestyles or beliefs that do not do direct bodily harm to other members of society.
Still, there are many exceptions to this rule that make it difficult to make a strict connection between liberalism as a belief system and decriminalisation of lifestyle offences. Polygamy, for instance, cannot be said to inflict direct harm upon others as long as all the parties involved agree on this marital arrangement, but it is still forbidden in the liberal European states and allowed in many less liberal states in the Middle East. Moreover, even the most liberal countries define as criminal many behaviours having to do with lifestyle.
It would be inaccurate to consider decriminalisation as simply a juridical affair. Normally decriminalisation is highly contentious. It is usually not a straightforward and instant policy measure but rather a haphazard, long-term process. Finally, decriminalisation is usually double processes. On the one hand, repressive government policies are used with more restraint as repression is seen to contribute to, rather than solve, the problems they were designed to alleviate.
On the other hand, a range of policies are put in place in order to regulate the excesses or dangers that might result from deviant behaviour. Understood in this way, decriminalisation can be considered as the way in which society accepts paternalistic responsibility for the social problems that are experienced by groups that are culturally deviant or socially marginalised.
Drugs, abortion, prostitution, gambling and many other similar ‘lifestyle offences’ have over the years destroyed many lives. Yet one must ensure that wrongheaded governmental policies do not destroy many more.
Dr Mark Said is an advocate