Sanitizing public spaces turns ordinary social activities into petty crimes
Associate Professor Khylee Quince is Dean of Law School at Auckland University of Technology.
OPINION: Last week our whānau had a heated discussion about what music would be effective in getting us out of a place where we weren’t wanted.
The teenagers, of course, had never heard of Barry Manilow, while us old Gen X punk rockers would lace up our skates and go if the sounds of ’90s R&B pierced the airwaves.
“Unpopular” music has been used as a crime-fighting and national-security tactic since the 1980s by local and national governments, as well as private companies – to discourage vagrancy and public disorder, and to encourage confessions and information sharing.
The social and legal control and regulation of people perceived as “difficult” in public spaces poses a challenge to authorities, who must balance the interests of ordinary people to go about their daily lives without unnecessary interference from others, against people whose presence or behavior may be deemed problematic.
The key to this balancing act is appreciating the levels of nuisance or annoyance that are part of the fabric of a vibrant democracy, while having the means to intervene when those levels exceed an unacceptable tipping point.
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Ordinary legal frameworks such as the Summary Offenses Act in New Zealand criminalize low level offenses of the public disorder type – disorderly or offensive behavior and intimidation, for example.
However, in recent decades, the creep of civil or private-type controls has increasingly occurred as a way to sanitize public spaces. This had the effect of casually redefining ordinary social activities as petty offenses – such as the gathering of teenagers or the consumption of alcohol in a public space.
Critics also say it is a way to banish or hide those who offend the middle classes, including the homeless, the mentally ill and sex workers.
In Britain, the attempt to crack down on anti-social behavior culminated in the introduction of the notorious “ASBOs” – the antisocial behavior orders promulgated in 1998, with a preventive and non-punitive purpose.
A civil, not a criminal, order, the ASBO was enacted to address drunkenness, violence, and bullying — by restricting behavior and banning recipients from certain places or people, like an injunction. Offenders were not subject to a criminal record or punishment unless the order was broken.
It was replaced in 2014 by the Criminal Behavior Order, which targets more serious and persistent antisocial people, who have been convicted of criminal offences.
Similar trends in the United States have seen the introduction of park ban and exclusion orders as a means of excluding socially marginalized people from contested public spaces – thereby criminalizing homelessness and young people.
In criminal justice, we call these “status offences,” which means that a person’s status with respect to age, residence, or other characteristics is deemed illegal or problematic. For homeless people, drinking or urinating in public is just drinking or urinating.
Police say de-escalation is ‘the only safe option’ at the protest in Parliament.
The innovative aspect of these approaches is the merging of civil trespass and nuisance laws with the more traditional higher-level criminal judicial authority attached to more serious damages. They are hybrid laws that abolish the boundaries between criminal law, which governs a citizen’s relationship with the state, and private or civil law, which governs the relationship between citizens.
Enforcing tort violations is costly and complicated for ordinary people. Hybrid strategies are a middle ground between the burdensome formalities of arrest, conviction, and punishment, but have actually increased the types of behavior subject to social and legal control.
Alongside anti-social laws and policies, strategies of “defensive architecture” in urban design and planning – including anti-homelessness spikes and curved benches with center armrests and pay-per-minute public seating. Youngsters are targeted with uncool music, an anti-skateboard design, and the infamous mosquito alarm, which emits a high-pitched sound that most older people can’t hear.
It is appalling that Olympic host cities have a habit of clearing their streets of young people, homeless people and undesirables before events, so as not to expose these elements to the public. When Vancouver prepared to host the 2010 Winter Games, authorities established a no-go red zone and gave police increased powers to move people from the streets to shelters.
In 2009, then-Mayor of London Boris Johnson pledged to “clean up” London’s streets ahead of the 2012 Games, giving police increased powers to stop, search and move people – with using high-powered water jets to discourage the street.
All of these strategies are based on a familiar thesis – what has been called “broken windows” or the zero tolerance theory of crime control, adopted especially in New York in the 1980s and 1990s.
The theory is that if authorities aggressively crack down on minor issues, such as broken windows in the metaphor, it will reduce more serious crime and disorder. The jury is out on whether this strategy worked, although there was no significant effect on major crimes.
American geographer Don Mitchell has called the growing control of public spaces “the annihilation of space by law” to clean the streets of those left behind by globalization.
In a famous passage from his 1894 novel The red lilyAnatole France observes that “the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal loaves of bread”.
As France well knew, the reality is that we don’t all have to, but that shouldn’t mean that others doing it is swept out of our collective sight to facilitate our comfort.