Crime as a Construction, 8.-9. October 2015
Organisers: Tyge Krogh, Louise Nyholm Kallestrup
Place: Kursusstation Knudshoved, Nyborg
Thursday 8. October
09.45– 10.15 Check in, coffee
10.15 – 10.30 Introduction: Louise Nyholm Kallestrup University of Southern Denmark
10.30 – 11.25 Jeppe Büchert Netterstrøm, Aarhus University: Criminalization of Homicide in Early Modern Denmark (16th – 17th Centuries)
11.25 – 11.30 Break
11.30- 12.25 Garthine Walker, Cardiff University: Sexual violence 1500-1800
12.25 – 13.30 Lunch
13.30 – 14.25 Louise Nyholm Kallestrup, University of Southern Denmark: Reformation, religious writing and royal ships. A witch hunt in the making in post-reformation Denmark (16th century)
14.25 – 14.30 Break
14.30 – 15.25 Tyge Krogh, Danish National Archives: The rise and fall of religious crimes and punishments (17th – 18th Centuries)
15.25 – 16.00 Coffee break
16.00 – 16.55 Manon van der Heijden, Leiden University:Women and Crime in early modern Holland (17th – 18th centuries)
16.0 – 17.00 Break
17.00 – 17.55 Nina Koefoed, Aarhus University: Legitimate and illegitimate violence within the 18th century household
Friday 9. October
07.30 – 09.00 Breakfast
09.00 – 09.55 Sace Elder, Eastern Illinois University: The construction of crimes against children in Germany (20th century)
09.55 – 10.00 Break
10.00 – 10.55 Asbjørn Romvig Thomsen: Danish National Archives: The Peasant, the Local Society and the Law 1775-1850. 75 Years of Conflicts in a Rural Society (18th – 19th Centuries)
10.55 – 11.30 Coffee break
11.30 – 12.25 Gunvor Simonsen, University of Copenhagen: Devilish Magic and African Superstition in the Danish West Indies, 1700-1848
12.25 – 13.30 Lunch
13.30 – 14.25 Peter Scharff Smith, The Danish Institute for Human Rights: The construction of crime as immoral thought processes – from religious conversion to cognitive treatment programs in prisons (19th – 20th Centuries)
14.25 – 14.30 Break
14.30 – 15.25 Peter Edelberg, University of Copenhagen: Traces of a Panic: The Making and Unmaking of a Pedophile Minority in Denmark (20th century)
15.25 – 15.30 Break
15.30 – 16.00 Concluding discussion
Criminalization of Homicide in Early Modern Denmark (16th-17 Centuries)
Jeppe Büchert Netterstrøm, associate professor, Aarhus University
This paper investigates the gradual criminalization and declining acceptance of homicide in early modern Denmark. Against the backdrop of medieval laws and feud practices, which show a rather lenient and ambivalent approach to killing, the paper demonstrates how wilfull manslaughter was increasingly criminalized during the century following the protestant reformation in 1536, but also how legal practices diverged from and subverted the initiatives taken by the state. A major obstacle to the implementation of the state’s agenda was created by the aristocracy’s use of its privileges and immunities to shelter its peasants against homicide prosecution, which was, in many cases, intimately related to the peasants’ own continued use of traditional peacemaking strategies (payment of wergeld, cessation of further revenge/feuding). Another major obstacle was the enduring social acceptance of certain homicides. During the second half of the 16th century, the state took a number of steps to eradicate these obstacles, and during the first half of the 17th century (especially 1615-1620), King Christian IV (r. 1596-1648) issued a number of new ordinances concerning different kinds of homicide (e.g. infanticide and dueling). These ordinances will be interpreted as signs of declining toleration towards certain types of homicide which had hitherto been deemed more or less acceptable, even by the state, rather than proscriptions of novel practices or countermeasures against any over-all increase in lethal crimes. To the contrary, the homicide rate seems to have been decreasing throughout the 16th and 17th centuries. All the new initiatives against homicide during the 16th and 17th centuries were part of an ongoing process of disciplining and pacification which seems to have effectively reduced the amount of serious violent crimes, although the local authorities’ implementation of new legislation does not seem to have been quite as unambivalent or vigorous as it was in cases of witchcraft or adultery. This paper thus addresses the thematic of ”constructed crimes” not by demonstrating the ”invention” of any entirely new kind of crime or the construction of hitherto completely unsanctioned forms of behaviour as crime, but rather by analyzing the accelerated criminalization of an action which had been (more or less) illegal and ”criminal” since times immemorial.
Changing Constructions of Culpability for Rape in England and Wales c.1600-c.1800
Garthine Walker, reader in history, Cardiff University
Much about rape seems transhistorical. Our knowledge of rape culture and rape myths informed trials and the way in which the media reported rape seems to apply to earlier periods as well as our own. When historians are faced with evidence of continuity – such as the dismal acquittal rate, under-reporting, rape myths such as women enjoy being forced and say no when they mean yes – it’s understandable that they have assumed that the history of rape is one of continuity rather than change. In this paper, I shall show that culpability for rape attributed to men and to women in early modern rape trials changed dramatically in the later decades of the eighteenth century – with far-reaching implications – and offer some explanation for those changes.
Reformation, religious writing and royal ships. A witch hunt in the making in post-reformation Denmark
Louise Nyholm Kallestrup, associate professor, University of Southern Denmark
In the early modern period witchcraft was closely linked to heresy and apostasy. Throughout the Middle Ages, the condemnation of magic and witches had been debated, and following the Reformation renewed interest in witchcraft appeared in most of Europe. Danish reformers, most prominently Niels Hemmingsen, linked the offence to idolatry, Catholicism and heresy, and made extensive use of these terms in their writings aimed at consolidating the Evangelical faith. Still, the Danish Reformation of 1536 had meant leaving witch trials entirely with secular courts led by lay judges, and the phase referred to as the ‘witch hunt’ did not take place until almost a decade later (1617-1622). This paper investigates the efforts made to condemn witches and the trials against them in the final decades of the 16th century. A phase that can be named the early and making of the Danish witch hunt. It argues that in these years a series of events and writings carried the seeds to the severe witch hunt of 1617-1622; among some of the most important events the bewitchment of the royal navy in 1589 and the comprehensive witch hunt that followed both in Copenhagen and in Edinburgh.
The rise and fall of religious crimes and punishments
Tyge Krogh, senior researcher, The Danish National Archives
Religion had a core role in defining serious crimes after the Reformation in Lutheran Denmark. Not only the harsh penalties for religious and sexual offences but also the death penalty for homicide was based on religious beliefs. The religious impact on legal practice culminated in the 17th century, and its most detailed influence on legislation is found in Danish Law of 1683. The proscriptions and punishments laid down in the Law were left unchanged until 1866, but in practice they began to be questioned immediately after the Law was enacted. The Divine mandatory death penalties were intensely debated internally in the state administration, and several strategies to avoid issuing the death penalties were suggested. The religious frame for sentencing and punishing were gradually given up in the first sixty years of the 18th century.
In a European context the religious impact on legal practice differed markedly following confessional borders. The paper will present the differences and discuss possible explanations.
Women and Crime in early modern Holland
Manon van der Heijden, professor, Leiden University
Criminologists and historians generally assume that gender difference in recorded crime are rather static over time and that women are in general less likely to commit crime than men. However, in early modern Holland women’s share in crime was sometimes 50 per cent. The explanation for this must be found in the characteristics of Holland in the 17th and 18th century: high level op urbanization, many migrants in cities, seafaring communities and freedom for women. In the cities of Holland, a considerable part of the women were alone and responsible for the family income. These women were independent, but also vulnerable. Consequently, they run higher risks to commit crime and to be prosecuted.
Legitimate and illegitimate violence within the 18th century household
Nina Javette Koefoed, associate professor, Aarhus University
The 18th century Danish household was the very possible witness to legitimate violence, but also illegitimate and tabooed violence took place within it. According to Danish Law, the master of the house, hold the right to corporal punishment of both children and servants. But his right to punish was limited, even though the boundary between his legitimate right to punish and his illegitimate exercise of violence against members of his household was blurred. This paper is asking how the line was drawn and negotiated through legal questions? While the master of the house had a legal right to punish and thereby an acknowledged right to exercise violence, any kind of violence against him was regarded a very serious crime and sin. Violence against parents and the master of the house was violence against the structures and hierarchy of the household. But in Lutheran ideology it was also violence against all authorities, both King and God. This paper will investigate how and to which extend criminalization, or lack of criminalization of violence within the household did reflect the ideological foundation of the state, understood as Luther’s doctrine for the household. And ask how this understanding of violence within the relations of the household made a point of departure for legal negotiation of the boundaries for this violence.
Conflicts in a rural society 1775-1850. Peasants vs peasants, peasants vs authorities
Asbjørn Romvig Thomsen, senior researcher, The Danish National Archives
The key concept of this project is ‘conflict’ – conflicts among ordinary people and conflicts between ordinary people and the authorities. Why conflicts? Firstly, they are interesting because they per se tell us about the border zones of society. Conflicts arise because two actors do not agree on the correct way of ordering life: the conflict, thus, in a historical context can give us not only a picture of the borders of the historical society but as a consequence of this also a picture of what was understood to be within the borders. Secondly, conflicts tend to provide us with a more solid and qualitative source material than many other phenomena of the past because authorities were concerned with solving the conflicts.
In other words: The documents of specific public conflicts in a historical society contain information which can make us discover otherwise forgotten features of the historical society in question. With this as a starting point my project will aim at answering the following main questions:
- How often were ordinary people involved in public conflicts?
- Which kinds of public conflicts were prevalent during the period?
- What do the conflicts tell us about the dynamics of the local society?
- How is the development in public conflicts 1775-1850 related to the macro developments in Danish society during the same period?
A key feature of my project is that it will take into account the context of the involved individuals as an important analytical factor. This is possible only in a micro historical project: I have chosen to focus on a rural area in the middle of Jutland – the three neighbouring parishes Junget, Selde and Torum – in the period from ca. 1775 to the middle of the 19th century. The reason for choosing these three parishes is the fact that I have a database with extensive and quite detailed information about the life courses of most of the individuals in the population of the parishes during the period.
This feature is important, as I assume that conflicts rarely stand alone: they have a background which might be personal, historical, social, financial – and the background is not necessarily mentioned in the documents related to the specific conflict. I therefore expect that the documents about the conflicts combined with my knowledge about the involved individuals’ lives will provide me with a quite unique possibility of interpreting what is actually at stake in the different public conflicts.
Identifying the Victim: The Criminalization of Child Abuse in Germany
Sace E. Elder, professor, Eastern Illinois University
At turn of the twentieth century, an organized movement for child protection launched a legal reform campaign to introduce child physical abuse into the German Criminal Code. As in the United States, Great Britain, and other European countries, nineteenth-century bourgeois notions of the vulnerable child in Germany converged with constructions of the child as a social good, authorizing public interventions into private spaces. German protectionists thus initiated two phases of criminalization to protect children from transgressions of adult authority: The first culminated in the introduction of physical abuse into the grievous bodily harm paragraph (§223) of the RStGB in 1912. The second ended with the further revision of that paragraph in May 1933 to include psychological abuse. Defining what constituted abuse (Mißhandlung) raised fundamental questions about the place of physical force in German childrearing practices, and how to determine the limits of what constituted the limits of acceptable violence. But it also required defining the child as a legal subject. This criminalization of child abuse has been largely forgotten in the historiography on child welfare and criminal justice; yet it represented an important transition in the legal-cultural understanding of the role of violence in German society and of the child as a legal subject.
Using the concept of legal cultures as a framework for analysis, this paper focuses on three interconnected issues raised in these criminalization debates, which involved legislators, jurists, child protection experts, the press, and lay persons. First, criminalization required examining the nature of the child’s protected legal interests at precisely a moment when psychologists and social workers were reconstructing the child as a psychological being. Second, the child’s interests also raised questions about the legal sources of adult authority over children’s bodies. Whether the right to children’s bodies derived from natural, positive, or customary law was very much in debate at this moment. Finally, the criminalization of abuse also brought to the surface contradictory ideas about the endangered and the dangerous child—the child as a vulnerable creature and as a potential threat to the moral order.
Devilish Magic and African Superstition in the Danish West Indies, 1700-1848
Gunvor Simonsen, assistant professor, University of Copenhagen
In 1701, Director Vanbel of the Danish West India and Guinea Company sentenced a sorcerer to burning on the Danish West Indian island of St. Thomas. The man made clay figures speak and turned wooden sticks into tools of divination. Thirty years later, magic was no longer considered a danger to white authority in the Danish West Indies. In 1733, Governor Philip Gardelin of St. Thomas issued a draconian slave code, containing horrible punishments, death, mutilation and hundreds of heavy lashes to those enslaved who “set aside their slave duties”, ran away, stole or showed themselves insolent towards their white masters. In contrast, practitioners of magic were to receive a harsh beating. This was one of the mildest punishments contained in the slave code of 1733, where African spiritual power had been turned into “superstition”. Yet, African magic as a crime was not so easily done away with. At the end of the eighteenth century magic, now called obeah, again came to the attention of the Danish West Indian police and it became a crime prosecuted in the police courts and lower courts in the Danish West Indies.
In this paper I follow the trajectory of magic in the Danish West Indies during the eighteenth and nineteenth centuries, and I argue that Africans and their descendants were central to the construction of magic and later obeah in the Danish West Indian courts. Africans in the Danish West Indies came from societies along the West African littoral from Senegambia in the North to Kongo and Angola in the South, yet they shared an understanding of the world as a place shaped by earthly and spiritual forces. Engagements with spirits were central to the wellbeing and fate of all and spiritual experts were able to manipulate the spirits to secure desired outcomes, both good and bad. So many Africans had a particular interest in controlling and limiting the work of these experts; and one way of doing so was to involve colonial authorities in conflicts concerning the management of the magical. Though magic and obeah was seemingly of little interest to officials in the Danish West Indian colonial administration, slaves’ complaints and stories about magic and obeah led to investigations and trials. In this way, Africans began a long conversation, with Danish colonial legal staff about the nature of the supernatural and managed to renew colonial focus on African spirit power; a focus that had otherwise been dwindling after the introduction of the 1733 slave code.
The construction of crime as immoral thought processes – from religious conversion to cognitive treatment programs in prisons
Peter Scharff Smith, senior researcher, The Danish Institute for Human Rights
Since the early 19th century morale conceptions about rehabilitation of criminals have to a greater or lesser extent influenced the treatment of offenders and prisoners. Many of the tools developed in that regard have gone hand in hand with the general scientific optimism and the art of social engineering that followed in the wake of the Enlightenment. As the use of imprisonment gradually replaced the public physical punishment practiced in the 16th-18th century, attempts to rehabilitate criminals have increasingly been linked to the prison as an institution – especially since the 1820s-30s, when the modern penitentiary broke through.
In this contribution I will broadly describe how the philosophy of rehabilitation has developed and influenced prison practice from the 1830’ies until today. I will argue that crime has often been socially constructed as deviant behaviour characterized by individual immoral thought processes – i.e. abnormal “criminal” thinking. Through the creation of such constructions, crime has become a both moral and modern category through which various groups of people over time have been separated and marginalized from the rest of society. In my analysis I will focus on the ideology of the modern penitentiary in the middle of the nineteenth century, which I will compare with the breakthrough of cognitive treatment programs in prisons in the 1990’s. I will empirically describe how the ideology of rehabilitation in both cases shares a number of common traits that revolve around morale concepts, which locate the cause of criminality in the individual offenders’ inappropriate way of thinking and lack of social skills. Finally, this raise a number of questions regarding whether or not we for the past almost 200 years perhaps have been caught in a narrow definition of crime and rehabilitation, which relies on a peculiar fusion of modernity and morality?
Traces of a Panic: The Making and Unmaking of a Pedophile Minority in Denmark
Peter Edelberg, external lecturer, PhD, University of Copenhagen
The concept of ‘the pedophiles’ was largely unknown in Denmark for most of the twentieth century. When it appeared in the media in the 1960s, the concept was used to distinguish between law-abiding and criminal homosexual men, and was part of a successful campaign to clean up the rather hedonistic gay male culture of the period. In the early 1970s a pedophile activist group appeared which had several conflicts with the established gay and lesbian organization over questions of alliances, sexual liberation, and solidarity. Due to increased public anxiety over pedophilia in the late 1990s and early 2000s, the pedophile activist group dissolved itself in 2003. In later years the idea of a predatory group of organized pedophiles has largely been replaced with the more fluid concept of ‘the molester’, and pedophile panics have died out. However the pedophile panics of the turn of the millennium have left their institutionalized mark on laws, habitus, ideas about sexuality, and gender roles in Denmark. In my talk I will describe these cultural traces of the pedophile panics, and also address the question of how the pedophiles were articulated as a sexual minority in the first place, and the different strategies those articulations were part of over the years.