Every year when I teach my Criminal Law & Procedure class at Robson Hall, we invariably come to the topic of harm and morality rather early on. Specifically, we speak about the basis for prohibiting certain conduct as "criminal". Should the state only criminalize behaviour that is essentially harmful to other persons, or should it also prohibit conduct that may solely be based on purely moral considerations?
An important example used to illustrate the problem of a strictly morality-based rationale is the criminal prohibition of consensual sexual relations between individual adults of the same sex. During the 1950s, a British parliamentary committee was created to examine the decriminalization of prostitution as well as consensual sexual relations between same-sex partners. After much deliberation, the committee recommended the latter. This met with certain opposition. One of the more famous opponents to such decriminalization was Lord Patrick Devlin who argued that morality on its own was a perfectly sound basis for legislating with respect to the criminal law. To determine what constituted the common morality, Devlin suggested that we must examine the feelings of the "reasonable man" on the Clapham bus. The forces behind the moral law were, according to Devlin, intolerance, indignation and disgust. Devlin observed that the reasonable man was not necessarily rational. In the 1960s, Lord Devlin's position did not win out. The prohibition was repealed. To his credit, Devlin later reversed his earlier position and eventually supported legislation changing the law. Similar developments took place in Canada in 1968.
Before these legislative changes took place, many people were convicted of criminal indecency based on nothing more than (consensual) sexual acts. One such person was Alan Turing, a leading British code breaker during the Second World War. He and his team decrypted numerous coded Nazi messages that were critical to the British war effort. Following the war, he was arrested and convicted of gross indecency. As an alternative to incarceration, he was chemically castrated. After a year of government-mandated hormonal therapy, Turing committed suicide.
Turing's story was depicted in the film, The Imitation Game (TIG). Much of the film concerned his team's painstaking but ultimately successful efforts to crack Germany's encryption code. Nevertheless, the film also serves as an important creative work concerning law and popular culture. As a product of popular culture, TIG illustrates the brutality of the criminal law when deployed to enforce the morality and prejudices of Devlin's "reasonable man". Indeed, interspersed throughout the film are scenes of Turing's social isolation as an awkward genius and closeted gay youth in a country and culture which legally and socially did not tolerate homosexuality. Yet the harshness of the law was more prominently illustrated when after having played a pivotal part in the war effort against the Nazis, Turing was charged, convicted and cruelly punished (though given the nature of the crime - any punishment would arguably have been cruel). By the film's end, the audience learns that Turing was granted a posthumous royal pardon amid the 49,000 men who were similarly and unjustly convicted but received none. While at one level, TIG illustrates the harm inflicted by discriminatory laws on an unsung hero, it reminds us that many others, heroes or otherwise were targeted and victimized by such laws.
As a law film (or at least one aspect of it), TIG engages in "cinematic judgment". As noted law and film scholar Orit Kamir observes, law films can engage their audiences in cinematic judgment by training and moulding viewers in judgment while examining legal norms, logic and structures. Another way to consider this, in Kamir's words, is that law films perform acts of wide-scale legal indoctrination. She writes: "A law-film can be read as passing cinematic judgment when, in addition to portraying an on-screen fictional legal system, it offers alternative cinematic constructions of subjects and societies, of justice and judgment." Building on this, Kamir asserts that "a law-film may constitute a community and value system that criticizes or undercuts those supported by its fictional legal system."
TIG performs acts of legal indoctrination against discrimination. It illustrates, at least with respect to the human rights of sexual minorities, the perils and injustices perpetrated through the imposition of morally based criminal legislation. TIG encourages judgment and critique of an unjust and unfair system that targets vulnerable persons, here, in particular, a war hero. Rather than a deviant, TIG reconstructs Turing as a heroic subject who worked long hours to serve his country and fight against the Third Reich. In so doing, it undercuts the value system portrayed in the movie, which reflected the norms of an earlier time.
TIG is both an example of being critical of past discrimination toward sexual minorities and its present and future. One cannot but help notice that the film is created in a period where there is a raft of discriminatory penal laws singling out LGBT communities that currently exist and/or contemplated in numerous states and societies. Accordingly, TIG is also prospective and implicitly engages in judgment toward states that currently engage in discrimination through the criminal law.
As I discussed in an earlier post, films and other visual depictions may be useful tools with respect to legal education. As is the case here, the discussion of harm and morality as a basis for legislating criminal prohibitions is not an abstract exercise of socio-political power. It is one that had/has a tremendous impact on those affected by morality-based legislation.
"Family of Alana Turing to Demand Government Pardon 49,000 Other Men" The Guardian (22 February 2015)