Overlapping criminal offences and gendered violence : what is overlap and when is it part of the problem of overcriminalisation?
University of British Columbia
Doctor of Philosophy - PhD
This dissertation examines when overlapping criminal offences contribute to the problem of overcriminalisation, using two case studies of gendered harms that are specifically criminalised by offences that overlap with other more general offences. Overcriminalisation literature notes that the “too much-ness” of the criminal law extends in two directions. Criminal law is both: too broad, criminalising conduct that it should not, and too deep, frequently criminalising the conduct that it does cover by many overlapping offences. However, the existing literature focuses most of its energies on issues of overbreadth, with overdepth mentioned frequently, but in a more cursory manner. This thesis addresses this gap in the literature. In assessing what portion of overlapping offences is part of overcriminalisation, it treats two questions separately: what does it mean in descriptive terms to say that two or more offences overlap with one another? and when in normative terms is descriptive overlap between two offences part of the problem of overcriminalisation? A key original contribution of my research is a taxonomical analysis of types of descriptive overlap. I also propose and apply to two case studies a collection of normative criteria which help to distinguish benign or justified overlap from problematic overlap. The thesis uses two gendered harm case studies to investigate these conceptual and philosophical dimensions of overlap in the criminal law: New Zealand’s proposed offence of non-fatal strangulation in an intimate partner violence context, which will descriptively overlap with general assault offences; and offences of sexual violence known in various jurisdictions as rape or sexual assault, which can be seen as overlapping with general assault offences. Gendered harm is a pressing problem in the Anglo-American jurisdictions that are the focus of this thesis. It is a problem the law historically has addressed badly. This makes gendered harm an illuminating lens through which to consider questions of overlap: the importance of effectively criminalising gendered harms such as strangulation in intimate partner violence settings makes it no less pressing that overlapping offences be scrutinised to assess whether they contribute to overcriminalisation.
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Law, Peter A. Allard School of