Liz Campbell is Professor of Criminal Law at Durham Law School, having worked previously at Edinburgh Law School and Aberdeen Law School. Her main research interest lies in the politics of definition in the criminal law. She has used this lens to analyse the legal responses to organised crime, corruption, DNA databases and the presumption of innocence. Aside from that, Liz loves cycling, running, hills, and food.

Mention “organised crime” in casual conversation and most of us will think of guns, drugs, Mexican cartels, and Italian godfathers. Claiming that it also covers LIBOR rigging or police corruption might raise a few eyebrows. That aside, the term is now part of popular parlance, despite much controversy, academic and otherwise, as to its meaning. And further debate centres on the role of women in it. The common depiction is rarely one of a truly autonomous and thus dangerous woman, but rather of the supporting and wilfully blind partner – think of Carmela in earlier seasons of The Sopranos, or Margaret in Boardwalk Empire. Both characters grapple with their complicity in their male partners’ actions, and their failure to resist and reject these criminal benefits.

Besides these fictional accounts, there is limited but growing consideration of the roles that women adopt and play in the context of organised crime. This knowledge gap is especially evident in the UK. Some of the literature suggests that our more active participation in the paid legal workforce is linked to a parallel increase in criminality. In this vein we might recall Freda Adler’s Sisters in Crime (1975), which focused on the “dark side of emancipation”, where the drive for equal opportunity in the legitimate sphere is mirrored by a growing involvement in serious crime. Increased labour opportunities, coupled with the changing role of women in the family and society, impact on previously demarcated gender roles in organised crime networks and groups.

Much of the existing academic literature focuses on certain types of organised criminality, such as human trafficking and, to a lesser extent, drug dealing. Research indicates that women’s involvement in human trafficking in particular seems to be due to some existing connection to the crime, either as a former victim or through partnership with men already involved. Rosemary Broad’s work flags up the implicit suggestion that women’s involvement is rarely through pure greed or personal choice, as is presumed in relation to men, but rather that their roles are determined by past experience and relationships.[1] Sheldon Zhang calls these “gendered markets” in which women are more prevalent because of the relatively low role of violence, the importance of interpersonal networks in facilitating such operations, as well as presumptions about care-giving to the exploited individuals.[2] In other words, human trafficking, which often involves sexual exploitation or forced domestic labour, intersects with the conventional interpretation of the “world of women’”. As for drug dealing, Jennifer Fleetwood notes that the female crack cocaine dealers she interviewed used and performed “respectable femininity” as a key strategy for keeping their dealing hidden and themselves out of trouble.[3] They hid and subverted their gendered dangerousness in a reflexive way.

Beyond these studies there is relatively little in the way of research in the UK on the role of women as quintessential “organised criminals” like drug traffickers, money launderers, and professional facilitators like lawyers and accountants.[4] Are women more or less likely to be involved in certain crimes or echelons of a group or network, and why so? Do their styles of leadership and enforcement differ from their male colleagues in organised crime? Are professional women averse or immune to the temptations of corrupt payments from organised crime groups, or is a lack of opportunity stymying involvement in this form of crime?

As well as the limited consideration of women as dangerous organised criminals themselves, no attention has been paid to the impact that counter-organised crime laws has on women in particular. To take Scotland as an example, the main piece of legislation is the Criminal Justice and Licensing Scotland Act 2010, which introduced a number of offences, like directing serious organised crime. The Act also makes it an offence to fail to report to the police your knowledge or suspicion that another person is involved in or directs serious organised crime. As criminal lawyers will recognise, this is what’s called a crime of omission; in other words, it’s your failure to act or to prevent harm, rather that a positive action, which is the “external” element of this offence. Your knowledge or suspicion must come from information obtained through your employment, or as a result of a close personal relationship if you have benefited materially from the other person’s commission of serious organised crime. The latter component is significant here, as it means that family members/partners of criminal actors must report under this section, for fear of prosecution and conviction. Nonetheless, the requirement of what’s called “material benefit” is to mitigate the potential harshness of this provision on family members/partners of persons suspected of involvement in serious organised crime who become aware of matters inadvertently.

In Scotland, the majority of those involved in organised crime are men – 89% persons identified through the Scottish Serious Organised Crime Group Mapping Project were male.[5] Furthermore, 637 persons have been reported to the Procurator Fiscal since the relevant sections of the Criminal Justice and Licensing (Scotland) Act 2010 came in to force, and of that, 98 were woman.[6] Given this gender disparity, the burden of reporting falls on their partners (the majority of whom will be women). Thinking in terms of human rights law, I suggest that this offence encroaches disproportionate way on private and family life (which is protected by Article 8 of the European Convention on Human Rights), and places an unjustifiable and dangerous burden on partners, spouses and children.

That said, there is a defence for a person charged with this offence to prove that she had a “reasonable excuse” for not making the disclosure. Surely her age, the nature of the relationship between the parties, and any potential imbalance of power would be taken into account at this juncture. As there does not appear to have been a reported case involving the section, it remains to be seen how it is applied by the courts. The Crown Office and Procurator Fiscal Service has reported that to date 11 women have been charged under this section, but no information regarding the outcome of these cases was available.[7] Moreover, it’s difficult to measure the effect of a law which prompts people to come forward with information when previously they would not have done so.

Of course, it would be preferable for people to report any suspicions and knowledge regarding serious organised crime to the police – but while we might agree that there is a civic responsibility and moral duty to assist the police, this shouldn’t be translated into a legal requirement punishable by imprisonment. Interestingly, 81% people living in Scotland say that they would report someone who they suspected of being involved in organised crime, and this figure rises to 85% among women.[8] It’s questionable whether this sentiment would also cover reporting on one’s partner. Overall, this provision overlooks the dynamics of intimate relationships, and the possible intimidation and danger experienced by female partners in particular.

Thinking about women’s involvement in organised crime, the critical question here hinges on whether women’s roles are shaped and determined by their individual characteristics, or by the opportunities for crime. As women reach further into leadership roles in various sectors, will this growth in power be mirrored in the illegitimate context? And simultaneously, we must ask whether women are or should be a feminising, and thus civilising force, who will compromise their safety and personal relationships to adhere to the requirements of the criminal law in reporting serious organised crime?

Sources

[1] Rosemary Broad, “A Vile and Violent Thing: Female Traffickers and the Criminal Justice System Response” (2015) 55 British Journal of Criminology 1058

[2] Zhang, S. X., Chin, K.-L. and Miller, J. “Women’s Participation in Chinese Transnational Human Smuggling: A Gendered Market Perspective” (2007) 45 Criminology 699–733.

[3] See Jennifer Fleetwood, “Keeping out of trouble: women crack cocaine dealers in England” (2014) 11 European Journal of Criminology 91.

[4] See Katie Benson, The Facilitation of Money Laundering by Legal and Financial Professionals (unpublished PhD, University of Manchester 2016).

[5] Preliminary Findings on the Scale and Extent of Serious Organised Crime in Scotland 2010, p4.

[6] FOI request July 2016, Ref R012841.

[7] FOI request July 2016, Ref R012841.

[8] Scottish Government, Public Perceptions of Organised Crime in Scotland (2013) p7