Sociology Mind
2013. Vol.3, No.1, 1-6
Published Online January 2013 in SciRes (
Copyright © 2013 SciRes. 1
Deviants or Consenting Adults: A Human Rights
Approach to Defining and Controlling
Deviant Behavior
Einar Nick Larsen
Department of Sociology, Ch apman University, Orange, USA
Received October 11th, 2012; revised November 17th, 2012; accepted November 29th, 2012
This article examines the concept of deviance within a human rights perspective. The current debate over
the need for consent, and the difficulty inherent in attempting to reach a consensus regarding definitions
of deviance, are discussed. The positivist and subjectivist-constructionist approaches to defining deviance
are outlined and critiqued. It is concluded that both of these models are inadequate for defining deviance
and that a more objective approach is required which reflects society’s interests, while also protecting in-
dividuals from the tyranny of the majority. This conclusion leads to the development of a new model of
deviance which incorporates human rights into the method for defining deviance. This model rests on the
argument that there is a crucial difference between behaviors which are undesirable and those which are
unacceptable. It is further argued that only unacceptable behaviors should be prohibited and that behav-
iors which are merely undesirable should be tolerated and regulated. A model is elaborated in which five
criteria are posited as a methodology for determining whether particular behavior is deviant and/or whe-
ther it should be controlled through criminal sanctions.
Keywords: Deviance; Positivist; Constructionist; Human Rights; Social Harm; Social Control; Legal
Concepts of deviance, and the quandary over how deviance
should be defined, involve questions and debates that have pla-
gued human societies since the beginning of time. Cultural an-
thropologists argue that “deviance”, as a concept, constitutes a
broad cultural universal because all known societies have in-
corporated such a concept into their cultures. However, despite
the universality of the concept, there is very little agreement
regarding the specific activities that are considered “deviant”,
and thus precise definitions of deviance vary greatly across
societies and time periods. In addition, there is a great deal of
debate regarding the degree to which a society should limit or
prohibit certain types of deviant behavior in order to protect the
interests of a majority of society’s members. Such limitations
or prohibitions are usually referred to as “social control”, and it
is generally agreed that any form of social control necessarily
limits the freedom of individuals who wish to engage in the
controlled behavior. For this reason, the manner in which be-
havior is defined as deviant, and the decisions to control some
behaviors but not others, reflect some of the most important and
fundamental issues facing any society.
In one sense, the definition of deviance is simple. Behavior
which contravenes accepted standards of behavior, often called
social norms, is considered deviant. Thus, college professors
who cancel most of their classes, or fail to administer exams,
would likely be considered deviant by their peers, even though
they might be popular with their students. On a more serious
level, unprovoked assaults or premeditated killings would also
be considered deviant because most societies have social norms
against such activities. However, the reliance on social norms
as a means of defining deviance is problematic because it does
not address the crucial question of why these social norms were
created in the first place1. The traditional response that social
norms attempt to control behavior that is undesirable or threat-
ens social order is inadequate because it fails to account for
why many activities are considered deviant and/or controlled. It
is easy to understand why there is widespread agreement in
most societies that assault and murder are deviant and should be
controlled. Clearly, uncontrolled assaults and murders would
disrupt social order and cause a great deal of harm to a society’s
members. Indeed, one can also see why canceling classes and
the failure to administer exams would be undesirable insofar as
it would ultimately result in a lowering of educational stan-
On the other hand, there are many other activities that are
often considered deviant, and frequently controlled through
criminal sanctions, where this definition is harder to apply. For
example, activities such as prostitution, homosexuality, viewing
pornographic materials and drug use are frequently considered
deviant and sanctioned by formal and informal means of social
control. Although some of these activities have the potential to
disrupt social order, it is difficult to argue that they pose the
1Robert Merton, one of sociology’s more renowned deviance specialists
once argued that it is “absolutely true and trivial” that deviance is a
transgression of norms (Merton, 1971: p. 827). Although it is generally
agreed that Merton meant that the norms were to be accepted as a given
it is also possible to argue that such a definition is “trivial” because it is
circular and tells us nothing substantive about what deviance really
means in a specific con text.
same degree of harm as assault and murder. It is also clear that
there is a great deal of ambivalence in many societies regarding
the degree to which these activities should be considered devi-
ant. Further, there is even more debate over whether such ac-
tivities should be sanctioned through the criminal law. Indeed,
homosexuality and pornography are already legal in most re-
spects, and there is a growing movement to legalize the medical
use of marijuana. It is also important to note that public and
legal attitudes towards these activities vary greatly throughout
the world, and that many European countries exhibit much more
tolerant attitudes towards them2. Further, attitudes and concep-
tions of deviance have also changed dramatically throughout
history, and activities that are now commonplace were once
considered serious crimes. In this respect, sodomy (homosexu-
ality) was a capital crime as late as the early 19th century, and
midwives were burned at the stake as witches during the 17th
Although reaching a consensus over the definition of devi-
ance is a difficult and elusive task, one thing is clear. Defini-
tions of deviance represent a particular set of values, and there
is often a lack of consensus regarding the degree to which such
values are reasonable or appropriate. In this respect, it is ex-
tremely important for any democratic society to ensure that the
definition it uses to define activities and behavior as deviant is
based on values that reflect the interests of the society as
broadly as possible. It should also be clear, however, that reach-
ing a consensus is not the only important criteria. One only has
to recall the widespread consensus among white southerners
against inter-racial marriages during the civil rights era to real-
ize how a “consensus” can easily represent the “tyranny of the
majority”. In formulating an acceptable definition of deviance,
it is important to employ a set of criteria that make the process
as “objective” as possible, while also recognizing that the proc-
ess is inherently and irrevocably “subjective”. It is the intent of
this article to explore the ways in which different approaches to
deviance can be used to protect the majority from disruptive or
harmful behavior, while also protecting the legal and civil
rights of individuals who wish to engage in behavior which is
merely different, but not necessarily dangerous. In order to de-
velop this “human rights” approach to deviance, it is first ne-
cessary to discuss several of the approaches currently used in
socio-legal studies.
Contemporary Socio-Legal Approaches
to Defining Deviance
In addition to the social and cultural preoccupation with de-
viant behavior, socio-legal theorists also wrestle with how to
define deviant behavior for the purposes of analysis. This ap-
proach to deviance is distinct from the definitions applied by
society3, even though socio-legal theorists often attempt to
mirror the definition used by the particular society that they are
studying. First, whereas societies define deviant behavior to
facilitate social control, socio-legal theorists use definitions of
deviance to delineate the limits of what is included in the
analysis of deviance and social control. In other words, the
definitions help them define what they will study. A second
major difference between societal and socio-legal conceptions
of deviance is that socio-legal theorists do not necessarily ac-
cept or agree with the negative stigma applied to the behavior
encompassed by the definition. In this respect, socio-legal theo-
rists are concerned primarily with how societal conceptions of
deviance affect social interaction and social order. They are
also interested in how the application of deviant labels affects
the lives of people who are labeled, as well as those doing the
labeling. Thus, for socio-legal theorists, the definition of devi-
ance is often a heuristic tool that defines what they study, and
provides points of departure for analyzing different aspects of
deviant behavior.
The Positivist Approach to Defining Deviance
Most socio-legal4 conceptions of deviance are descriptive in
the sense that they attempt to define what is considered deviant,
rather than question whether an activity should be considered
deviant. One of the earliest definitions was articulated by Tal-
cott Parsons, who argued that deviance was any failure to abide
by the norms of a common culture (Parsons, 1951: p. 206). This
definition did not argue that a negative reaction was necessary,
and seemed to imply that deviance was inherent in the depar-
ture from social norms, regardless of whether it elicited any
social or moral disapproval. Many other socio-legal theorists
adopted Parsons’ basic premise that deviance was objectively
tied to social norms. Indeed Robert Merton, a disciple of Par-
sons, argued that it was so obviously true that deviance was a
violation of social norms that it did not need to be questioned
further (Merton, 1971). Subsequent discussions of this norma-
tive definition of deviance debated such issues as how signifi-
cant the norm violation had to be, whether the violated norm
had to be related to the violator’s social status, and whether a
negative reaction was a necessary element of the definition
(Goode, 1997: pp. 16-26). This latter question was resolved in
favor of the position that a violation of social norms was devi-
ant, even if it happened in secret and no negative reaction oc-
This approach to defining deviance evolved into what is cur-
rently described as the positivist approach to deviant behavior5.
There are many different versions of the positivist approach and
these different versions are frequently in disagreement over key
points6. Nevertheless, it is possible to identify several common
assumptions and arguments that are essential elements of the
approach. First, positivist socio-legal theorists view deviance as
intrinsically real in the sense that it is qualitatively different
from non-deviant behavior. In this respect, it possesses an inhe-
rent ability to affect people disagreeably (Thio, 2007: pp. 5-8),
4It should be noted that although much of the early work on the topic
was carried out by sociologists, for the sake of consistency, the term
“socio-legal” will be used th roughout this discussion.
5This approach is also sometimes referred to as the objectivist approach.
6For example, s ome socio-legal th eor i sts s t i ll i n clude the con cep t of absolute
norms and values as part of the positivist approach, despite the fact that no
one has ever been able to articulate a single example of an activity that is
considered wrong in all circumstances (Jacobs, 2002: p. 2). Most positivist
socio-l egal theorists n ow recognize th at concepts of dev iance are relativ e to
time and p l ace, just as norms and v al ues change o v er t i me a n d are relati v e t o
a particular cultural milieu.However, this latter statement is quite different
from the ar gument that deviance is simply a lab el that has no meaning out-
side of a
articular context.
2Amsterdam, for example, has built a thriving tourist industry that relies
heavily on visitors drawn by Holland’s liberal approach to drugs, pornogra-
phy and homosexuality, three activities that are stigmatized to varying de-
grees in many other societies.
3For the purposes of this discussion, the term “society” will be used to refer
to all social groupings that apply conceptions of deviance to the activities o
their members.
Copyright © 2013 SciRes.
and evokes an automatic negative reaction that stems from its
conflict with society’s core values. This negative reaction is
independent of the behavior’s legal status, and thus the de-
criminalization of an activity will not diminish its deviant status
until cultural and social norms also change to accept it (Jacobs,
2002: p. 3)7. Further, the assumption that deviant behavior is
qualitatively different from non-deviant behavior also leads
positivists to conclude that deviant behavior is caused by fac-
tors that are themselves outside the norm, and which require
explanation. An example of this approach can be found in the
search for the causes of homosexuality, whereas the existence
of heterosexuality is assumed to be a normal state of affairs and
is rarely subjected to causal analysis. This emphasis on causal-
ity lends a deterministic character to positivist theories that
attributes deviance to factors that are beyond the control of the
individual (Thio, 2007: p. 8). Although contemporary positiv-
ists generally accept the role that free will plays in human be-
havior, they nevertheless still attempt to explain deviant be hav-
ior by attributing it to “causal” factors other than simple choice.
Thus, homosexuality is frequently explained by genetic differ-
ences or attributed to a weak or absent “father figure”. Al-
though more recent work on the causes of homosexuality does
incorporate social learning and choice, this is frequently seen as
threatening by gay rights groups who fear that it will negatively
affect their quest for equal rights.
Two further aspects of the positivist perspective center on the
related arguments that a widely held consensus of values exists
regarding important norms and values, and that the enforcement
of norms promotes social well-being. Positivists argue that the
consensus of values, which develops over time because soci-
ety’s members consistently experience the negative effects of
certain activities, makes it easy to identify deviant behavior
(Rubington & Weinberg, 1999: p. 1). Further, because this con-
sensus of values represents the collective interests of a society,
it is imperative that it be enforced to deter undesirable and/or
socially disruptive behavior. In this respect, the enforcement of
the consensus of values, either formally or informally, serves
the dual functions of preserving a society’s way of life, while at
the same time reinforcing a sense of community among its
members. It must be stressed that the positivist approach does
not give any serious consideration to whether the norms are
actually reasonable or correct. They are accepted as a “given”
and the positivists focus their attention on explaining why de-
viants fail to comply with these objectively defined norms. A
critical analysis of why these norms exist, or whether they are
applied fairly, is left for other theorists to explore.
The Subjectivist-Constructionist Approach to
Defining Deviance
A second sociological approach to defining deviance is ex-
emplified by the often quoted de finition coined by Howard Bec-
ker in his classic work Outsiders: Studies in the Sociology of
Deviance (Becker, 1963). Becker argued that “groups create de-
viance by mak ing rule s… and a pplying those rules to particular
people and labeling them as outsiders (Becker, 1963: p. 7).
Becker further argued that deviance is not inherent in the act of
breaking the rule, but is simply a social construction that is
applied to some people but not to others. Once applied, how-
ever, the label exerts significant effects on the person being
labeled, not the least of which are changes to the labeled per-
son’s self image and public identity (Becker, 1963: p. 7). Thus,
in Becker’s analysis, there can be no deviance until a label is
applied to particular behavior. Since these labels are applied
unevenly to different people and different activities, and be-
cause the labels negatively affect the people who are labeled,
societal definitions of deviance ultimately serve to perpetuate
unequal social control.
Becker’s arguments form the central focus of the subjectiv-
ist-constructionist approach to deviance8. This approach em-
bodies three major assumptions or arguments. The most impor-
tant argument centers on the subjectivist belief that norms and
values are social constructions that have little meaning outside
of a specific context. In other words, deviance is both defined
and experienced subjectively by all people involved, whether as
deviants, observers or labelers (Rubington & Weinberg, 1999).
For example, the intentional killing of another person, although
generally considered deviant in most instances, may vary in
terms of its perceived deviance depending on the specific cir-
cumstances. It would be considered extremely deviant if it oc-
curred during a bank robbery, in which a robber coldly exe-
cuted an elderly customer because she refused to hand over the
cash that she needed to live on for the next week. On the other
hand, if a bank employee or customer drew an illegal handgun
and killed one of the robbers while his back was turned, their
behavior, although potentially illegal, might well be considered
heroic instead of deviant. The difference would depend on how
the participants, and the general public, subjectively interpret
the events. The fact that many people consider theft wrong
would likely affect their assessment of every behavior that
flows from the initial action of robbing the bank. Further, the
fear and anger experienced by the bank employees and custom-
ers would also affect their interpretations of the events, and also
serve to legitimate their reactions. Thus, the bank employees
and customers would likely be viewed with much more sym-
pathy and understanding than the robbers, even though some of
their actions might also be illegal. All of these examples illus-
trate the constructionist contention that the degree of deviance
attributed to a particular behavior depends on the subjective
experiences and interpretations of all people involved in the
A second important aspect of the constructionist perspective
on deviance centers on the argument that deviant status results
from a process of labeling, and that deviant behavior results
from a voluntary decision to engage in behavior that is subse-
quently labeled as deviant (Thio, 2007: p. 10). This argument
directly contradicts the positivist contention that deviance is
intrinsically real. Obviously, if it is simply a label, the negative
reaction will exist only in some people’s minds, and there can-
not be any qualitative difference between deviant and non-
8As in the case of the positivist approach, there are several distinct approa-
ches which can be encompassed under the subjectivist-constructionist um-
brella. For example, the subjectivist arguments in the model are frequently
referred to as the “humanist” approach, whereas the more strictly construc-
tionist positionis integral to the “labeling” approach to deviance. Despite
these differences, however, it will be sufficient for the purposes of this dis-
cussion to synthesize the approach into a single perspective, which will be
referred to as the constructionist approach.
7It must be noted that this argument is far different than arguing that the
harmfulness of an activity is independent of its deviant status. It is quite
ossible for behavior to evoke widespread negative reactions without being
harmful in itself. An excellent example of this paradox can be found in the
attitudes that existed in the south towards interracial marriages prior to de-
Copyright © 2013 SciRes. 3
deviant behavior. Thus, the constructionist perspective is much
less concerned with why people engage in deviant behavior
than it is with why certain behavior is defined as deviant while
other behavior is defined as normal. For constructionists, this
concern breaks down into a consideration of at least three sub-
processes: 1) The creation of behavioral categories that are con-
sidered deviant; 2) The assignment of specific examples of be-
havior into the deviant categories; and 3) the enforcement of
negative sanctions against some perpetuators of the behavior
that is included in the categories.
This entire process is complicated by the constructionist ar-
gument that there is much less consensus about which activities
are deviant than the positivists imply. Thus, the first problem in
constructing a definition of deviance would be to reach agree-
ment on which categories of behavior should be considered
deviant. Further, even when there is general agreement that a
particular category of behavior is deviant, the operationalization
of the categories is still far from clear-cut. For example, if a
society decides that problem-drinking constitutes a type of de-
viant behavior, it is still possible that the actual definition of
problem-drinking will vary considerably among different groups
within the society. What might be considered “problem-drink-
ing” by conservative, middle-class church goers, might well be
viewed as normal social drinking by university students, who
customarily consume large amounts of alcohol on weekends
and in the student pub after classes. In this situation, both
groups agree that problem-drinking is deviant, however, they
differ greatly in their definitions of what exactly constitutes
“problem-drinking”. The process becomes even more complex
when we consider the third sub-process, namely the application
of negative sanctions as a result of the deviant behavior. This
can be illustrated by comparing the example of a skid-row al-
coholic, who drinks to excess virtually everyday, with a middle
class business executive, who drinks a comparable amount of
alcohol in the course of a normal business day. In all likelihood,
both individuals are alcoholics9, and the basic activities that
they engage in are similar. However, the skid-row alcoholic is
much more likely to be stigmatized and attract attention from
the police and other agents of social control.
These arguments, when combined with the assertion that de-
viant behavior is voluntary, make it pointless to search for the
causes of deviance. Constructionists argue that the answer is
simple. Deviant behavior is motivated by the same factors that
motivate non-deviant behavior and, ultimately, it occurs be-
cause people choose to engage in it. Thus, the sexual behavior
of heterosexuals, homosexuals and pedophiles is similar insofar
as all are motivated by the desire for sexual pleasure. The fact
that heterosexuality is considered “normal”, homosexuality is
gradually being accepted as an alternate lifestyle, and pedo-
philia is almost universally condemned is irrelevant to the issue
of causation. Constructionists view human beings as rational
actors who choose between different courses of action, based
on their own interests and priorities. As such, they completely
reject the determinism that is implied by the positivists’ search
for the “causes” of behavior. For this reason, constructionist
theories place a much greater emphasis on why certain behavior
is defined as deviant than they do on why people engage in the
behavior. The latter is assumed to be motivated by personal
choice, whereas the former results from a much more complex
set of interactions and negotiations among different groups in
In summarizing this discussion of the positivist and construc-
tionist perspectives, it is important to note that both perspec-
tives agree that normative standards change over time and vary
between cultural groups. As was noted previously, the absolut-
ist sentiments that were once a key part of the positivist per-
spective have been largely replaced by the relativist argument.
However, there is a crucial difference between arguing that
norms and values are relative and arguing that deviance is sim-
ply a label. It seems clear that some types of behavior, such as
murder, rape, armed robbery and drunk driving, pose such se-
rious threats to society that it is difficult to argue successfully
that they are only deviant because someone has labeled them as
such. Clearly, the positivists are correct in their argument that
these activities will evoke negative reactions from most people,
and that the stigma applied to their perpetrators represents a
reasonable bias. At the same time, it is equally clear that many
activities, such as homosexuality, smoking marijuana and wat-
ching pornography, do not po se such clear cut threats and evoke
negative reactions only from some people. These conclusions
bring this discussion back to the point from which it started;
namely how can any society devise an appropriate set of criteria
for defining behavior as deviant and deciding which behavior
should be controlled through legal sanctions? This question
focuses squarely on the implicit contradiction that always exists
between the individual rights and the rights of society in any
democratic society. In order to resolve this contradiction, con-
cepts of human rights must be explicitly integrated into any
model of deviance and social control.
An Integration of Deviance, Human
Rights and Social Control
Any attempt to integrate human rights into a model of devi-
ance and social control must recognize that human diversity is
both normal and desirable, insofar as it adds richness to a soci-
ety’s culture and is a society’s best guarantee of freedom of
choice. Second, it must be recognized that definitions of devi-
ance are irrevocably inter-twined with power, and that elite
groups attempt to control both the definitions of deviance and
the agents of social control to reflect and support their interests.
Finally, it must be recognized that there is a difference between
behavior which is unacceptable and that which is merely unde-
sirable. The difference between these two categories can be
described as a society’s level of tolerance (Stebbins, 1996). In
some societies, all undesirable behavior is prohibited and no
distinction is made between undesirability and unacceptability.
It is argued in this article that not all undesirable behavior is
unacceptable, and that tolerance is a virtue that is particularly
important in multi-ethnic and multi-cultural societies such as
the United States and Canada. Thus, only serious deviant be-
havior that is truly unacceptable should be prohibited, and less
serious forms of deviance should be tolerated or regulated
(Stebbins, 1996; Gomme, 2002).
The intent of this discussion is to outline several criteria that
can be used in deciding whether activities should be considered
deviant and/or prohibited. There are a minimum of three cate-
gories involved in this approach to deviance: 1) Non-deviant
activities that are acceptable to most people; 2) Activities that
are classified as “deviant but tolerable”. Such activities are
considered undesirable but they can be tolerated under most
9In this case, the term “alcoholic” is being used to refer to someone who is
physically and psychologically addicted t o alcohol.
Copyright © 2013 SciRes.
circumstances; and 3) Activities that are classified as “deviant
and intolerable”. Such activities would be considered unac-
ceptable to a society10. It will be argued in this discussion that
only the third category should be made illegal, and then only
when the proposed laws can satisfy the “test of relative useful-
ness”. This approach will also attempt to achieve an ideal trade-
off between the rights of society and the rights of the individual.
In this latter respect, it is important to stress that the concept of
human rights also includes the rights of society. As Meier and
Geis note in their 1997 book, the opposite side of the “crimes
without victims” coin includes the concept of “victims without
crimes” (Meier & Geis, 1997: pp. 4-10). In many instances,
these victims result from the actions of rich and powerful ele-
ments of society, and are not criminalized because their perpe-
trators have sufficient power to prevent their criminalization.
Finally, we are ready to start discussing the actual criteria to
be used in the human rights approach to defining deviance. Of
course, there really is no such thing as an ideal trade-off be-
tween societal and individual rights because someone will al-
ways argue that the criteria fail to include an important aspect
of human interaction. However, it is possible to develop a set of
criteria that avoid some of the biases and weaknesses inherent
in the criminal laws of many societies. Thus, the following
criteria can be considered an ideal definition only insofar as
they attempt to promote tolerance and diversity, while limiting
the influence of elite groups on the definitions of deviance in-
corporated in our criminal law.
Significant Social Harm
In order to be considered deviant, an activity must create a
significant social harm. This criterion may be satisfied if the
activity accomplishes any of the following: 1) causes direct
harm to individual or group; 2) causes an immediate threat to a
society's way of life, or 3) constitutes a threat to the existence
of the human race. The concept of “direct harm to an individual
or group’ is the easiest to operationalize. Clearly, such behav-
iors as theft or assault fit into this category. However, the sec-
ond concept is less easily defined. For example, does homo-
sexuality or prostitution threaten a society whose culture is
based on a heterosexual model of family relationships? Cer-
tainly, many religious scholars and conservative theorists have
argued this point. Although such a threat is logically possible, it
cannot be that “immediate”, since prostitution is the “world’s
oldest profession” and homosexuality has existed since at least
the time of Socrates. Finally, the concept of “a threat to the
existence of the human race” incorporates unbridled aggression
that might lead to a nuclear holocaust or unchecked pollution
that could render the earth uninhabitable. This threat has not
disappeared with the end of the Cold War, and may even be
increasing due to the terrorism that has resulted from religious
and ethnic rivalries in many parts of the world.
Basic Human Rights
All people are entitled to basic human rights to protect their
physical and emotional well being. Physical rights include,
among other things, personal safety and the protection of prop-
erty, and this criterion would consider theft and assault as de-
viant behavior. Emotional rights would guarantee all people
dignity and respect, and attitudes and activities that offend peo-
ple’s dignity and self-respect, such as racism, chauvinism and
homophobia, would be considered deviant.
The protection of physical rights is usually well enshrined in
the laws of most societies, insofar as most soc ietie s have passed
laws against theft, assault, and murder, as well as many other
violent and economic crimes. However, emotional rights are
less well protected, and racist, chauvinist or homophobic activi-
ties are rarely subject to criminal sanctions unless they also
include violence. It is only recently that many western societies
have introduced the concept of “hate crimes” which provide for
harsher penalties in cases where offences were motivated by
intolerance towards certain protected groups. In all other cases,
intolerant attitudes and activities are either ignored or subject to
civil sanctions only. This distinction is important insofar as it
serves to indicate that society places less importance on such
Avoidance of Hypocrisy
Definitions of deviance (and particularly laws) must avoid
hypocrisy and apply equally to all people and similar activities.
Thus, a society should not have one set of rules for whites and
another for non-whites. Similarly, the rules and laws must ap-
ply equally to all social classes. On a formal basis, most con-
temporary societies enshrine the notion of formal legal equality
in their constitutions. However, this guarantee of equality be-
fore the law frequently constitutes a legal fiction because the
application of the laws is biased by factors such as race, gender
and social class. Without getting too deep into clichés, the case
of O. J. Simpson provides an excellent example of these phe-
nomena. Although Simpson was charged with the murder of his
wife and her male friend, Simpson was acquitted of the charges
because his great wealth enabled him to assemble a “dream
team” composed of the top criminal lawyers in the United
States. In this case, Simpson’s social class was more important
than his racial status as an African American. Considering the
evidence weighed against him, it seems very clear that Simpson
would have been convicted if he had been a “poor black man”
rather than a rich one.
Another area in which the laws discriminate involves situa-
tions in which similar activities are treated differently. For ex-
ample, it is legal for adults to consume alcohol as long as cer-
tain restriction on age and location are met. Marijuana, on the
other hand, is generally illegal despite the fact that they are both
psychoactive drugs, and most researchers would agree that
alcohol is the more dangerous of the two. This distinction
seems illogical and significantly affects the way in which users
of the two drugs are treated. Further, the hypocrisy represented
by such unequal treatment also promotes disrespect for the law
that extends beyond the specific activities that are subjected to
unequal treatment.
Social Divers i ty
10It should be noted that other socio-legal theorists would add additional ca-
tegories to this typology. For example, Hagan adds the category of “social
diversions” and distinguishes between “consensus” and “conflict” crimes.
Criminologists also commonly use a typology that includes “deviant and
criminal”, “deviant but not criminal”, “criminal but not deviant” and “nei-
ther deviant nor criminal”
an, 1977
Definitions of deviance and the laws should allow for maxi-
mum individuality and promote social diversity. Unless an ac-
tivity constitutes a significant social harm, no activity or be-
havior should be proscribed simply because it offends the moral
Copyright © 2013 SciRes. 5
Copyright © 2013 SciRes.
sensibilities of other people. Activities such as prostitution and
homosexuality have been stigmatized and frequently subjected
to harsh penalties because they were deemed immoral. Such a
state of affairs imposes the moral values of dominant groups on
other groups, and thus seriously infringes on the basic human
rights of the subordinate group. This is particularly true in
multi-cultural societies such as the United States and Canada,
which incorporate many different ethnic cultures in their popu-
lations. It also ap plies to other groups such a s homosexuals, who
have long argued that they are denied basic human rights that
the heterosexual majority enjoys as a matter of course.
The Test of Relative Usefulness
This final criterion relates more specifically to the question
of formal social control, and is perhaps the most important of
all the criteria. Criminal Laws must pass the test of relative use-
fulness which asks three questions:
Will the law be effective?
Will the law create undesirable side-effects?
Can the problem be handled through other means?
Thus, even in cases where an activity meets all of the other
criteria for deviance, it should not be prohibited by criminal
laws unless it is clear that such laws will be effective and will
not cause other undesirable side-effects. Further, the criminal
law should only be used as a last resort, in cases where other
means of handling the problem are not feasible. The issue of
drug use can be used to exemplify these criteria. Many legal
analysts have argued that the laws against drug use and traf-
ficking are almost completely ineffective, while also resulting
in official corruption and the growth of organized crime. At the
same time, research on drug use indicates that education and
treatment are far more effective ways of discouraging drug use
(Gray, 2001).
In concluding this introduction to the topic of deviance, it is
important to reiterate several important considerations. First,
deviance is a relative concept that is rooted in the core values of
a society. For this reason, it is impossible to outline a set of
definitive criteria that will adequately apply to all societies.
Any attempt to develop a prescriptive definition of deviance,
whether it is liberal or conservative, will ultimately tread too
close to the absolutist sentiments embedded in early positivist
approaches. For this reason, the criteria outlined above are in-
tended as a “methodology” for integrating human rights consi-
derations into the social control process, while allowing the
exact definition of deviance to be socially constructed within a
particular society. For example, although social harm is a nec-
essary aspect of deviance, the exact definition of social harm,
and the specific activities that constitute social harm, will vary
from society to society. Thus, it is entirely possible that the
more liberal approaches towards drugs and pornography em-
ployed in Holland may not work in the United States and Can-
ada; or that consensual homosexuality might disrupt the social
order of small-scale, traditional societies. It is important to un-
derstand that societies are enormously complex and that a sin-
gle “one size fits all” approach to deviance will not work across
diverse societies. It is also important that the criteria used to
define deviance be flexible to accommodate the fact that soci-
ety’s core values change over time11. Ultimately, social control
represents the outcome of social, cultural and political negotia-
tions, and legal and political decisions should reflect, and
sometimes lead, public opinion. In this respect, the current de-
bate over same-sex marriages in the United States illustrates
both processes. I n some cases, court decisions appear to be lead -
ing public opinion by legalizing same-sex marriage in areas
where such actions are unpopular. In other cases, “grassroots”
propositions are placed before the voters in an attempt to have
the law reflect public opinion by limiting marriage to unions
between opposite sex couples. At present, this debate is far
from settled and it is unclear how the definition of marriage
will evolve.
Becker, H. (1963). Outsiders: Studies in the sociology of deviance.
New York: Free Press.
Gomme, I. M. (200 2 ). The shadow line: Deviance and crime in Canada.
(3rd ed.). Toronto: Nelson.
Goode, E. (1997). Deviant behavior (5th ed.). Englewood Cliffs, NJ:
Gray, J. P. (2001). Why our drug laws have failed and what we can do
about it: A judicial indictment of the war on drugs. Philadelphia, PA:
Temple University Press.
Hagan, J. (1977). Disreputable pleasures. Toronto: McGraw-Hill Ryer-
Halpern v. Canada (AG) (2003). 65 Ontario Reports 161.
Jacobs, B. (2002). Investigating deviance: An anthology. Los Angeles,
CA: Roxbury Publishing Company.
Lawrence v. Texas (2003). 539 United State s Reports 558.
Meier, R., & Geis, G. (1997). Victimless crimes? Prostitution, drugs, ho-
mosexuality, abortion. Los Angeles, CA: Roxbury Publishing Com-
Merton, R. (1971). Social problems and sociological theory. In R. Mer-
ton, & R. Nesbitt (Eds.), Contemporary social problems (3rd ed.).
New York: Harcourt Brace Jovanov i c h .
Parsons, T. (1951). The social system. New York: The Free Press.
Rubington, E., & Weinberg, M. (1999). Deviance: The interactionist
perspective. Needham Heights, MA: Allyn & Bacon.
Stebbins, L. (1996). Tolerable differences. Toronto: McGraw-Hill.
Thio, A. (2007). Deviant behavior. Boston, MA: Allyn & Bacon.
11The 2003 Lawrence decision by the United States Supreme Court affirm-
ing gay rights (Lawrence v. Texas, 2003), and the decision by the Canadian
government to respect a 2003 Ontario Court of Appeal decision that exclud-
ing same-sex marriages violated s. 15(1) of the Canadi an Charter of Rights
and Freedoms (Halpern v. Canada, 2003), both attest to the manner in which
legal decisions interact with political processes to reflect, and sometimes
lead, public opinion.