Tourism and sentencing: Establishing informal status privileges

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InternationalJournal of the

Sociology of LawInternational Journal of the Sociology of Law

35 (2007) 63–74

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Tourism and sentencing: Establishinginformal status privileges

Nick Johns�

School of Law and Social Science, Faculty of Social Science and Business, University of Plymouth,

20 Portland Villas, Drake Circus, Plymouth PL4 8AA, UK

Abstract

This article follows a recent international case where tourism has influenced a criminal trial and its

outcome. In order to assess the real impact of this development it draws upon the conceptual

frameworks that have informed sentencing to establish best fit with existing theories. Furthermore, it

compares this informal development in sentencing with recent legislation in the UK (and more

established provision in the United States) designed to outlaw hate crimes. From this it is possible to

see that certain countries reliant on tourism are offering tourists what might be termed ‘status

privileges’ (a concept borrowed and adapted from the hate crime literature), which serves to distort

justice and lays the foundations for a two-tier system that can only lead to inferior protection for

indigenous people.

r 2007 Elsevier Ltd. All rights reserved.

1. Introduction

This is written at an apposite time, as the British government have been accused,through the operation of the Foreign and Commonwealth Office, of representing murderrates against British tourists in Thailand as less significant than perhaps their incidencerequires (accepting the small ratio of victims to visitors). Nine Britons have been murderedin Thailand in the past 18 months, a fact that was placed in a low profile position on theForeign and Commonwealth Office website. According to an article in the Daily Mail thiswas to reduce the impact of the statistics, and only came to light through emails obtained

see front matter r 2007 Elsevier Ltd. All rights reserved.

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ARTICLE IN PRESSN. Johns / International Journal of the Sociology of Law 35 (2007) 63–7464

by the BBC under the Freedom of Information Act. Nevertheless, a spokes-person maintained that ‘Travel advice is not influenced by commercial decisions’ (TheDaily Mail, 2006).The widespread media scepticism that emerged in the wake of such denials to some

extent supports the principal contention in this paper, which is that tourism is a significantpublic policy priority for countries that rely on it as a large component of their grossnational product, but also for countries, that, in one way or another, support them. This ismore likely to be about economics than tourism per se, but the general point remains valid.From the specific example presented here, sentencing and its outcome as a feature of

public policy is influenced by potential impacts on the tourist industry. The reasons for thisare apparent; since the murder of Katherine Horton on New Year’s Day (discussed indetail below), arrivals on the Island of Koh Samui have fallen by 30% and British visitorshave dropped by a third (The Sunday Times, 2006).In trying to illustrate the extent and nature of this problem, because it is a problem, for

individuals, societies and due to the subject matter, a global problem also, the paper setsout to explain the implicit rationale(s) for sentencing practice that are being adopted. Itwill be argued that though the perception might be that individuals are receiving their ‘justdeserts’, the primary motive is economic with reductivist threads woven around it. Theambiguity of sentencing theory as it relates to practice is consequently underlined.Essentially, the conceptual discussion revolves around developing a comparison between

the explicit way in which anti-hate measures create a tiered system of justice and theimplicit impact of tourist considerations; while many dispute the legitimacy of anti-hatelegislation, the rationale for it is at least subject to clear criteria and open to challenge.Tourism is at certain times and in certain places serving to distort justice for both suspectsand victims, potentially leaving tourists at risk from unidentified offenders and indigenouspeople with inadequate, or at least, by definition, second class legal protection.

1.1. An illustrative case

Tourism plays a major part in the public policy priorities of many modern societies.Note the response of the Egyptian government to the Luxor massacre in 1998 which killed58 tourists along with 4 Egyptians. Additional security measures and specialist police unitswere immediately introduced (Barker, 1998). Specialist tourist policing has been in place incertain parts of the world, notably Thailand, since the 1980s (Cohen, 1987).Despite the generalised claim by Inciardi (1976) that criminals may target tourists

because of the likelihood of escaping conviction, it is apparent that tourism does impactupon sentencing practices in some cases. Cohen (1986) found that Israeli judges oftenstated that rape cases involving tourists should be sentenced more harshly, even thoughthere was no evidence that this translated into practice. There are speculative examples inwhich protecting tourism may have had a part, in more recent times the Falconio murderin the Australian outback in 2001 (Maynard, 2005), but we do not have to venture far toreveal more obvious examples. The murder of Katherine Horton on New Year’s Day 2006by two Thai fishermen undoubtedly provides the best illustration of this phenomenon.Katherine was walking along the beach of Koh Samui talking to her Mother on the

phone when two men, Wichai Somkhaoyai and Bualoi Posit, attacked her with a stick,brutally raped her and then dragged her out into the sea to drown. The investigation wascompleted within 9 days of the murder and the trial itself lasted just 45min—often murder

ARTICLE IN PRESSN. Johns / International Journal of the Sociology of Law 35 (2007) 63–74 65

trials take up to 2 years in Thailand. They admitted murder, were denounced by the crewof their fishing boat and were faced with damning DNA evidence (Gill, 2006). They weresentenced to death despite having co-operated with the police and pleading guilty and thepresiding Judge argued that this was due to the callous way in which they drownedKatherine (Syson, 2006).

An appeal was launched because the usual sentence would have been life imprisonmentas a result of the co-operation offered by the defendants and the confessions theysubmitted. Just as the trial was fast-tracked so too the appeal was scheduled to last over amonth as opposed to a year in normal circumstances (Daily Post, 2006).

Doubts have been expressed about the manner in which the investigation was carriedout, particularly relating to the DNA evidence (Drummond, 2006), and similar concernshave been expressed about the conduct of the trial and the sentence itself. In fast-trackingthe case the former President (since removed by virtue of a military coup) made referenceto the need to revive the tourist industry in the wake of the Tsunami in 2004, and the JudgeJamnong explicitly said: ‘This case was detrimental to Thailand’s reputation. The crime that

these two committed was against a foreigner who came to Thailand as a tourist, which affects

the economy of the country’ (Berger, 2006, p. 7). Therefore, the role of tourism in theoutcome of this case is beyond question, and with this in mind we now need to explore thetheoretical background to such cases through the application of conventional sentencingtheory.

1.2. Tourism and sentencing theory

In order to understand these issues more fully it is important to set out the theoreticaljustifications for sentencing tourist related crimes in the way set out in the example above.Essentially, there are two possible theoretical traditions that are applicable here:retributivism and reductivism (Bagaric, 2001; Walker, 1972). Retibutivism is morecommonly related to ‘just deserts’. It has a long tradition and can be identified in its mostsimplistic form in the Bible reflected in the principle of lex talionis, or an ‘eye for an eye,and a tooth for a tooth’; though in its current form it actually emerges out of the Germanidealist tradition of moral philosophy; it is consistent with Kantian categorical imperatives(Easton and Piper, 2005). From a sociological point of view we arguably find the strongestsupport for retributivism in the work of Emile Durkheim.

It is a backward looking principle and relates to the offence and not the offender,emphasising the importance of marrying severity of sentence with that of the originalcrime. No-one should receive more punishment than their offence merits. From thisperspective the purpose of sentencing is to ensure that justice is done, and there is no otherobjective (though there are various strains of retributvism, we are not concerned with thislevel of detail here. See Bagaric, 2001: Ch. 4; Easton and Piper, 2005).

While it might be argued that both policy-makers and the judiciary were dispensingjustice in line with this principle, it is apparent that this is not the case. If just deserts werethe guiding principle then the offenders would have received the mandatory life sentencethey were entitled to having co-operated and entered a guilty plea. Clearly justice had to beseen to be done in the most severe and vivid fashion.

Ultimately then, it is evident that the best means of explaining the outcome in this case isutilitarian. However, it is not as clear cut as it might be, because this has implicationsbeyond conventional sentencing theory which will become clear as we proceed. First it is


necessary to underline the aspects of conventional theory that help to explain the trialoutcomes which are, to some extent, informed by tourism. The utilitarian theoryapplicable here is often known as reductivism and it is theoretically placed at the polar endof the sentencing theory continuum from retributivism. It is predictably consequentialistand is therefore forward looking. The purpose of sentencing is to reduce offending in thefuture, and in this respect it is preventative.It is utilitarian or consequentialist because it is focuses on the consequences of

moral action, and is driven by the greatest happiness principle. This will be servedby reducing the risk of offending for the general population, thus making the majorityof people safer and presumably happier (Easton and Piper, 2005). However, there areother elements to this and they emerge in the different means available for reducingoffending.One such means is to reduce offending by reforming the offender. If the mental or

physical circumstances that led an individual into offending behaviour can be altered thenit stands to reason that they will not commit any further crimes (in theory). But this alsohas another potential impact on the overall level of happiness in society, it aims to reformthe offender so that they become productive citizens, thereby increasing wealth andharmony (Cavadino and Dignan, 2002). Reform or rehabilitation as a justification forpunishment has been questioned, and the degree of success appears to depend on theoffender and the nature of their offending (Bagaric, 2001). However, the efficacy of thisjustification is irrelevant for our purposes because this clearly was not the objective of thesentence imposed.This leaves us with the notions of deterrence and incapacitation. I would argue that in

relation to tourist-influenced sentencing, and the case cited above, these can be combinedto explain the type and manner of the imposed sanctions. On the one hand tourists can bereassured that a strong message has been sent out to the domestic population that themurder of tourists will be dealt with most severely. Though we have to refine this byrecognising that, certainly in the case of the Thai fishermen, the intent is generaldeterrence. In passing sentence Judge Chamnong Sutchaimai said that it was designed: ‘To

prevent others from committing similar acts, the court rules that the two defendants be

sentenced to death’ (Savage, 2006, p. 18). Clearly the death penalty removes any prospect ofindividual deterrence.On the other hand there are incapacitative elements, and despite reservations by key

commentators (Cavadino and Dignan, 2002) the death penalty might be regarded as themost successful means of reducing crime in individual cases, assuming the rightperpetrators were convicted. As far as society is concerned the individuals responsibleare out of operation and everyone correspondingly safer. As per the evidence relating todeterrence and reform, there is no incontrovertible evidence of the success ofincapacitation, our predictive ability concerning the behaviour of offending individualsis limited and where this is so the death penalty looks more like general deterrence thanincapacitation, though again the evidence of efficacy in this context is contested. Howeverthe notion of incapacitation continues to receive strong support in some quarters (Lawson,2005; Murray, 2005).From this the two sides put together do seem to have a great deal of explanatory power.

Tourists can be assured not only that the perpetrators are unable to carry out furthercrimes but that potential offenders in the domestic populace will think again beforecommitting similar offences. That there have been nine murders of British tourists in


Thailand over the past 18 months might indicate that the offence of the two Thai fishermenwas the sentencing equivalent of ‘the final straw’.

Having set out an explanation employing the conventional tools of sentencing theory, itis now necessary to explore some of the ambiguities of those theories and in particular thespace between them that is possibly defined by the individual perceptions and motivationsof policy makers and those responsible for dispensing justice.

1.3. Ambiguities of sentencing theory

One of the problems associated with sentencing theory and indeed any theory is theslippage between the written or expressed account and their applicability in the real world.Of course, theory is vital for making sense of the everyday world and it is imperative thatwe derive our understanding from developed and tested theories (Jordan, 2004).Nevertheless, it is apparent that as accounts of the real world theory can only ever bean approximation.

Furthermore, applying theory can sometimes be even more problematic where evidenceis used across national boundaries. Not only are there differences in institutionalframeworks to negotiate (Mawby, 1990), but there are cultural and often lingual factorsalso (Bayley, 1976). Furthermore, there are always ‘insider’ and ‘outsider’ issues that haveto be addressed. Does an outsider bring a fresh perspective or can they never fullyunderstand a setting outside their own? (Clinard, 1978; Balvig, 1988).

While the problems of comparative work are manifold, most would see the advantagesoutweighing the disadvantages. It allows quasi-experimentation and the ability toscrutinise the home environment (Downes, 1988), with the added bonus of potentialpolicy-learning (Bayley, 1994). It must be accepted by the author though, that this paperreally fits into a tradition whereby comments are made about international issues througha domestic lens (see Clifford, 1976; Hess, 1970). Although the paper is focused on tourismand therefore the international scene, it is necessary to provide some examples from theBritish policy framework for the sake of familiarity and accuracy.

Without providing a potted history of the development of British sentencing policy,which cannot reasonably be achieved here, most authors acknowledge that until 1991British sentencing was largely left to the discretion of judges and magistrates (Bagaric,2001; Cavadino and Dignan, 2002), there was no coherent philosophical direction offeredby the executive (Walker and Padfield, 1996).

With the passage of the Criminal Justice Act 1991 the Conservative administrationimposed a broadly retributivist philosophy, informed by the need for consistency insentencing, proportionality between offence and sentence and a desire to reduce thenumbers of offenders incarcerated. This also refined the way in which community penaltieswere understood, from simple alternatives to custody to actual punishments applied in thecommunity. However, though in theory the legislation was underpinned predominantly byjust deserts, it was not quite as pure in policy terms as modern retributivists such as vonHirsch (1986) would have wished.

At one level there was deviation in relation to the sentencing of violent and sexualoffenders (Walker and Padfield, 1996). For them sentences were available that were notproportionate. This was partly due to the fear that the government would look weak onlaw and order issues. As Ashworth (1995: 84) explains ‘yit is evident that the need to

analyse sentencing from the point of view of philosophy and principle often gives way in


practice to stronger political and pragmatic pressures’. But the Act also provided that oncethe seriousness measure had been applied for community sentences, that the offence shouldbe ‘serious enough’ to warrant that penalty, the judge retained some discretion over thelength of sentence and the purpose of that sentence, which might be deterrence, reparationor, more likely, rehabilitation (Easton and Piper, 2005).Similarly, the more recent Criminal Justice Act 2003 retained the just deserts approach

by leaving the basic framework in place but also has reductivist strands. For example, inlaunching the Act the then Home Secretary David Blunkett argued that it was necessary totailor sentences to offenders rather than the offence, which is clearly a reductivistapproach. Moreover, it also contained a provision which ensured that an individual finedfor a third time would automatically receive a community penalty, even where the offencewas considered insufficiently serious in itself to justify one. Hence it is apparent that thereis no purity in the application of sentencing theory, and this can emerge as a deliberateresponse to public pressure and/or demonstrate muddled thinking.The relevance for this paper is that even where the sentencing is informed by theory

it is not applied exactly or without dilution (Bagaric, 2001). Partly this is related tothe formal acceptance of ‘intuitionism’ in sentencing practice that outmoded branch ofmoral philosophy which has been taken as a template for judicial action. This under-pins the basic arguments for judicial discretion as set out by Hunt (1997, cited in Bagaric,2001, p. 14):

ysentencing is largely an intuitive process. That process does not lend itself to theapplication of rigid formulas. The influences of the different factors to be taken intoaccount in each case are infinitely variousy The more unnecessarily analytical thejudge becomes, the greater the room for attack upon the sentence on appeal.

This is a point echoed by other commentators (Walker and Padfield, 1996; Walker,1991; Thomas, 1979) the aims of sentences are often left ambiguous because of thedifficulties in unravelling and justifying them. ‘Consequently the sentencing philosophy ofEnglish courts is best described as ‘eclectic’’ (Walker and Padfield, 1996, p. 109). This verymuch reflects the outcomes of our illustrative case, unless of course a form of Orwelliandoublethink is operating.It is evident that the former Thai President in intervening projected, at least in part, a

just deserts rationalisation of his actions. To put it simply it was presented as a life-for-a-life decision. However, it could not really be about just deserts because the death penaltyadministered at the discretion of the then President contravened the Thai legal process.The defendants in pleading guilty, as stated earlier, ought to have received a mandatory lifesentence, and the fact that they did not only underlines the analysis above that thejustification must be reductivist, at least in as far as conventional theory helps us tounderstand.As set out here though, it does not take into account the space which exists between the

clearly delineated theories for individual factors to determine how those theories areoperationalised in practice. This needs to be explored in more detail, a task that cannot beaccomplished here, and indeed need not because there is another layer of analysis that hasto be addressed before we can go on to consider how the outcomes of tourism-influencedsentencing can be better understood.


1.4. Functional realities: moving beyond sentencing theory

Conventional theories and some recognition of individual factors can take us so far inexplaining the way in which tourism has influenced certain cases, however, underlying allof these alternatives is another materialistic layer that is utilitarian but which is not reallyabout sentencing theory at all (Jenness, 2002). In fact it arguably eradicates the importantactors in sentencing theory from the equation. The offender is almost irrelevant, as is thevictim and the victim’s family.

The utility, as discussed above is material and while reductivism is not about justice,because it would be equally acceptable to punish an innocent person if the happiness of themajority could be assured, at least it is associated with sentencing and the criminal justiceprocess. If the sentencing process is being used as a means of protecting the revenue fromtourists then it is reasonable to question even the fundamental basis of utility (where anyjudgement can realistically be made about the extent of happiness in society).

From a theological perspective then it is clear, looking at the Bali bombings, that asection of tourist-reliant societies do not approve of the tourist industry. Of course it is notpossible to measure this accurately as would be required by utilitarian theories, but it doesat least need to be recognised. From a recent economic analysis it is conceivable to arguethat economic prosperity and development does not actually facilitate happiness in thesimplistic way that is often assumed, and that looking at this correlation from a particulardirection economic wealth can generate greater insecurity, alienation and discontent(Layard, 2006).

Building on this and taking a structural, neo-Marxist approach, the bulk of economicwealth is controlled in a capitalist system by a small elite, and therefore, utility as definedhere is a structural veil for the maintenance of material inequalities and the sustenance ofpoverty. When this is layered onto the economic analysis presented above, we can see thatin fact tourism and the wealth it brings is not about making the majority of people happy,as the proceeds rarely filter down to those in real need (even if we were to accept that theachievement of wealth itself is a guarantee of happiness) (Bloom, 1996).

When we reach this point, it is arguably the case that justice in this instance is not evenabout utility, it is about maintaining the status quo and the perceived interests of a smallsection of each society. We have moved very far away from any notion of justice inherentin the conventional sentencing theories as set out above. It is here also that we can close theambiguity in the space between the theories, because the personal perceptions andmotivations appear to be driven by naked economic self-interest. Having attempted toexplain how the theories of sentencing help us to illuminate the outcomes in these cases, itis now necessary to consider the specific injustices inherent in the outcomes themselves.

1.5. Creating status privileges: anti-hate provisions through a post-colonial basement

In order to do this it is necessary to develop a conceptual comparison between tourist-influenced sentencing and a fairly recent development in Britain, but a much moreestablished legal tradition in the United States, that is, measures designed to outlaw so-called hate crimes. We are not interested in earlier activities to prohibit hate speech and theincitement of ‘racial’ hatred, where significant impositions on freedom of speech haveresulted in certain parts of Europe. These are not relevant for our purposes.


The policies we need to explore have been in place since the early 1980s in the US, andhave spread rapidly across the country, to the point where they are now covered by twoFederal provisions offering additional protection to a number of specified groups andcommunities (Anti-Defamation League, 1998). In Britain the process began with the Crimeand Disorder Act 1998 (CDA), which introduced a range of enhanced penalties for raciallyaggravated crime (Iganski, 1999). The anti-hate measures introduced in the CDA 1998,were not subject to the same level of argument that had been provoked in the USA(Iganski, 1999, 2002). Nevertheless, they have since aroused a fairly developed discussionabout their value or otherwise.Religious provisions were added in the Anti-Terrorism, Crime and Security Act 2001,

but the most recent piece of legislation for our purposes, and that which has even moreresonance with tourist-related sentencing, as will become clear below, is the CriminalJustice Act 2003. This came about as a result of a battle between the judiciary and theHome Secretary. Having removed his power to decide on the release dates for the mostdangerous murderers in British prisons, the Act was passed to gain some control over theprocess through legislation. It also included provisions to give public servants, in thecourse of their duties, similar protection to minority ethnic and religious communities.The primary arguments in support of these measures emerge from four distinct

positions, some of which have relevance for tourism-influenced sentencing. First, that theyare necessary from a Durkheimian point of view to create the basis for social harmony(Lawrence, 2002). Penalty enhancements send out a strong message to offenders that theirattitudes and behaviour are abhorrent to society and that the targets of their hatred arevalued as members of that society. While tourists would not be considered members of thesociety or societies in question, their value in economic terms is only too apparent.Secondly, that they provide a deterrent against racially aggravated crime, and this would

arguably have the same speculative effect on crime directed at tourists. Thirdly, that theyencourage the Criminal Justice System to respond to these crimes more effectively;particularly in the wake of the Stephen Lawrence case (Iganski, 1999). Again this would beequally relevant to tourist-related crime.Finally it was argued that hate crimes lead to greater harm to victims, communities and

society as a whole (House of Commons, 1994; Lawrence, 2002; Tatchell, 2002). It has beenargued that with the growth of international travel tourists are subject to particularly highlevels of victimization (Mawby et al., 1999). Furthermore:

Tourists who become victims often face unique issues such as isolation and cultureshock, lack of familiar social support, travel stress, and language barriers. Inaddition, most tourists are not familiar with the laws of the country they are visiting,of the criminal justice, health, and mental health systems they must interact with aftervictimization (OVC, 2001, p. 4).

Therefore, in the framework of justice deserts that still underpins sentencing policy,harsher penalties might be required; and yet all of these objectives have been questioned.Laws have the ability to divide as well as unite and it has been argued that ‘hate’

measures have undermined social solidarity. On the one hand they cause resentmentamongst those implicitly accused of wrong doing (even though the law is framed neutrally),and on the other they create competition between disadvantaged communities (Jacobs andPotter, 1998). Hate laws have been subject to domain expansion on this basis both in the


United States and now in the UK and there are no universally defined limits on whichgroups should be covered, which is specifically relevant here (Jenness, 2002).

As for the other arguments presented above, the evidence that enhanced penalties deterhate crimes is not clear (Iganski, 2002). While the Criminal Justice System may haveresponded differently to cases of racist murder in particular (compare the cases of StephenLawrence with those of Damilola Taylor and Anthony Walker) problems remain asevidenced in a number of official reports (i.e. Denman, 2003) and through the fruits ofinvestigative journalism (BBC’s Secret Policeman). Furthermore, it is not at all clear whatimpact hate measures per se have had on systemic behaviour. Finally, the whole notion ofgreater harm has been questioned by Iganski (2002) who in reviewing the availableevidence suggests that ultimately perpetrators are being punished as a result of societalrevulsion not the greater harm they inflict.

Whether we accept the basis for penalty enhancement on the basis of identity or not(Jacoby, 2002), whether they are effective or not (Burney, 2002), at least there has been adetailed discussion, albeit mostly retrospectively, about their validity, this has not been thecase where the thirty year mandatory sentence for killing a public servant is concernedunder the 2003 Act. Although comment has been made in the media, very little debate hasemerged.

The link between this development and tourist-influenced sentencing is that penaltyenhancements are being delivered on the basis of a fairly arbitrary sense of identity. Otherenhancements are based on aspects of identity that are associated with discrimination and/or disadvantage. One of the arguments for greater protection for public servants has beenthe growth of violence and abuse many of them face in the conduct of their day-to-dayduties. It is likely that a similar justification could be fielded in relation to tourist-relatedcrime. As stated above nine British tourists have been murdered in Thailand over the pasteighteen months. However, the ratio of visitors to victims is small enough to question thisargument.

While there was much criticism of the protection offered to British public servants, atleast it has been adopted formally into law. Tourist-influenced sentencing operatesindependently of policy structures and legislation. It is unclear in its process and theoutcomes are unlikely to be just, considering the theoretical arguments set out above.

Furthermore, it is problematic whether it is effective or not. The likelihood is that it willnot work as the sentencers or policy-makers predict. If, as discussed above, it is based onconventional notions of reductivism then only the incapacitative aspects are guaranteed towork, but then only if the right people are caught and convicted. The deterrentcomponents are more difficult to evaluate, as crime rates are really the only availablemeasure and can be influenced by a large number of factors. What is apparent is that wherepunishments are harshest there is little evidence to suggest that crime rates are reduced(Blumstein, 1994; von Hirsch et al, 1999).

But even if it were to work, there is still something highly problematic about it. What itdoes is to create ‘status privileges’, additional protection to certain groups within society.Even then the protection offered may be illusory, because it divides people into classesaccording to their status in law. By definition those not covered by the additional penaltiesare seen in some quarters as second class citizens. This would be problematic enough wherethe penalties are formal and aimed at domestic populations, and many commentators havepointed to the divisiveness that may result from this. Where global relations are involvedthis becomes even more threatening.


The ‘status privileges’ are of a greater order than those offered under the hate measuresfor two reasons. First, the latter were mainly undertaken to protect oppressed minorities,but actually they are neutrally applied, governed as they are by the norm of sameness—therule that everyone is covered (this incidentally has been cited as central to the limitedimpact these laws have made on the expression of hatred, Jenness, 2002). Tourist-influenced sentencing is not about offering protection to oppressed minorities, butcertainly in the Thai case, it is about further enhancing the position of already advantagedsocial groups, at least that is the impression (arguably as stated above the protection isreally aimed at domestic social, economic and political elites).The second objection really runs from the first, that these status privileges can reflect

global patterns of wealth and historical patterns of oppression. At the domestic levelresearch by Ray and Smith (2002) indicates that the target for hate measures are alienated,poor, young white men and this is reflected implicitly in the international and informalmeasures discussed in this article. The best means of explaining this might be to apply post-colonial theory, however despite the growing literature in this area the whole notion hasbeen the subject of trenchant criticisms (Chun, 2000). Furthermore, it is not entirely clearto what degree tourism-influenced sentencing is the preserve of ‘ex-colonies’ for want of abetter expression (it is likely that tourism influences the dispensation of justice in theaffluent west also). What is vital to stress here is that, in cases like the one outlined above,western tourists are being given additional protection on top of their already advantagedposition relative to the local population, and, in the process, local people are being furtherterrorised and oppressed by their own governments.

2. Conclusion

Sentencing is a fascinating subject in its own right but when the issues are all implicit asthose discussed here it is even more interesting (though depending on one’s perspective,perhaps more disturbing). That tourism influences sentencing in some countries in certaincases is clear from the example of the Thai fisherman, but is also likely to contribute tosentencing in less explicit ways as per the case of the Falconio homicide in Australia.Using conventional theories the most likely explanation for tourist-influenced sentencing

is that the purpose is drawn from reductivism, or more properly, different components ofreductivism. Judging by the characteristics of the case cited, incapacitation and generaldeterrence best reflect the expressed objectives of the sentences passed. Yet the theories arenot unambiguous and there are gaps which prevent us from fielding them with completeconfidence.In the cases set out here, utility is the best means of explaining the application of the

sentence, but it appears that the sentencing is a secondary concern. In fact the mainobjective would seem to be about using sentencing to protect economic interests. Justice isnot simply blind it is invisible. In fact utility itself can be questioned as the motive becauseit is not really about the happiness of the majority at all it is a veil to conceal the specificinterests of the social, economic and political elite.By drawing on the hate measures recently enacted in the UK, it is also possible to

demonstrate that the outcomes of these implicit measures will have quite profoundimplications for indigenous people. In this case it is clear that western tourists are in receiptof status privileges. Ultimately this can only mean second-rate justice for local people, atthe same time as the law may be used as a blunt instrument of repression.


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Tourism and sentencing: Establishing informal status privileges

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