I grow increasingly weary – and wary - of calls for yet more regulation of personal behaviour. What worries me most is that too often these calls come, not from politicians but from people outside the political world faced with something they can’t control. It may not be major crime – often the simple presence of young people on the street is enough for the call to go out:
“They should do something”
From such calls we get ASBOs – young people placed under curfew, prevented from visiting friends, prevented from visiting certain streets, prevented from wearing headgear. Their behaviour breaks no laws – it just makes people uncomfortable.
Even at its best the ASBO represents a two-fold surrender. Having surrendered control of their local area to those causing the disruption, local residents in calling for ASBOs also surrender any chance of taking things in hand for themselves. They wash their hands of their responsibilities and open the door to ever more intrusive government intervention. We don’t yet have a police state, but government has given itself – with the tacit approval of large sectors of the country – police state powers.
The controls on behaviour imposed by ASBOs can be extraordinary.
- In 2004 an application was made in Manchester for an ASBO on a female prostitute. It was alleged she was causing a nuisance in Manchester by accosting men and generally causing offence. The Magistrates agreed to an ASBO. One of its conditions was that she was prohibited from carrying condoms within the given area. Unfortunately her drug clinic was within the restricted area and one of the services it provided was the provision of free condoms as part of its harm-reduction strategy. She breached the order, was put on probation and faces the possibility of prison.
- In 2004 an 18-year-old youth was made the subject of an ASBO in the same city with a condition not to congregate with three or more other youths. He was subsequently arrested for breach of his order when he was entering a local youth club on the grounds that there were more than three youths in the premises. This was a successful club with a good reputation providing a valuable service to young people locally, and on the particular evening the session scheduled for the youths was how to deal with anti-social behaviour.
- A 13-year-old was served an order banning him from using the word ‘grass’ anywhere in England and Wales.
- Thought to be the oldest recipient of an order, an 87-year-old was among other things been forbidden from being sarcastic to his neighbours. He was found guilty of breaking the terms of his order on three separate occasions. On sentencing, the judge made it clear that ‘there would be no prison for an 88 year old man’.
What really worries me is these interventions by the state are so unthinkingly accepted by so many people. It worries me because in this case the cheap and nasty populism of Blair so easily merges with the latent impulse to tell others what to do that seems so strong in the UK and even in that supposed bastion of individualism, the US. Of course in the US this isn’t expressed through the state but via privatised residential governance.
- In Fort Lauderdale, Florida, condominium managers ordered a couple to stop entering and leaving their unit through their back door, claiming that they wer wearing an unsightly path in the lawn by taking a short cut to the parking lot. The couple retained an attorney who filed a lawsuit seeking a court’s permission for the couple to use their own back door.
- In Boca Raton, Florida, an association cited a home owner and took her to court because her dog weighed more than 30m pounds, a violation of association rules. A court-ordered weighing ceremony was inconclusive, with the scales hovering just under and just over the limit.
- In Delaware County, Pennsylvania, a man put up a four feet high fence of black fabric to keep his young son from falling off a four hundred foot cliff. His homeowner association took him to court contending that he had violated a rule against fences, but a judge ruled in his favour.
I have already linked to this story:
- On a June day in 1991, Helen Garrett spotted a notice above the mailboxes at her Santa Ana, California condominium. The notice accused Garrett, a 51-year-old financial consultant and grandmother, of "parking in [a] circular driveway ... kissing and doing bad things for over one hour." Her condominium association, which posted the notice, promised to fine her if it caught her doing "bad things" in the future.
Garrett was furious. Her kiss with "a very respected businessman" was brief. People began calling her "hot lips," she said, and asked her what bad things she was doing. The story quickly became national news, appearing in the Los Angeles Times and USA Today. Garrett hired a high-profile attorney. She threatened to sue for defamation and emotional distress, and demanded a public apology. She received it only when the association learned the "violator" was not Garrett but a 17-year-old girl and her boyfriend.
It appears from McKenzie’s book Privatopia, linked to above, that the association went even further and took a naming and shaming approach reminiscent of some ASBOs, distributing the notices around the development!
The most egregious example I think, is that of woman who bought a stone farmhouse in Bucks County, Pennsylvania. Six years later a development was completed next to her property. Two years after that a resident discovered that the woman’s land was within the borders of the development and the association began pressing her for membership dues. She refused and ended up in court where a judge ordered her to pay $2000 in fees and late charges. The association then obtained a lien on her house and tried to sell two of her cars and a lawn mower. When there were no takers, the association had to pay towing fees on the cars, but according to the association president the important thing was upholding the principle…
Both ASBOs and the excesses of the community associations described above have their roots in a failure of the traditional community. In the past when the law failed, rough justice was sometimes delivered through a process variously called charivari, skimmerton or skimmerton rides, riding the stang, rough music and many other regional variations. These processes were common across Europe and also spread to North America.
In basic form, it consisted of putting a person whose behaviour was not socially acceptable on a horse, donkey or cart, facing the tail, and parading them through the streets. If it was a couple they were place back to back. Sometimes an effigy was used, and sometimes burnt. Normally the procession was accompanied by "rough music", made by beating domestic items like frying pans, kettles, saucepans & pokers, supplemented by musical instruments. Sometimes the participants wore horns or masks. Normally the rides began and ended at the house of the miscreant, after a parade through the community, which could take in more than one parish. There were also rhymes to accompany the procession, which varied from place to place. Animal horns, a symbol of cuckoldry was sometimes included.
The process of naming and shaming associated with ASBOs and used in the Garrett case above may appear similar, but has one important difference in that there is no community sentiment involved, only petty authoritarianism.
Of course another term for skimmerton rides could be kangaroo court an epithet that might well be applied to some of the decisions of community associations too. The problem is - if you can’t trust the state and you can’t trust your neighbours, what can you do?