One of the first issues in properly understanding what crimes of the powerful are, is the difficulty in defining crimes of the powerful. White-collar crimes for example, have created debates between criminologists for decades. Sutherland, a prominent American sociologist, was the first to elaborate a definition of white-collar crimes. At that time, he defined them as crimes “committed by a person of respectability and high social status in the course of his occupation” (Sutherland, 1983:7). This first attempt in explaining white-collar crimes is particularly focussed on the context in which those illegal actions took place, without being too specific about the crimes committed, making the definition still applicable nowadays. Nevertheless, by missing out to be more specific on the different crimes included in the notion, the sociologist makes white-collar crime an umbrella term, which was highly criticized by others.
In fact, Sutherland’s definition of a white-collar criminal was later highly criticized by the professor in criminology, Paul Tappan. In Tappan’s own words, such an individual might be “a boor, a sinner, a moral leper, or the devil incarnate, but he does not become a criminal through sociological name-calling unless politically constituted authority says it” (Tappan, 1947:101). For Tappan, the word crime was not meant to be used for activities that were not inexorably transgressing criminal laws, thus accusing Sutherland of misinterpreting the notion of white-collar crimes in defining the term too vaguely. The difficulty in finding a universal definition for white-collar crimes underlines the complexity in identifying what exactly crimes of the powerful are.
In addition, by defining individuals who some might see as criminals in such manners, Tappan decriminalizes them and legalizes activities, which in some cases should be considered as illegal and punished by the criminal law. This raises the questions as of when an activity should be considered as legal, illegal or even as criminal, as well as what crimes should be included in white-collar crime. Some professional activities are unauthorised by criminal laws but are not considered as real crimes, consequently giving them an ambiguous status. Tax avoidance for example, is an unauthorised but not illegal activity committed by the powerful, which still seems to pass through criminal laws (McBarnet, 1988 cited in Croall 2011). Individuals involved in such activities will typically use methods that are legal, thus avoiding prosecutions but inflict terrible harm to the economy and some public institutions. According to an article in the Independent, “tax avoidance has cost the UK economy more than £12.8 billion in five years” (Buchan, 2017). The money lost with tax avoidance would have been used to create new hospitals and public schools. Consequently, should activities, which are morally wrong and causing harm to others, such as tax avoidance for example, be considered as proper crimes instead of simple wrongdoings? This question engendered many discussions. Such a debate over the legal, illegal and even criminal nature of crime causes much difficulty in trying to identify white-collar crimes and furthermore in trying to punish them.
Moreover, the history of the notion of white-collar crimes resulted in the making of different definitions and categories of crimes of the powerful which are very similar, such as corporate crimes for instance. Although often seen as identical to white-collar crimes, they are in fact slightly different. A white-collar crime involves an individual or a group of individuals with the intention of benefitting themselves. Whereas a corporate crime involves an individual, or group of individuals acting on behalf of the business. Braithwaite, Pearce and Thombs classify these crimes as “the conduct of a corporation, or of employees acting on behalf of a corporation, which is proscribed and punishable by law” (Braithwaite, 1984:6) and “illegal acts or omissions punishable by the […] criminal law, which are a result of deliberate decision-making or culpable negligence within a legitimate or formal organisation” (Pearce and Tombs, 1998:107). Those minor differences once more tend to obfuscate the understanding of crimes of the powerful by increasing the difficulty in understanding the true proportions of crimes of the powerful and will redouble the difficulty of identifying and punishing these crimes.
As outlined above, there are many issues in understanding and identifying crimes of the powerful. The difficulty in defining white-collar crimes, the narrow borderline between legality, illegality and criminality or the minor differences between corporate crime and white-collar crime are some of those issues. However, there are other major obstacles when trying to punish crimes of the powerful, which make it easier for the criminal justice to focus on crimes of the powerless.
One of the obstacles is victimisation. Crimes of the powerful are often labelled as “complainantless crimes” (Maguire et. al, 2002:860). In comparison with the case of a robbery in street crimes, where the robbed individual identifies as a victim and confronts the offender in front of the justice, the individuals harmed as a result of crimes of the powerful cannot be considered as reliable witnesses in court for the simple reason that most of them are not aware of the risks they are put in and do not know they are victims. The scandal of the presence of harmful chemicals in feminine hygiene products is a perfect example of health and safety violations where the victims were not aware of the danger. Dearden in her article, explained how the trace of dioxins and insecticides were found in those (Dearden, 2017).