On the Discursive-Material Enactment of Criminal Violence: How Death and Injury Come to Matter to the Criminal Law 1

Abstract

This article seeks to challenge the prevailing view that violence is legally actionable because human bodies are capable of experiencing pain, injury, and death. Drawing on literature in the area of new materialism, this article demonstrates how pain, injury, and death are not ontological properties of the flesh-and-bone body, but rather, they are the effects of how violence is made sense-able, knowable, as part of the criminal legal process. Here, I examine four of the materializing practices through which violence becomes sense-able to us: crime scene photography, forensic pathology, legal judgments, and bodily performance. If the effects of criminal violence can be traced to the discursive practices by which we observe, measure, think, and speak about bodies, it becomes much harder to sustain the view that human violence is exceptional because the human body is special.

I. Introduction

Several years ago, in a postgraduate course for which I was a guest lecturer, we were discussing the legal implications of high-tech industries such as virtual reality and robotics, and I asked my students whether we could expect human–machine interactions to attract criminal legal attention. Namely, did we foresee a future in which violence directed at or inflicted by intelligent machines or avatars in virtual reality—say virtual rape or robotic murder ² —would need to be criminally regulated? As expected, many of my students found the suggestion offensive. They argued that violence against machines, against things, no matter how much they resembled humans, could never compare to an attack against real bodies (i.e., bodies made of flesh and bone). Real bodies “feel pain,” they said; real bodies suffer, real bodies can, and do, die. For my students, it was these properties of the flesh-and-bone body—the capacity to experience pain, injury, and death—that justified the criminalization of violence.

My first thoughts were that pain, injury, and death, as concepts, were not as straightforward as my students were making them out to be. Often their “wrongness” and our desire to limit their presence are context dependent. We have evidence that at least some people find meaning and pleasure in their real or perceived pain and suffering. ³ Some of us see injury as a form of self-expression ⁴ and disagree on precisely what constitutes “injury” in the first place. ⁵ Many of us do not agree on the precise boundaries between life and death; we describe certain types of experiences as a “fate worse than death” ⁶ or a kind of “social death.” ⁷ We cannot even agree on the physical manifestations of death. Is it the cessation of brain activity? Is it organ failure that results in permanent loss to circulatory or respiratory function? Is it an irreversible loss of consciousness, or simply just a loss of awareness? ⁸ And certainly, all of these debates have informed the criminal law in one way or another. So, if the meanings of pain, injury, and death shift based on context and personal experience, how can we think of them as properties of the body? And if they are situated, body-interior processes, how can we be certain that they actually exist in order to justify punishing its perpetrators?

This article draws on a very specific understanding of how pain, injury, and death exist—namely that they are brought into being by the very practices that make them sense-able (and thus intelligible) to us, as embodied entities. In so doing, it shines the spotlight on material arrangements that, in most legal accounts of criminal violence, remain in the background—as passive data interpreted by people who are party to the legal process. Here, however, I show how this data itself moves us; how these material arrangements do not simply imply or evidence pain, injury, and death, but actually constitute it. How they, as Schuppli argues, affectively engage us. ⁹ It is clear then that I follow a materialist tradition that equates meaning with meaning-making ¹⁰ —whereby matter and events have no meaning, no reality, that is separate from the practices through which we study them, know them, explain them. The current research draws on new materialist methodologies, particularly the work of Karen Barad, to address a contemporary social issue. I am aware that there might be some skepticism amongst legal practitioners and theorists (corporeal feminists perhaps being the exception), ¹¹ that the ethics of non-anthropocentricity that is embraced by new materialist and posthumanist theory could be useful for restructuring social institutions that have historically been established for human societies, with “human” interests in mind. This article is then a testament to the idea that it is possible to critique the “human” at the core of these institutions without denying the relevance and significance of its presence.

In the first part of the article, I consider three different discursive-material practices: crime scene photography, forensic pathology, and legal judgments. In the last sense, I do not consider legal judgments in terms of its interpretation of events, but how the words of judges actually visualize criminal violence, bring it into being. I also, in this first section, consider how the lived realities of pain, injury, and death are performed by those who suffer criminal violence. I explain how the victims’ bodies give us a material account of how the effects of violence are borne out in the day-to-day. I analyze how, through these practices, violence is made audible, visible, odoriferous, tangible for the purposes of criminal regulation and argue that it is these practices that give pain, injury, and death tangible form, “being-in-the-world” meaning, as more than just abstract, body-interior, concepts. This “mattering” of pain, injury, and death happens through a number of collaborations between different technologies, techniques, and technologists—pain may be enacted through an interaction between flesh and flash photography in one instance, or in the form of radiographic images of brain processes in another. Each practice gives us a different account of pain’s existence as a temporally and spatially situated thing. Consequently, we cannot describe pain, injury, and death as properties of the body, any body, but rather as discursive-material enactments that arrange the body in relation to other bodies, matter, and ideas so that they become sense-able to the rest of us.

In the second part of the article, I draw on these findings to challenge the idea that the criminal law should not apply to nonhuman violence because nonhuman bodies are incapable of feeling pain and/or experiencing injury and death. I argue that, in making these claims, my students were wrongly mistaking how we come to know the body, for what the body is. I draw specifically on the work of new materialists such as Barad, Braidotti, Haraway, and Mol and their ideas about the materiality of phenomenon, the material arrangement of bodies, and practice and performativity as embodied engagement, to consider how a practice-oriented understanding of pain, injury, and death (pain, injury, and death as socio-material phenomena) can produce a more inclusive, posthuman, understanding of criminal violence.

II. The Discursive-Material Enactment of Criminal Violence

When a body or weapon makes forceful contact with another body, the consequences of that action is felt by the body that is dealt the blow. This body knows what violence is by seeing the knife that perforates its skin, watching the blood leak out of its arm, feeling the physical pain and fear as this happens, and living the (emotional, psychological, physical) changes that come about as a result of this act. This act is real because it is sense-able. But for the rest of us, who are not present in that moment and cannot therefore sense that particular act of violence, we may find it difficult to affirm its presence, confirm its existence. This becomes particularly problematic when we are charged with the task of determining whether an act of violence is legally punishable which, in most common law jurisdictions, requires us to make judgments about whether the violence was harmful. So how does an act of violence, an act that its legal arbiters are never part of, have never physically felt the effects of, come to matter? How does it come to harm?

The reality of criminal violence is based on the extent to which the rest of us can be made to see, touch, smell, and hear it; when it mobilizes our senses and causes us to feel and behave in a particular way. ¹² These materializing practices bring criminal violence into being; they enact it. And our belief in its existence is strengthened, our feelings and behaviors reinforced, when our affective engagement with it is shared by others. As Baerveldt and Voestermans note: “norms are norms not by virtue of their reflective articulation, but precisely because of their affective nature. As affective beings, we are already in a world that makes normative demands on us and others.” ¹³ So the question becomes, what sorts of practices bring criminal violence into being, for us?

Criminal law theorist Joel Feinberg claims that the harmfulness of criminal violence stems from its potential to cause a loss to one’s welfare interests, one’s stake in the well-being of their bodies, of themselves. ¹⁴ In his view, violence is wrongful on the basis that all human beings share an interest in maintaining their own physical health, “the integrity and normal functioning” of our bodies, avoiding disfigurement, the absence of pain and suffering, and avoiding fear and anxiety. For the most part, we have an interest in maintaining our physical health and existence. ¹⁵ But what also becomes quite clear here is that criminal violence must also be sensual. And not just for its victims. The rest of us must be able to affirm violence’s presence by seeing, hearing, smelling, touching its effects—its “disfigurement,” its “pain,” its “fear and anxiety.” On this basis, I argue that the pained, injured, dead body that attracts the criminal law’s attention, what I refer to as the bio-juridical body, ¹⁶ is enacted through discursive arrangements of images, sounds, smells, and tactile stimuli that allow us to visually and aurally confirm the presence of violence. Accordingly, criminal violence and the bio-juridical body are co-constitutive; they are both co-enacted by the investigative, forensic, judicial processes that materialize violence for the purposes of regulating it. But criminal violence also has a “lived reality”; it is performed and materialized by the bodies that endure it. As I will show, sometimes the lived realities of criminal violence may contradict the enactments of forensic pathologists, crime scene photographers, and judges.

1. Crime Scene Photography

The crime scene photo is perhaps the first visual snapshot of the aftermaths of an act of violence. Meant to give investigators and pathologists information about the crime scene, crime scene photos put us face-to-face with battered, oozing, ashen, and immobile bodies ¹⁷ —bodies displayed in contorted, unnatural, and unexpected positions, and often on public display. ¹⁸ Special lighting, particular kinds of lenses, camera flashes, colored filters, techniques of bracketing ¹⁹ operate to make explicit the parts of a scene that matter. Wounds and bruises become pronounced. Bites, tears, terrified and frozen faces are framed, isolated, and enlarged. With richer and more intense colors, sharper and clearer images, these visualizing practices enact criminal violence differently than oral testimony. ²⁰ They show, in a way that language cannot, that bodies rupture, they spill out, they leak into their surroundings in bits and pieces. They show us what happens to bodies when they remain outdoors, exposed to heat, wind, nonhuman animals, oxygen, and water; they show bodies in fragments and in varying states of disintegration. ²¹ It is no surprise then, as indicated by a number of researchers, crime scene photographs have the potential to evoke extreme emotional reactions, and controversially sway jury opinion about the culpability of the individual on trial, and not on the basis of what they show but how they show it. ²²

Crime scene photographs enact violence not only by reference to bodies, but space. They provide visual data about the arrangement of the scene of violence itself. Items haphazardly strewn across rooms, sheets pulled from beds, bodies arranged in unnatural positions enact criminal violence as disordered and chaotic. ²³ Images of blood-spattered walls and bullet fragments scattered across floors bring about a criminal violence that is coercive and forceful and involves struggle. In some instances, it is the space in which violence is shown to have occurred (rather than a violated body) that determines its “criminal” nature. ²⁴

Interestingly, one of the concerns voiced by victim advocates in the United States is that crime scene photographs produce a desubjectified, dehumanized bio-juridical body, and that living photographs of the dead victim should thus be permitted in homicide trials. ²⁵ Interestingly, these claims suggest that, in the context of criminal violence, our understanding of what constitutes death and life comes down to bodily performance; dead bodies are ones that lie there, motionless, often “in portions” and fragments while living bodies are ones that smile, demonstrate emotion, act, and move. And for the jury to recognize the personhood of the now dead victim, the smiling, “living,” photograph becomes key. As one juror explained:

the picture of her dead, her eyes open. That was another shocking thing too. . .You don’t think of these things when you see a dead body on TV or in the movies or whatever. You usually don’t see them with their eyes open, you see them closed. Here is this lifelike looking face, looking at you, but this person is dead. ²⁶

How we know death, therefore, does not relate back to the body’s ontology, but the socio-material practices through which death is represented—as motionless bodies with open eyes—representations that may run counter to the viewers expectations of how dead bodies should behave based on how they might have seen dead bodies act, for example, on television, with their eyes closed. Photographs give a durability and tangibility to violence that even the physical body of the victim cannot sustain because bodies heal, bodies forget, bodies disintegrate and disappear. Our consumption of crime scene photography takes place visually, with our bodies, but in causing us to experience the effects of an act of violence viscerally, emotionally (e.g., as “shock”), it also takes place through our bodies. ²⁷

Crime scene photographs are not merely transcriptions of a reality, a visual encoding of a given, immutable past, but parallel realities. Nagosky explains how one of the evidentiary disadvantages of the digital versus traditional photograph is that it is not accompanied by an “original” or its negative, which can help prove the content of the picture. What he alludes to is the idea that photographs (and the image they portray) can have multiple “realities.” ²⁸ Because they reflect existing political discontents ²⁹ and are sometimes shot using the aesthetic trends of the time, ³⁰ they enact a bio-juridical body—by which I mean a pained, injured, dead body—that is situated in a certain space and time, culture, and history; a bio-juridical body that derives its meaning from the performance of photography itself. As Bell explains, the contents of a crime scene photo (even when bodies are absent from the image itself) tells us something about how criminal violence exists. In the context of her research, an empty living room, littered with buckets, and sponges—things that are out of place—enacts illegal abortion as a clandestine, “backstreet,” dangerous-precisely-because-it’s-so-everyday, kind of violence. ³¹ In this way, crime scene photographs do not simply mirror a reality, but actually enact the reality(ies) they transcribe.

2. Forensic Pathology

Forensic pathology enacts a very different kind of criminal violence than crime scene photography. Like crime scene photographers, forensic pathologists study the crime scene for clues about the cause and manner of death and injury. Their practice is scripted, in the sense that it is regulated by (in the UK) legal instruments like the Human Tissue Act (2004) and the Chief Coroner’s Guidance, and institutions like the Home Office Register of Forensic Pathologists, all of which govern how bodies may be handled. The pathologist studies criminal violence by looking at what happens on the surface of the body, within its interiors, and by taking account of relationships between the body, its constitutive parts like hair, nails, and skin, and the surrounding environment.

By examining the body’s decomposition with reference to patterns of insect infestation and reproduction, ³² the deposit of fatty acids and soil, ³³ and the body’s exposure to environmental conditions such as wind and rain, ³⁴ forensic pathology pinpoints the approximate moment a subject ceases to exist. They enact a criminal violence, which implies that “dead” bodies react with insects, nature, and climate in a way that living bodies—bodies that can “act” and “move” and “think”—do not, would not. These ways of knowing and showing the victim’s (non)existence produce an understanding of human history—the temporal parameters of human life—that is inextricably entangled with the nonhuman world. Remarkably, forensic practices show, and contrary to the purposes for which they are usually employed by the criminal law, that the body continues to act, continues to have the potential to affect and be affected by other matter, even after the cessation of “life” in the way that the criminal law understands it. ³⁵

Similar to the way crime scene photography operates, forensic pathology also shows us a criminal violence that is disordered and chaotic. This is evident from the techniques that pathologists use to process a crime scene. Blood spatter analysis, for instance, with its focus on velocity, trajectory, intensity, and force, using words like “direction of travel” and “speed” to describe the flow of blood, ³⁶ and studying blood drops as evidence of body movement, ³⁷ enacts criminal violence as a frenzied, active event. This scene contrasts dramatically to pathological observations about lawful violence, for instance.

• (6) The orientation and arrangement of the wounds over the left wrist are typical of self-inflicted injury. Also typical of this is the presence of small so-called “tentative” or “hesitation” marks.

• (8) Other features at the scene which would tend to support this impression include the relatively passive distribution of blood, the neat way in which the water bottle and its top were placed, the lack of obvious signs of trampling of the undergrowth or damage to clothing. The location of death is also of interest in this respect as it is clearly a very pleasant yet relatively private spot of the type that is sometimes chosen by people intent upon self-harm.

• (9) Many of the injuries over the left wrist show evidence of a well-developed vital reaction suggesting that they have been inflicted over a reasonable period of time (minutes rather than seconds or hours) before death. ³⁸

As paragraphs (8) and (9) of the forensic report indicate, violence that is not criminal (e.g., self-inflicted) presents itself through a static and ordered environment (e.g., “passive distribution of blood,” “neat way in which the water bottle and its top were placed,” “lack of obvious signs of trampling”). Lawful violence is methodical and tentative, “inflicted over a reasonable period of time.” In the way that scenes are observed and measured, components of the body—for example the blood—appear agentic; they move, even “splatter.” Blood tells a story and affects in cases of criminal violence, but just “sits there,” waiting to be seen and explained when it comes to its lawful counterpart.

Forensic pathology involves the study of criminal violence through the performance of invasive medical examinations, where bodies are split open, organs are studied and weighed. The body is investigated as a unit, but also as a constellation of parts (hair, nails skin), each acting differently to the surrounding environment. It is common practice for pathologists to record a found body’s internal temperature, decomposition rate, and rigor mortis, all of which enact death as a cold, immobile, rigid, disappearing body. Pathologists have many tools at their disposal. Technologies such as magnetic resonance imaging (MRI), positron emission tomography (PET), and computerized tomography (CT) create images of the body’s insides—providing visual knowledge of its anatomy, physiological processes, and cellular activity. These technologies use three-dimensional detail to provide viewable information about the structure of organs and tissue, brain activity, and the (non)performance of the digestive, respiratory, and circulatory systems. They give us an inside account of death and injury’s presence.

Through the use of contrast media and fluoroscopes, radiographic images draw our attention to fractures, lacerations, and abnormal body processes. By using special dyes in the process of x-raying, organs can be made to look denser, allowing viewers to visually link (and thus locate) certain kinds of criminal violence (e.g., rape) to certain parts of the body (e.g., the female genital tract). ³⁹ This demonstrates to what extent the “science” of forensic pathology is co-materialized with crime and the sociocultural body. These images tell us how bodies should work, and when they no longer work. They, at once, enact death as loss of circulatory or respiratory function, the cessation of brain activity. And, as Annas’ reference to the Schiavo case demonstrates, these visual technologies can give us a very different, sometimes contradictory, understanding of human life (and its cessation) than other material sources of knowledge like the photograph. ⁴⁰ The visual knowledge that radiographic images impart have the potential to overwhelm the oral testimony of experts who explain what these images show. ⁴¹ They, in essence, generate a picture of what animacy and injury is, at least in terms of (human) physicality, and they often do so by treating bodies as things that are embedded in and in constant motion with their environment.

3. Legal Judgments

Criminal violence is also enacted by talking about it; spoken words make violence audible and visualizable. And the words that are used, how they connect things that they speak about, all have an effect on the kind of criminal violence that is brought into existence. As Barad claims, “a performative understanding of discursive practice challenges the representationalist belief in the power of words to represent pre-existing things.” ⁴² Accordingly, here I do not speak about legal judgments as the law’s description of what has happened in a particular context of violence, but as a performance of what violence becomes.

There is no doubt that in each case here he battered his victim to death with that heavy hammer. . .The heads were smashed with repeated blows from that hammer and in the case of the daughter in addition he tied around her neck that ligature. . .that material ligature, so tightly that he could not remove it himself and I think even the ambulance men later had difficulty in removing it. ⁴³

You remember [Dr. Bowen] told you that [the victim] had twelve separate lacerated wounds to his head, did not indicate necessarily to him twelve separate blows but certainly more than six blows. Not only were there these lacerations all over his head and face but the skull had been fractured, the facial bones had been fractured. The Doctor’s words ‘the entire facial bones were extensively fractured. There were broken fragments of denture in his mouth and his jaw had been fractured. . .’. . . That was what was done by the defendant. ⁴⁴

The judge’s words draw distinctions between the different agencies at work. Certain objects are given attention and scope, the hammer becomes an object of the law precisely because of its ability to fracture, and its material constituents (the steel head, the wooden handle) are only relevant to the law to the extent that they produce the effect of fracture. ⁴⁵ The judge’s words draw distinctions between objects and subjects by empowering some agencies the potential to speak (“the Doctor’s words”) and to control (“that is what was done by the defendant”), some to be wielded into action (the hammer), and others to passively lie there, bones fractured, “fragments of dentures in his mouth.”

The judge’s words do not focus on the same agencies (e.g., blood) and activities (splattering) as forensic pathology, yet they yield a similar enactment of death as broken, battered, fragmented bodies taking up space. Through the words of the judge violence happens through the “blows” and “lacerations” the body endures, by the stamping that produces “fractured bones” and “fragments of dentures.” ⁴⁶ Pain and injury are enacted as scalar activities quantified by reference to between “six and twelve blows.” By focusing its attention on certain activities, the number of blows inflicted on heads, the striking of the hammer, the words of the Doctor, the judge’s words enact a different kind of criminal violence than forensic pathology and crime scene photography. For one, the words of the judge establish people—not spaces, environments, and nonhuman animals—as the subjects of violence, as the things that act and move and affect.

But the words of the judges do not stand alone. They are, of course, scripted by the statutes under which a defendant is charged, and of course by what has already been said by other judges in previous cases, and also by what has been said by other judges in other jurisdictions. Thus, there is an incorporeal dimension to every act of criminal violence that is visualized by the law. Violence is not only what is said by the judge, but also what is not said but nonetheless operates in the background as constraints on what can be said. The English law of rape, and its definition of rape as penile penetration, for instance, limits how bodies can be brought together in word within the confines of the courtroom. Thus, the judge’s words make visible the kind of violence the law itself sees. What “matters” here is that people wield hammers that fracture bones and that subjectivities disappear when bodies break in irreparable ways. But we cannot mistake how the law knows violence as the way in which violence (and its constituting bodies, matter, and ideas) exist. For, as we have seen in the previous sections, the agencies and objects that matter shift depending on the modalities by which violence is studied.

Now, clearly, what is also relevant here is how violence becomes “criminal” once subjected to the law’s gaze. Violence is not criminal at the moment it takes place, when one body connects with another. There is no inherent truth as to the lawfulness or unlawfulness of violence apart from the pronouncement of judges and juries. Criminal violence is brought into existence through the scripted words of the judge that direct the jury about the legal requirements for finding culpability, and when jury members deliver the verdict of “guilty.” But, perhaps, one could argue that it is not even at this point that violence becomes “criminal” because, in many cases, appeals are filed, cases are retried, verdicts are overturned. When new evidence becomes available, new objects, activities, and interactions may come to matter in the filing of appeals and the performance of new trials. Certainly, one could also say that criminal violence is enacted at entirely different moments depending on who and what is studying it. As an example, for forensic pathologists, violence becomes criminal when their investigations yield evidence that suggests an unnatural cause of death. And so, what is worth making very clear here, is that it is not the properties of the body that yield a finding of criminal violence (or violence itself). It is how bodies are performed, the agencies which are spotlighted, the activities that are materialized by criminal legal practice, the ideas that operate in the background as constraints on these performances and which enact the kind of violence the law wants us to see.

4. The Lived Reality of Criminal Violence

Criminal violence is not only mattered discursively, but also performatively. It has a lived reality, a “becoming-violated,” where the body takes center stage as the target of criminal violence. Certain kinds of conduct, and the body’s intra-action with particular kinds of matter (pressure, enzymes, gasses) cause blood vessels to break, blood to pool, skin to discolor and break open, the insides of bodies to leak, faces to contort, bones to break, voices to grow shrill, eyes to tear up, bodies to swell, breathing to stop, pulses to disappear, muscles to stiffen, tissues to decompose, bodies to stink. The body does many things to perform violence, to make visible, audible, olfactible its presence. In some contexts, it carries out these performances in collaboration with other matter, leaking across walls and tables, disintegrating through intra-active processes between enzymes and organs, bacteria and tissue, making sounds and producing odors that must be heard and inhaled in order to be. These are all performance, which we—as the audience, as individuals who encounter them with our own bodies—categorize as pain, injury and/or death. But the body becomes violated in different ways. Sometimes the threat of force, the battering of flesh, does not produce shrill screams, but silence. ⁴⁷ Sometimes the application of extreme force does not cause bodies to break open or skin to discolor, but leaves lesions on the brain. ⁴⁸ Sometimes becoming violated does not affect blood circulation and respiration, but results in a permanent loss of wakefulness. ⁴⁹ Bodily performances have the potential to drive legal understandings of pain, injury, and death, manifesting in categories such as psychological injury, emotional damage, “brain death,” which suggests that the criminal law has recognized the body’s agency in enacting violence in multiple ways. But what this also shows is that the criminal law is perfectly able to recognize that violence can have multiple realities.

Importantly, as Mol suggests, “the reality of living with [criminal violence, for instance] isn’t exhausted by listing physicalities” like bruising, screams, and odors. “Apart from being a physical reality” criminal violence “has a meaning” for victims. ⁵⁰ The physicalities of violence shape the sufferer’s future conduct and interactions that they engage in. The fear that violence causes prevents people from leaving their homes ⁵¹ and changing jobs or leaving the city they live in. ⁵² The pain that violence provokes stops people from engaging in intimate sexual relations ⁵³ and sometimes causes them to attempt suicide. ⁵⁴ The bio-juridical body appears very differently here than in crime scene photographs and radiographic images. These are bodies that avoid certain kinds of activity, settings, environmental conditions, and relationships. These are bodies that report self-abuse, ⁵⁵ and a kind of living, “social death,” whereby the insides of bodies continue to function, but sufferers report feeling unable to control its actions. ⁵⁶ In the way that violence is performed by bodies, pain and injury do not simply appear as tissue damage or bruises, but as fears, anxieties, anger, and guilt that cause bodies to behave and interact with others differently than they may have before. Accordingly, pain, injury, and death are not only socio-material phenomenon by virtue of their discursive constitution and representation, but also because their existence relies on how bodies perform them—how bodies conduct themselves in relation to other bodies, things, and the environment.

III. Criminal Violence and the Posthuman

My analysis in the preceding sections is meant to show that pain, injury, and death—as the effects of criminal violence—are not part of the violated body’s ontology. They are not phenomena that have a singular, universal meaning. Pain, injury, and death, within the context of criminal violence, are enactments that take place through the accretion of different practices and performances including (but not limited to) forensic pathology, crime scene photography, legal judgments, and bodily performance. Barad refers to this process of accumulation and communication as one of causal intra-action, “intra” in the sense that discursive practices are themselves indeterminate, open-ended, and flexible. ⁵⁷ According to Barad’s theory of agential realism, it is the discursive practices by which a phenomena is studied—what she refers to as “apparatuses” because they involve the observation, measurement, and study of phenomena using specific technologies and techniques—that separate out and draws boundaries around the objects and relationships that matter. Thus, it is these apparatuses that determine how criminal violence is enacted, what it becomes. In drawing its “agential cuts,” or the boundaries which set out the subjective and objective “things” of criminal violence, ⁵⁸ these apparatuses not only determine how we come to see pain, injury, and death, but also how we come to see the bio-juridical body (the kind of body that can be pained, injured, and killed). These apparatuses convey to us, among other things, that a pained body is one that has a brain that can be mapped; an injured body is one that has bones that can be broken; a dead body is one that has organs which can stop operating. Consequently, as she explains, “practices of knowing are specific material engagements that participate in (re)configuring the world.” ⁵⁹

Taken separately, each of these apparatuses yield a different kind of criminal violence: a lived criminal violence, a judicial, pathological, aesthetical criminal violence. But together, as material practices that are collectively part of the criminal law process, they begin to give both criminal violence, and its bodies, structure and form. ⁶⁰ Nevertheless, the sedimentation of these relationships into determinate boundaries, physical properties (e.g., as fleshed bodies, as steel hammers) need not imply “closure.” ⁶¹ Just as the effect of fracture can be brought about irrespective of whether a hammer head is made of titanium or tungsten, the effects of death or pain can be enacted even if bodies are not flesh. It is our practices that bring matter and its specific properties into being.

We have always limited our study of criminal violence by reference to the human body, justifying our choice to do so by pointing to the human body’s ontology. Yet, rapid technological development, ecological changes, environmental degradations have made it clear to us that we can no longer treat ourselves and our bodies as exceptional, discrete, separate-from-the-world, self-contained beings. These developments affect our physicality and sociality. Thus, while the memory of these past materializations, ones that have given “the human” the specific form and meaning we have become accustomed to, will remain inscribed within our practice, they can be overwritten; we can become something other than what we have always been. For new materialists such as Barad, Braidotti, and Haraway, our existence in the face of these changes is crucially dependent on our openness toward a nonanthropocentric ethics that sees being human as an embedded practice, entangled with the multiple (human and nonhuman) agencies at work within the universe. ⁶² As a result, we must consider human experience and human phenomena as interlinked with the nonhuman. For new materialists, this shift in thinking requires that we direct our attention to the material conditions of our existence, and develop a more ethically sound politics that recognizes that matter has vitality, it has agency, and thus has the potential to move us in ways that may be contrary to our own interests and desires. ⁶³

So, going full circle, how does all of this relate back to the initial concern about my students saying that avatars and robots cannot be the perpetrators or victims of violence because their bodies are incapable of being harmed? Well, I believe here that my students were mistaking epistemology for ontology—treating the ways in which bodies are being done as if they were indicative of how bodies are. And this outlook is not entirely surprising. Latour, Barad, and Haraway have all noted in one form or another, that we wrongly focus on the steadfastness of “matter” rather than mutable, plastic, flexible kinds of “mattering,” ⁶⁴ the processes by which we enact ourselves and the world around us. Through this article, I have sought to draw attention to these processes of mattering with the intention that we might, more critically, engage with the idea of criminal violence as a phenomenon that could include, indeed does include, more than just human bodies.

The idea that robots, artificial intelligence, and avatars can never be human irrespective of how many human behaviors they exhibit treats “being human” as something separate from looking and acting human; as if being human was determined by some metaphysical essence that human beings possess, rather than a subjective decision to recognize bodies as “human” based on our sensorial encounters with them. Our history is littered with examples of how the measure of one’s humanity is founded on ideas about how bodies should look, smell, behave, and speak. ⁶⁵ While our bodies may sense things in its interior—chemical, molecular, cellular processes—these body-interior processes are only accessible to the rest of us (indeed even to the experiencing body itself) to the extent that they can be made visible, audible, olfactible, and tangible. Even when our bodies actually sense pain, injury, or death, these internal sensations have significance and meaning for us as embodied entities, bodies that are in the world, because they have an effect on how we interact with the world around us. As Mol explains, what is pain other than a sensation that makes it impossible for us to “climb stairs” and “go shopping”? ⁶⁶ And what gives a reality to the things happening inside our bodies are the various discursive-material practices that bring the inside outward, for others to sense, encounter, and interact with. Scarry writes:

When one hears about another person’s physical pain, the events happening within the interior of that person’s body may seem to have the remote character of some deep subterranean fact, belonging to an invisible geography that, however portentous, has no reality because it has not yet manifested itself on the visible surface of the earth. . .Vaguely alarming but unreal, laden with consequence yet evaporating before the mind, because not available to sensory confirmation. . .the pains occurring in other people’s bodies flicker before the mind, then disappear. . . ⁶⁷

But it is not just the pain of others; even our own pain dissipates unless it has material consequences, unless it prevents our bodies from acting in certain ways, or shapes the way that others relate to us. The reality is that even our own humanity is a series of material arrangements and engagements. Our humanity is not defined by some immaterial, metaphysical essence—animacy, sentience, a soul, or whatever one may call it. It is defined by what our bodies do, how they relate to the world around us, and what other bodies see, hear, smell, taste, touch our bodies doing, namely how we relate to one another as embodied entities. But also, “as a consequence of how we become related to our surroundings within such movements, traces of their surrounding doings become inscribed in our bodies and influence the shaping of our actions in future encounters within our surroundings.” ⁶⁸ All matter, our bodies included, are always open to (re)configuration, what DeLanda refers to as matter’s potential for “morphogenesis”; we are part of an iterative “becoming” of the world. ⁶⁹ Since the body is always in a state of transition, it is “in an immediate, unfolding relation to its own nonpresent potential to vary.” As a result, we are faced with the “paradox” that there is always “an incorporeal dimension of the body,” ⁷⁰ which alludes us—a body that once was and a body that does not yet exist but is in the process of becoming.

These conclusions suggest that, perhaps a more inclusive way of thinking about robotic, machinic, and digital violence is to recognize that all bodily phenomenon—including violence—irrespective of the kinds of bodies it involves (human and nonhuman), refers to the body’s material engagements with the world and how those engagements are observed, measured, thought about, and spoken of. From this perspective, violence becomes posthuman; both mindful of the “human” that has served to drive contemporary politics until now, but also conscious of the fact that what constitutes the human relates back to us, and the socio-material practices that we engage in to bring that human into existence. So when my students say that robots and avatars cannot be harmed because they do not feel pain or experience mortality, what they must realize is that it is our anthropocentric discourses that tell us that violence can only harm when it leads to: organs that fail, brains that become inactive, bodies that contort, bones that break, odors that surface, tears and screams that emerge, bodies that avoid certain spaces, places, and relationships. Pain, injury, and death mean very little to us apart from these representations and performances. Violence becomes “criminal” to us, when we believe that, in certain contexts (e.g., in the absence of consent), these representations and performances breach acceptable limits about how we relate to one another and the world around us. This, we say, “harms us.” Thus, criminal violence refers to how we are made to encounter bodies, through our senses, and how we believe those encounters affect our relationships to one another and the surrounding universe.

If all violence refers to the body’s material engagements with the world, then recognizing human-on-nonhuman violence, and vice versa, is not about equating nonhuman bodies to human ones. It is about recognizing that bodies are not the stable, determinate, self-contained ways of existing that we believe them to be. For what is a better example of this then metal and digital bodies that can perform tasks the same way flesh-and-bone bodies do? There is no static, physical, “human.” Rather, humanness is distributed; it proliferates across material arrangements that we may, through our practices, recognize as “human” or “human-like.” ⁷¹ And this, here, is important because it also recognizes our potential—as stable-for-the-time-being material arrangements of cells, water, minerals, proteins, images, performances—to mutate, to change without compromising our humanness. Hayles has remarked that we as a species have always been, to some extent, “posthuman”—that we have never existed alone, as self-contained, self-sufficient, fixed entities—but, this is perhaps even more so apparent today than ever before. ⁷² We live in a world of smart environments, sex robots, fitness trackers, and digital living spaces. Technology not only shapes our lived reality, but also our physicality. Cryogenics, prosthetic limbs, ⁷³ artificial skin, ⁷⁴ all of this speaks to the social and physical plasticity of the human body. If our cognitive functions, moods, and behaviors can be performed by machines, and if our bodies and its biological processes can be swapped out for technological, synthetic, manufactured alternatives, what precisely is a human being?

Perhaps then what might be a more fruitful way of thinking about humanity is not in terms of bodies but processes, “thinking through flows and interconnections.” ⁷⁵ We do not stand separate from the world around us, subjects in a world of objects, but are entangled within it. Subjectivity and objectivity are therefore not inherent categories of matter, but iterative processes. Barad writes:

Agency is ‘doing’ or ‘being’ in its intra-activity. It is the enactment of iterative changes to particular practices – iterative reconfigurings of topological manifolds of spacetimematter relations – through dynamics of intra-activity. Agency is about changing possibilities of change entailed in reconfiguring material-discursive apparatuses of bodily production, including the boundary articulations and exclusions that are marked by those practices in the enactment of a causal structure. ⁷⁶

Thus, the human shifts through a series of movements, a series of practices, that slowly, steadily, and continuously reconfigure the boundaries, limits, and exclusions of humanness. As a result, in studying human phenomena—like criminal violence—we should refrain from concentrating our attention on a singular, bodied, notion of the human, for both the sociality and physicality of the human is consistently being challenged and reformulated. Rather, we should direct our gaze to the apparatuses, the material practices, through which that change takes place. This paper has demonstrated how those material-discursive practice “mattered”—how they jointly brought both the bio-juridical body and the effects of criminal violence into being. The fact that many of these practices relied on studying the body by reference to interactions between flesh, insects, and the environment—even when the physical body was no more—suggests that there is a reality to criminal violence that both takes account of, yet exceeds the (allegedly) self-contained, inner processes of the “human” body. In light of this, one could possibly say, that our practice of criminal violence has always, already been, posthuman, and it is simply time for us to come to terms with this.

IV. Conclusion

It has never been my intention to argue that the criminal law should apply to nonhuman bodies. This paper was more meant to encourage us to think about precisely why and how it applies to human ones. In this paper, I have argued that the wrongfulness of violence, the idea that violence harms, cannot be traced to the human body’s ontology, but rather the modalities through which we observe, measure, talk about, and think about the human body. Here, I have analyzed only a few of those modalities: crime scene photography, forensic pathology, legal judgments, and bodily performance. I have argued that these material-discursive practices, when looked at more closely, expose precisely to what extent our bodies and the violence they experience are enacted by bringing flesh into contact with a number of different tools, technologies, and ideas. Humanoid robots, artificial intelligence, and avatars, I believe, have helped to provoke a critical reimagining of human existence as a process of becoming, or better yet, a becoming-with (technology, environment, climate, insects, animals, machine, etc.). We are relational beings because for us to “be,” we must be in the world. And to that end, one could also argue that our embodied experiences, including criminal violence, are also relational. Criminal violence is not rooted in a specific property of the body—sentience, or animacy, or agency—but filters down to choices that we have made, practices that we have undertaken, about how to relate to the world around us. And if this is the case, as I believe it is, then precisely the kinds of conduct that constitute criminal violence can also change. A posthuman understanding of criminal violence, therefore, would reimagine it as a series of enactments that make sense-able the moral concern and responsibility we feel we ought to have to other bodies and matter around us. And once we realize this, we can begin to see how our agency is not determined by the extent to which our bodies maintain a fixed, impervious, self-contained existence, traceable to some celestial or metaphysical arrangement of the universe, but the extent to which our bodies are continuously able to become-with the universe. As Braidotti writes, “the point is not to know who we are, but rather, what, at last, we want to become, and how to represent mutations, changes and transformations” toward that end. ⁷⁷ In the context of criminal violence, then, we cannot think about criminal violence using binary divisions like “human” and “nonhuman,” for that produces an inaccurate picture of precisely what criminal violence entails. Even human criminal violence involves non-human components—insects, the wind, microscopes, and radiographic machines. I propose, instead, that we imagine criminal violence as posthuman, both mindful of but not enslaved by the conventional categories of human and nonhuman, and the associated idea that bodies are singular, self-contained, and bounded entities. Criminal violence is a series of material enactments that can represent “mutations, changes, and transformations” of the historically human. All that this requires, then, is a desire on our part to be more than just human.