An important psychological consequence to be investigated empirically is the link between criminalization, professional identity and ability, particularly the ability to continue functioning as safe and ethical practitioners. Criminalization interferes with honest disclosure, which has ethical consequences for most professionals (and practical consequences for their organizations and industry). Also, accountability demands that are seen as unreasonable and illegitimate (e.g. those imposed by the criminal justice system) can interfere with the conscientious execution of safety-critical work. There is some experimental suggestion that with unreasonable accountability demands, cognitive effort gets deflected into the management of liability risks to the detriment of task-orientation (Lerner & Tetlock, 1999) which in turn could have adverse safety consequences. This could do with more substantive empirical corroboration in safety-critical fields. Further, research on perceived fairness (Menkel-Meadow, 2000), secondary victimization  and post-traumatic stress and criminal responsibility (Friel, et al., 2008) should be extended to include professionals charged with a crime.

There are important obstacles faced in developing work in this area. First, victimization research may in part have been hampered by its roots in advocacy and the defense of human rights, sometimes perhaps at the cost of developing victimology as a field of scientific inquiry (Elias, 1988; Fattah, 1992; Parsonage, 1979). This means that interesting tensions and affinities across relevant work are not as clearly visible yet, and that theoretical matters for debate have to be delineated through the sort of dialogue critical to intellectual development. Second, work on secondary victimization has scarcely focused on the “perpetrator” of the alleged crime as second victim, but rather on people in the immediate context of the first victim (e.g. his or her family). Their psychiatric needs have been the object of study, for example (Case, 2004), as has the harm caused to first victims by criminal proceedings against their perpetrator (Orth, 2002). None of these studies allow the perpetrator-as-second-victim to even be constructed as such. The dehumanization of possible victims is an additional social process that mediates the responsibility other people will feel toward them and their fates (Cehajic, Brown, & González, 2009), and mild forms of this can be seen when professionals under suspicion are no longer allowed to wear uniforms, badges, entry cards or other in-group insignia (S. W. A.  Dekker, 2003). In healthcare, yet another factor is the conversion necessary for seeing the caregiver suddenly as one in need of care, something that can be quite difficult (ISMP, 2007).

These obstacles are consistent with a broader theoretical issue. Criminology has long adhered to a fairly narrow scientific essentialism that sees social facts as stable across observers and observations, as inert and independent from the moment of observation and the language used to describe the observed “fact” (Bjarup, 2005; Rafter, 1990). This aligns with fields such as aviation and medicine, where the nature of professional mistake is often taken as essential and unproblematic (Bosk, 2003; Croft, 2001). Mistakes happen, they can be observed, they have consequences, and have a concrete ethical import (Helmreich, 2000). Such an epistemology is hostile to characterizations of “error” (and, by extension, crime, or the criminalization of such “error”) as relative, historically located and observer-contingent constructions. The positivist, engineering- and andro-centric biases that permeate safety-critical fields such as aviation, medicine, shipping or construction make that both the “mistake” and any “criminal” aspects are seen as non-arbitrary empirical facts that must be dealt with by the legitimated authorities.

For instance, responding to the 1996 ValuJet accident in the USA, where mechanics loaded oxygen generators into the cargo hold of a DC-9, which subsequently caught fire, the editor of Aviation Week and Space Technology “strongly believed the failure of SabreTech employees to put caps on oxygen generators constituted willful negligence that led to the killing of 110 passengers and crew. Prosecutors were right to bring chargers. There has to be some fear that not doing one's job correctly could lead to prosecution” (David M. North, 2000). Similarly, punitive approaches to non-compliance (e.g. handwashing) are favored by some inside of healthcare (Dekker & Hugh, 2009).

There is, in such commentaries, no room for critical reflection on who constructed the alleged act as a crime, and from what political or social force field this construction may have emerged (Merton, 1938; Summerton & Berner, 2003), nor much need for a thoughtful analysis of the possible post-conditions of creating secondary victims. The resulting theoretical position in much safety research may have sacrificed engagement with the criminalization of mistake as a social-scientific issue, leaving the discovery of any negative side effects to the practitioners themselves. Indeed, such a realization may have moved North (D. M. North, 2002) to rescind his position two years later, when he opined that learning from accidents and criminal prosecution go together like “oil and water, cats and dogs,” and that “criminal probes do not mix well with aviation accident inquiries” (p. 70).

Criminology, social constructions and the prosecution of professional mistake

Criminological research has increasingly been taken into social-constructionist territory (Engbersen & Van der Leun, 2001; Rafter, 1990) where the focus is turned away from the putatively inherent deviance of acts and onto how crimes and criminality are socially constituted (Christie, 2004). This could be a profitable direction of inquiry for a criminalization trend, as it aligns with traditional sociological concerns about order/disorder (Michel Foucault, 1967) and the role of social control in policing the boundary between the two (Merton, 1938; Morrill, Snyderman, & Dawson, 1997). The social-constructionist line of sociological research into deviance has accelerated since Howard Becker (Becker, 1963), who argued that those who draw the lines between acceptable and unacceptable behavior are perhaps more interesting than those who cross them, that “… deviance is created by society …  not a quality of the act the person commits, but rather a consequence of the application by others of rules and sanctions to an ‘‘offender’’. The deviant is the one to whom the label has successfully been applied” (p. 9). From this position, culpability arises out of our ways of seeing and describing acts. It is constructed, or “constituted” (Christie, 2004): “Crime is a product of cultural, social and mental processes. For all acts, including those seen as unwanted, there are dozens of possible alternatives to their understanding: bad, mad, evil, misplaced honour, youth bravado, political heroism—or crime.” (p. 10).

This has shifted a part of the criminological research problem. If people make rules or draw lines whose transgression constitutes a crime, then the drawing of the rules deserves more sociological attention than their breaking. Indeed, Becker’s argument encouraged a considerable amount of research into where these rules came from (Rafter, 1990), like the work of Erikson (Erikson, 1966) and Foucault, who explicitly forced post-structuralist theory into criminal justice history with Discipline and Punish (Michel Foucault, 1977), where knowledge doesn’t reflect as much as it helps create the categories we see (or are even able to see). This construction is subject to change in part because, for Foucault, it is always an arena for political contest, for the redistribution of power and control through society (Michel Foucault, 1982). Who are likely to become moral entrepreneurs, inventing and applying and imposing new rules, new lines that separate legality from illegality? How do these rules help preserve or upset the status quo, particularly when it comes to the distribution of power in a society? This represents a whole new set of questions for criminology and crime research: away from the perpetrators, and toward the groups that construct them and try to control them (see also Garland (Garland, 1993, 2002) for his post-structuralist follow-ups on the history of crime control). It has also made possible the notion of “over-criminalization” (Husak, 2008), something that people in safety-critical fields would argue is happening with the prosecution of their professionals (ICAO, 2007; ISMP, 2007).

Evolution of social perspectives on accidents and culpability

Although forceful, the social-constructionist or post-structuralist argument does not explain specific criminological trends, or shifts in societal assessments of criminality at specific times in history—only that such shifts occur and that they, in general social terms, are the result of societal renegotiations in what is seen as acceptable behavior. Why professionals are more likely to be criminally prosecuted today as compared to, say, forty years ago, is not in itself explained. One answer, however, can be sought in the relatively modern notion of “accident” itself (Beck, 1992; Green, 2003). Until the scientific revolution in the seventeenth century, societies had little need for a concept like accident. Religion and superstition supplied explanatory models for misfortune, and where misfortune was going to occur was random, uncontrollable, and unknowable. This idea waned throughout the modern period, to be gradually replaced by a late nineteenth-century model that saw accidents as unfortunate but otherwise meaningless coincidences of space and time (Green, 2003); as random physical events that revealed nothing of interest about the human or organizational work behind them.

Over the last 30 years, however, the societal interpretation of accidents has shifted again. Failures such as the Three Mile Island nuclear accident in 1973 and the collision of two jumbo jets at Tenerife in 1977 moved accidents back onto the center stage of our societies and Western society is said to be much more “risk conscious” (I. Wilkinson, 2001). No longer do they take accidents in stride as meaningless, uncontrollable and occasional events. Accidents today are seen as evidence that a particular risk was not managed well enough. And behind such mismanagement there are people, single persons, or single acts of omission or commission by those persons (Bittle & Snider, 2006; Green, 2003). Accidents are failures of risk management, which opens the door for the search (judicial or otherwise) for someone who did not manage risk well. The accident can go, or even needs to go, on somebody’s account (Douglas, 1992)

What seems to have accompanied the transition over the last thirty years, however, is a gradual reduction in the acceptance of risk altogether (Beck, 1992), and the expectation that some safety-critical activities are entirely accident-free, with a zero-tolerance of failure. Some safety-critical systems have their own success to thank for this: their increasingly flawless performance may have sponsored a societal belief in their infallibility and a concomitant political intolerance of failure (Amalberti, 2001). This means that almost of necessity, explanations of residual failure in these systems get deflected toward the vicissitudes of individual culprits (Perrow, 1984). The end of the twentieth century has also seen an increase in the democratization and accessibility of knowledge, as well as consumer vocalism and activism. These can put the failings of complex systems (or alleged failings of individuals in them) on fuller display (Anon., 2005; Pandit, 2009), and animate societal responses to them.

Media, populism and politics

Research into the influence of contemporary media on such responses to human error is underdeveloped, but the media doubtlessly enjoys a strong role in celebrating certain accidents, while being able to ignore others (S. W. A. Dekker, 2007b; Ditton & Duffy, 1983; Ödegård, 2007; Palmer, Emanuel, & Woods, 2001). A recent study links cultural and political populism to the punitive issues of a country’s criminal justice system (Miyazawa, 2008), and media coverage of an event has been shown to articulate and animate social reactions to the point of constructing anti-heroes (Elkin, 1955; McLean & Elkind, 2004) and their crimes (S. W. A. Dekker, 2007b; Ericson, 1995; Innes, 2004; Jacobs & Henry, 1996; Tuchman, 1978). There is a strong basis to believe that the coverage of, and discourse surrounding social issues (e.g. hate crime, immigration, and by extension: accidents and human error) can be linked at least in part to political populism, judicial responses and the criminalization of new categories of human action (Blackwelder, 1996; Engbersen & Van der Leun, 2001; Husak, 2008; Jacobs & Henry, 1996; Phillips & Grattet, 2000). This could be seen as amounting to a strong democratic project (which defenders of media sensationalism in the wake of an accident or other undesirable social event likely would (Anon., 2005; M. Foucault, 1975)), where the polity, through its judicial system, responds to and “fairly” represents the concerns of the society in which it operates.