In a liberal society, it is generally considered that the criminal law should not be concerned with all morally wrong behaviour, but should attempt to identify and regulate only the wrongful
88 Hans Von Hentig, ‘The Limits of Deterrence,’ 29 J Am Inst Crim L & Criminology (1938) 555, 559. 89 Ibid.
behaviour which causes risks, or risks causing significant social harm.90 Eminent rule-
utilitarian deterrence theorist, John Stuart Mill, argued as far back as the 1850s that criminal sanctions could only be warranted in cases where conduct causes harm (or possibly offence) to others.91 Joel Feinberg, who shared Mill’s liberal leanings, later provided clarification as to the
sorts of conduct the state might rightly make criminal. He argued that the consequences of an act, or the ‘wrongful setbacks’ to the welfare interests of individuals and general society, make an act wrong, rather than the act itself being a violation of a moral standard.92 Western liberal
democracies have long since relied on this principle to justify limiting the state's use of criminal punishment, on consequentialist grounds.93
The harm principle often functions as a method of bringing community values into the criminal law while maintaining the requisite objectivity and neutrality expected from the justice system. The principle can be said, then, to distinguish what marks out criminal conduct from civil wrongs and makes clear the state’s role in delineating this.94 The discussion in the previous
section has shown that criminalising revenge porn on the ground of deterrence theory is partially justifiable, if at least some potential offenders can be deterred. Criminalising the conduct on the ground of the harm principle, is, arguably, wholly justifiable, given the wrongful setbacks it creates to individual and welfare interests. The harm principle provides validation for preventing and reducing the harm caused by certain conduct in a ‘public’ way that the law considers relevant and that concerns society as a whole, rather than merely concerning the ‘private’ harm to individual citizens within a community. 95 Revenge porn can be considered
to be a public wrong as it is the identification with victims as fellow citizens who adhere to society’s shared values, such as dignity and trust, which makes it a public wrong.
90 Joshua Dressler, Understanding Criminal Law, Lexis Publishing, New York, 2001) 2.
91 Mill believed that the moral correctness of people’s actions depends on the correctness of the rules that allow
them to achieve the greatest good. See generally, John Stuart Mill, On Liberty (Penguin, Harmondsworth, Middlesex, 1979; 1859).
92 Joel Feinberg, Harm to Others (Oxford University Press, New York, 1984) 31-36.
93 Stephen Schulhofer, 'Harm and Punishment: A Critique of Emphasis on the Results of Conduct in the
Criminal Law' (1974) 122 U Pa Law Review 1497, 1499.
94 Claire Stimpson, ‘A Feminist Analysis of the Harm Principle: The Financial Element in Fraud,’ 38 (2013)
Alternative L J 103, 103.
95 Stuart P Green, Lying Cheating, Stealing: A Moral Theory of White-Collar Crime (Oxford University Press,
Using the harm principle to justify the criminalisation of revenge porn can be problematic, from a feminist perspective, however, where revenge porn originates from a pattern of private behaviour concerning domestic abuse. As Stimpson observes, this is because of the criminal law’s historical reluctance to enter the home, or indeed, the bedroom.96 In 1957, The
Wolfenden Committee on Homosexual Offences and Prostitution took the view, advanced by Mill, that the criminal law should have no place intervening in private conduct, other than to prevent harm. The Committee maintained, then, that there was a realm of private morality, or indeed, immorality, which was not the business of the law. 97 In other words, what adults did
in private was not considered to be the law’s business (as long as the harm was not inflicted non-consensually), but what they did in the public domain would only attract the intervention of the law, if it was likely to harm the feelings of ordinary members of the public.98 The
Committee thus drew a distinction between public and private domains, when justifying the intervention of the criminal law, balancing the need to keep the law out of the private, consensual affairs of adults, with the need to protect citizens from collective injury or offence, through harmful ‘public’ wrongs.
Where crimes concern private, domestic relationships, however, it has not always been clear where the line should be drawn between conduct that is considered publicly wrong, and thus concerns society collectively, or privately wrong, concerning only those individuals directly involved. Serious domestic sexual wrongs, do, unquestionably, constitute a serious violation of a civic society’s core values, but there are some domestic sexual wrongs, such as adultery, which are not perceived as being a serious wrong in any ‘public’ sense that might justify the intervention of the criminal law. This distinction could, arguably, be seen to extend to revenge porn disclosures originating from the breakdown of private, domestic relationships, these not being perceived, therefore, as being publicly harmful enough to require the intervention of the criminal law. In this sense, revenge porn might fairly be considered by some, like adultery, to concern private consensual relations, and thus be a matter for private law.
96 Stimpson (n 94) 104.
97 Report of the Committee on Homosexual Offences and Prostitution (Wolfenden Report) (Cmnd 247)
(London, HMSO, 1957).
98 Andrew Ashworth and Jeremy Horder, Principles of Criminal Law (7th edn, Oxford University Press, Oxford,
Revenge porn dissemination is clearly offensive to public sensibilities, but, arguably, it does not evoke the same identification as with victims of serious domestic sexual abuse. This is because in a significant number of cases, revenge porn victims will have willingly taken and shared the offending images in the first place. This creates a challenge for the harm principle, when justifying the intervention of the criminal law, because of the active, consensual participation of the victim herself, in producing and sharing the images. The original consensual distribution of the images, might, therefore, have the potential to undermine any shared understanding of the ‘public’ character of revenge porn, the inference being that revenge porn may not be an issue that can be considered to properly concern the public generally, as consensual, private, sexual relations are an area in which the criminal law is not normally prepared to intervene.
Stimpson observes, however, that this inherently privileges harms that are of concern to the public sphere, at the cost of the private.99 This can be seen, historically, she argues, where
many crimes concerning domestic abuse have been considered to be beyond the purview of the criminal law, the result being that crimes occurring in private are silenced.100 The danger here,
she asserts, is that the harm principle appears to reinforce the male values of the legal system, which consider that matters originating from the bedroom and concerning private affairs are external to the criminal law. This view might, arguably, be borne out by the continuing reluctance of women to report crimes resulting from domestic abuse in relationships.101 It might
also be a contributing factor in the significant under-reporting of revenge porn disclosures, particularly where these form part of a pattern of domestic abuse;102 the subliminal message,
being, as Stimpson observes, that such issues belong in the private sphere.103 When viewed
from this perspective, the harm principle might be construed as protecting the private sphere from the supposedly greater harm that is interference by the state, rather than recognising the significant harms that can arise within, and even because, of the private sphere.104 Using the
99 Stimpson (n 94) 105. 100 Ibid, 105.
101 Jamie Grierson, ‘Domestic Abuse Still Under-Reported in England, Says Women's Aid,’ The Guardian (7
March 2018) < https://www.theguardian.com/society/2018/mar/07/domestic-abuse-still-under-reported-in- england-says-womens-aid> accessed 15 January 2019.
102 Laura Hilly and Kira Allman,‘Revenge Porn Does Not Only Try to Shame Women – It Tries to Silence
Them Too,’ The Guardian (22 June 2015) <https://www.theguardian.com/technology/2015/jun/22/revenge- porn-women-free-speech-abuse> accessed 15 January 2019.
103 Stimpson (n 94) 105.
harm principle to justify the criminalisation of revenge porn is clearly problematic, then, if there are areas of life that are subconsciously, or even subliminally, deemed by women to be outside the purview of the criminal law, and this results in a failure by them to report the types of crimes that can arise from the breakdown of domestic relationships.
However, the criminalisation of revenge porn using the standard of the harm principle can be justified, regardless of any active participation of victims in creating the images, as is it the harm caused by their non-consensual dissemination that makes revenge porn a public wrong. Even where revenge porn disclosures arise from the breakdown of private domestic relationships, the non-consensual disclosure of images previously shared in confidence violates many publicly shared values, such as those of dignity, sexual autonomy and trust. Victims should not be left to pursue their own grievances, therefore, as their perpetrators should be answerable not merely to them, but also to their fellow citizens for the ‘violation of the core values’ by which communities define themselves.105 The criminalisation of revenge porn that
originates from the private domain is clearly justifiable from the standard of the harm principle, as this interference by the state advances both individual and societal interests far more than it sets them back.