scholarly journals Criminalising fabricated images of child pornography: a matter of harm or morality?

Legal Studies ◽  
2010 ◽  
Vol 30 (2) ◽  
pp. 230-256 ◽  
Author(s):  
Suzanne Ost
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Criminal Law ◽  
Child Pornography ◽  
Harm Principle ◽  
Legal Moralism ◽  
Liberal Perspective ◽  
The Harm Principle

This paper addresses the criminalisation of fabricated images of child pornography. Focusing on the new offence of possessing ‘non-photographic pornographic images of children’ (NPPIC) under the Coroners and Justice Act 2009, it assesses whether harm- and morality-based arguments legitimate the extension of the criminal law to this activity. I contend that harm may be caused to children by NPPIC that are depictions of real child sexual abuse, and images that depict the fantasy sexual abuse of a real, recognisable child. However, it is extremely difficult to find a legitimate basis for prohibiting the possession of fantasy, completely fabricated NPPIC through a reasoned application of the harm principle and thus criminalisation of such images is not justified. Adopting a liberal perspective, I argue that moral harm-based arguments ultimately fail to convince, since legal moralism or moral paternalism should not be acceptable grounds for criminalisation. I conclude that a stronger case for criminalisation would have been made had the offence been limited to NPPIC depicting real child sexual abuse, or featuring real, recognisable children, or targeted at creators and distributors rather than possessors.

Preventing child sexual abuse and the use of child abuse images: the Prevention Project Dunkelfeld as an international perspective

2019 ◽  
Vol 1 (1) ◽  
pp. 61-66 ◽  
Author(s):  
Klaus M. Beier
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Sex Offenders ◽  
Mental Health Professionals ◽  
Child Pornography ◽  
Sexual Exploitation ◽  
International Perspective ◽  
The Body ◽  
World Health ◽  
Sexual Offences

Paedophilia—a sexual preference for the body scheme of pre-pubescent children—is defined as a disorder within the International Classification of Diseases (ICD) of the World Health Organization as well as within the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association. Contrary to popular belief, not all sex offenders who target children are paedophiles, and not all paedophiles commit sexual offences. But quite obviously paedophilia is an emotionally charged and controversial topic, which might be an explanation for putting it out of focus within the healthcare system. Mental health professionals are mainly (and worldwide) not well trained in terms of assessment methods and intervention techniques available to develop and implement effective policies and practices. This presents an obstacle for prevention, in that proactive strategies to protect children from child sexual abuse and sexual exploitation by online offences, such as the consumption or distribution of child abusive images (so-called child pornography), which emphasises the internationally relevant dimension of the issue. The article will address key concerns and questions in dealing with this clinically relevant population, offer insights into a primary prevention approach developed in Germany, and discuss the situation on a European level.

From the harm principle to harm decisionism: Hart, Feinberg, and the eclipse of Millian ambiguity

2015 ◽  
Vol 36 (1) ◽  
pp. 185-211
Author(s):  
Bernard E. Harcourt
Keyword(s):  
Criminal Law ◽  
Harm Principle ◽  
Simple Sentence ◽  
Anglo American ◽  
The Harm Principle

This simple sentence from John Stuart Mill’s “Introductory” to On Liberty—pulled out of context and denuded of Mill’s sophisticated philosophical treatment—became a foundational reference of Anglo-American criminal law and helped shape the course of penal legislation, enforcement, and theory during the twenteith century.

scholarly journals Hukuman Kebiri terhadap Kejahatan Seksual Anak

2020 ◽  
Vol 22 (3) ◽  
pp. 567-582
Author(s):  
R Bondan Agung Kardono ◽  
Nyoman Serikat Putra Jaya ◽  
Nur Rochaeti
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Human Resources ◽  
Criminal Law ◽  
Future Development ◽  
Child Protection ◽  
Financial Support ◽  
Chemical Castration ◽  
Second Amendment ◽  
Technical Regulations

Maraknya kejahatan seksual terhadap anak, menimbulkan persepsi bahwa kebijakan hukuman penal yang ada saat ini, dipandang tidak mampu meminimalisir kejahatan seksual terhadap anak. Tulisan ini mempertanyakan bagaimana kebijakan kriminal sanksi tindakan kebiri terhadap pelaku kejahatan seksual terhadap anak yang diatur dalam PERPU No. 1 Tahun 2016 saat ini dan masa mendatang? Tulisan ini merupakan penelitian yuridis normatif yang mengkonsepkan hukum sebagai ius constitutum, ius constituendum dan hukum in concreto. Hasil penelitian menyimpulkan bahwa kebijakan kriminal melalui hukum pidana berupa hukuman kebiri kimia, perlu diikuti dengan Peraturan Teknis Pelaksana; (a) Pelaksanaan sanksi tindakan kebiri tidak dapat dite-rapkan untuk semua pola-pola kejahatan seksual, tetapi bersifat kasuiistis; (b) Diperlu-kan dukungan sarana prasarana sumberdaya manusia untuk teknis pelaksanaanya; (c) Diperlukan dukungan anggaran biaya yang secara tegas dimuat dalam DIPA untuk menjalankan eksekusi kebiri; (d) Diperlukan kajian akademik yang mendukung revisi atau perubahan atas Undang-Undang No. 17 Tahun 2016 tentang Penetapan Peraturan Pemerintah Pengganti Undang-Undang No. 1 Tahun 2016 tentang Perubahan Kedua atas Undang-Undang No. 23 Tahun 2002 tentang Perlindungan Anak menjadi UU. Castration Punishment for Child Sexual Abuser The increasing number of child sexual abuse considered as an impact of penal punishment incapability. The aim of this research is to examine the enforcement of PERPU No.1/ 2016 specifically about crastation punismneht for child sexual abuser, currently and its future development. This is a juridical normative research by ceoncepting law as ius constitutum, ius constituendum and law in concreto. The research conclude that criminal law in the form of chemical castration punishment, needs to be followed by Implementing Technical Regulations; (a) The implementation of the castration sanction cannot be applied to all kind of  sexual abuse, but it is casuiistic in nature; (b) Infrastructure and human resources is needed for the technical implementation; (c) The inportance of financial support that’s explicitly mentioned in DIPA to enforce the castration execution; (d) Lastly, an academic study is also needed to support a revision for  Law Number 17 of 2016 concerning the stipulation of PERPU number 1 of 2016 concerning the second amendment to law number 23 of 2002 concerning child protection, transform to be a law.

PLASTIC TREES AND GLADIATORS: LIBERALISM AND AESTHETIC REGULATION

Legal Theory ◽  
2010 ◽  
Vol 16 (2) ◽  
pp. 77-90 ◽  
Author(s):  
Larry Alexander
Keyword(s):  
Harm Principle ◽  
Legal Moralism ◽  
Joel Feinberg ◽  
The Harm Principle

The hallmark of modern liberalism is its embrace of the Millian harm principle and its antipathy to legal moralism. In this article I consider whether aesthetic regulations can be justified under the harm principle as that principle has been elaborated by Joel Feinberg. I conclude that aesthetic and other regulations that most liberals regard as unproblematic are actually instances of legal moralism.

Collateral Consequences and Criminalization

2019 ◽  
pp. 209-222
Author(s):  
Zachary Hoskins
Keyword(s):  
Criminal Behavior ◽  
The State ◽  
Harm Principle ◽  
Legal Moralism ◽  
Collateral Consequences ◽  
Legal Consequences ◽  
The Harm Principle

This chapter examines the implications of the existence of collateral legal consequences (CLCs) for decisions about what types of conduct the state should, or may, criminalize. It might seem that criminalization decisions should not be concerned with CLCs: it is one question what sort of conduct the state should declare to be criminal behavior, and a separate question what consequences should follow for those who violate criminal laws. But this chapter contends that the existence of CLCs is relevant according to specific accounts of criminalization, namely versions of the harm principle and legal moralism. It is also relevant to the legitimacy of the state more generally. Thus the existence of CLCs is relevant both to officials who make criminalization decisions and to scholars assessing competing theories of criminalization.

scholarly journals ‘Smoke gets in your eyes …’: the criminalisation of smoking in enclosed public places, the harm principle and the limits of the criminal sanction

Legal Studies ◽  
2011 ◽  
Vol 31 (2) ◽  
pp. 259-278 ◽  
Author(s):  
Pamela R Ferguson
Keyword(s):  
Criminal Law ◽  
Harm Principle ◽  
Criminal Sanction ◽  
Public Places ◽  
Parliamentary Debates ◽  
The Future ◽  
The Creation ◽  
The Harm Principle

Legislation has been enacted in both England/Wales and Scotland which criminalises smoking in certain places. This paper uses these prohibitions as a way of exploring two prominent theories of criminalisation which were employed in the parliamentary debates on the legislation, namely legal paternalism and the liberal ‘harm principle’. The paper argues that the creation of these offences cannot be justified by paternalism, and that the risk of harm to non-smokers from ‘passive smoking’is a preferable justification. This latter rationale could be used in support of more extensive smoking prohibitions in the future. The paper recognises the desire of many to limit the use of the criminal sanction and concludes by suggesting that unwarranted criminalisation can only be avoided if legislatures proposing new offences clearly articulate their reasons for believing that the criminal law is the best mechanism for reducing or deterring the conduct at issue, and demonstrate that the behaviour cannot adequately be deterred by non-criminal measures.

scholarly journals Transnational by Default: Online Child Sexual Abuse Respects No Borders

2021 ◽  
Vol 29 (3) ◽  
pp. 731-764
Author(s):  
Sabine K. Witting
Keyword(s):  
Sexual Abuse ◽  
Child Sexual Abuse ◽  
Child Pornography ◽  
Best Interests ◽  
The Internet ◽  
Child Prostitution ◽  
Optional Protocol ◽  
Rights Of The Child ◽  
Extraterritorial Jurisdiction ◽  
High Level

Abstract Combatting child sexual abuse on the internet requires a high level of harmonisation of both substantive and procedural laws, as online child sexual abuse is transnational by default: while the transnational nature of child sexual abuse material used to be the exception before the advent of the internet, it is now the rule. In order to prosecute and investigate online child sexual abuse across country borders, states rely heavily on extraterritorial jurisdiction clauses as well as informal and formal law enforcement collaboration channels. This paper analyses existing channels in the opsc, Budapest Convention and Lanzarote Convention, particularly against the background of the recently published crc Committee Guidelines regarding the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (crc/c/156), and provides for concrete guidance on how to ensure that the best interests of the child in the prosecution and investigation of transnational crimes such as online child sexual abuse is the primary consideration.

2. What is ‘crime’?

2021 ◽  
pp. 27-53
Author(s):  
Steve Case ◽  
Phil Johnson ◽  
David Manlow ◽  
Roger Smith ◽  
Kate Williams
Keyword(s):  
Criminal Law ◽  
Harm Principle ◽  
Criminal Behaviour ◽  
Social Construct ◽  
Socially Constructed ◽  
Over Time ◽  
The Harm Principle ◽  
What Matters

This chapter discusses what crime is. No matter how universally its ideas and regulations are accepted, it is important to understand and not lose sight of the fact that crime is a social construct. Because crime is socially constructed, ideas of unacceptable and criminal behaviour alter across cultures and over time. Many suggest that what is known as the ‘harm principle’ might be the best standard by which we should decide whether an activity should be criminal. This principle holds that if conduct is not harmful to others it should not be criminal, even if others strongly dislike it. The chapter also looks at the concept of deviance and identifies: what kinds of activities are disapproved of (seen as deviant) and why; which of these are criminalised and why; what the criminal law may reveal about society and what matters to it.

Reasons to Criminalize

2018 ◽  
pp. 143-181
Author(s):  
Vincent Chiao
Keyword(s):  
Criminal Law ◽  
Subject Matter ◽  
Public Law ◽  
Point Of View ◽  
Harm Principle ◽  
The Political ◽  
Legal Moralism ◽  
The Public ◽  
Political Ideal ◽  
The Way

This chapter extends the public law conception to the theory of criminalization. The first half of the chapter is devoted to considering whether the criminal law has a privileged subject matter or “core,” focusing especially on Feinberg’s influential account of the criminal law as a system of direct prohibitions. The chapter argues that a subject-matter-based approach has difficulty coming to grips with actual criminal law systems in modern administrative states, in which so-called mala prohibita offenses predominate. The second half of the chapter turns to sketching how we might approach the question of criminalization from a public law point of view, both in general and with reference to the political ideal of anti-deference (sketched in Chapter 3) in particular. Along the way, the chapter argues that the (very popular) wrongfulness principle turns out to be either empty or implausible, and hence that we should reject any version of the harm principle, or of legal moralism, that presupposes it.

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