A Feminist Analysis of the Harm Principle

Abstract

Justifications for criminal sanctions are often made on the grounds that they both punish those who have caused harm and prevent future harms occurring. The expansion of the criminal law into the 'pre-offence' stage been widely criticised for the absence of a harm element,with a slew of recent laws attempting to criminalise categories of meetings, thoughts and other potentially benign preparatory activities. From this perspective, harm seems to be an appropriate safeguard against incursions by the State. The 'Harm Principle' requires that, for an act to be criminalised, it must first cause harm. One of the central distinctions the Harm Principle makes in legitimising the criminalisation of certain acts is between the public and private realms. In practice, the application of the Harm Principle can mean that only crimes committed in the former are considered worth punishing. Proponents of the Principle present this public/private division as occurring naturally.4 While the division has broken down to a considerable extent in relation to offences against the person, it is frequently accepted as the limit of the criminal law, in relation to offences, including those of dishonesty.