Matters of harm and exploitation

Abstract

The question of harm is fundamental to understanding and assessing the legal and societal response to child pornography and sexual grooming. At this point, it is thus unlikely to come as a surprise that I refer to John Stuart Mill's famous harm principle as providing an important rationalization for state interference with individual freedoms. Applying Mill's jurisprudence, it is only appropriate to criminalize behaviour related to child pornography and grooming and thereby restrict an individual's freedom when this behaviour inflicts harm upon others. Mill's explication of the harm principle, and the development and refinements provided by Feinberg, thus provide the ‘conscientious legislator’ with a morally defensible justification for criminalizing behaviour. There are numerous constructions of the harms of child pornography and grooming that have shaped the way in which society and law have responded to these phenomena. I will begin by examining the harms caused by the creation and distribution of child pornography, before focusing at some length on the possession of child pornography. The latter warrants especial consideration because it is questionable whether such behaviour is, in itself, harmful. I then consider whether the legal prohibition upon pseudo-images is justified on the basis of harmful exploitation, and assess whether images of naked children are harmful. The discussion subsequently turns to grooming and the criminalization of behaviour where the wrong, or harm, goes beyond the act in question and I critique the common presentations of the harm of grooming.