Introduction
This chapter highlights two groups of reasons why victims of cybercrime are overlooked by the criminal law. First, and perhaps most surprisingly to many readers, victims and their harms are at best of only marginal interest to the criminal law. Second, core features of criminal law doctrine are conceptually incompatible with recognizing and adjudicating cybercrimes. Consequently, for largely doctrinal and conceptual reasons, criminal law makes a very poor ally for victims of cybercrime.
Drawing on contemporary work in Anglo-American jurisprudence, I highlight key features of the notions of “crime” and “criminal law.” These include that crimes: are defined within jurisdictions; involve specific recognized offenses; need not involve harms, nor be morally troublesome, nor even have victims; have specific mens rea requirements such that a given act will not even count as a crime unless the offender committed it with the requisite intention or knowledge of wrongdoing; are committed by identifiable offenders, in precise geographical locations; and are committed against the state, which reserves an exclusive right to determine whether to initiate criminal prosecution.
Next, I explain how these generic features of the criminal law, when combined with generic features of online interactions and some features of the technology involved, create special hurdles for recognizing, thinking about, and responding to cybercrime. These hurdles include: where the conduct occurs (which impacts on whether it qualifies as a crime in that jurisdiction); who committed the crime (especially given online anonymity, impermanence of online evidence, and the law’s high standards of proof for securing criminal convictions); and difficulties in establishing causation and mens rea in cases that often involve multiple and diffuse perpetrators and victims.
The aim of this chapter is to provide some theoretical background and perspective on the many hurdles and needs outlined by contributors to this collection. It paves the way for the argument – made in detail in the conclusion of this book – that non-legal responses might ultimately hold more promise for helping cybercrime’s victims in a timely, sensitive, and effective manner.
Victims and their harms are not the criminal law’s central concern
The main aim of this section is to describe features of the criminal law in virtue of which victims in general (not just victims of cybercrime) and the harms that they suffer are not of central concern to the criminal law. In pursuit of this aim I will make two main points.
The first of these two points is that, as peculiar as it may sound, crimes need not necessarily involve victims, nor harms, nor even moral wrongs.
For instance, consider unsuccessful criminal attempts (Lippman 2013, pp. 161–196; Yaffe 2014), like when one person attempts to kill another – e.g. by sprinkling deadly poison over their dinner plate – but fails because the victim, who doesn’t know their food is poisoned, decides they no longer feel hungry and leaves their plate untouched. There is, luckily, no victim in this scenario, but yet it is still an offense to unlawfully attempt to kill someone, regardless of whether you succeed or fail. And if the attempted offense is discovered, the state will prosecute regardless of whether there is a victim or not.1 Furthermore, even if someone else decides to have seconds and eats the poisoned food and consequently dies, the fact that there would now be a victim whose harm could be fixated on would not make the original criminal attempt disappear. Rather, the offender might now be charged with not just one offense – i.e. the unsuccessful attempt to poison the original person – but also with a second crime, like manslaughter or reckless endangerment of human life.
There is also the vast category of so-called “victimless crimes” (Bergelson 2013) which includes a potentially staggering range of acts, ostensibly between consenting parties, and even self-regarding2 acts, that the state treats as criminal offenses. Even though the parties involved do not deem themselves to have been harmed or victimized by the legally prohibited interaction, and even though they may indeed be more likely to view themselves as victims of the state’s unwelcome intrusion. Typical examples, depending again on the jurisdiction in question since not all jurisdictions criminalize the following conduct, include prostitution, homosexual sex, use of certain recreational drugs, use of some prescription medications in non-prescribed ways, gambling, provision of euthanasia, other consented-to killings, and even suicide.3 It may be tempting to view the existence of such victimless criminal offenses merely as vestiges of an outdated morality, of prudishness-turned-criminal-offense, or even of the tyranny of a majoritarian approach to law-making where what sticks out from what is considered normal by the majority becomes liable to criminal prosecution. However, to see why this would be too quick, consider some of the reasons why victimless crimes might exist and are kept in place. For instance, because it may be too difficult to establish whether consent was present in a given case (e.g. in euthanasia, especially after a patient has been euthanized). Or perhaps, we might reason, that although a blanket ban on euthanasia prevents some people from legitimately taking their own lives with someone else’s assistance to avoid a slow and painful death, it also ensures that a greater evil won’t occur by deterring greedy and unscrupulous relatives from killing off their vulnerable dying relatives. In other words, policy considerations regarding what state of affairs we would like to avoid, not individual judgments regarding specific instances of actual behavior, may underpin the creation and retention of such victimless crime categories.4
Lastly, there is the issue of whether moral wrongness should be a deciding factor in whether something should be classified as a criminal offense. Intuitively, it may seem like it should. On reflection, though, there is reason to resist this intuition. To see why, consider John Stuart Mill’s famous “harm principle” that underlies much thinking about which conduct it is permissible to criminalize. Mill, whose work in ethics5 and political philosophy6 makes him one of the most influential nineteenth century British philosophers, argued that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection,” and that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill 1859, I.9). As I comment in note 4, this raises the question of which conduct should be identified as “harmful,” and here Mill thought that the state should defer to the judgments of those people whose interests would be affected in order to decide whether they would be harmed or not. He wrote that:
neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own wellbeing: the interest which any other person, except in cases of strong personal attachment, can have in it, is trifling, compared with that which he himself has; the interest which society has in him individually (except as to his conduct to others) is fractional, and altogether indirect: while, with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by anyone else.
(Mill 1859, IV.4)
Because Mill thought that people are best-placed to know what is and what is not conducive to their own happiness7 – after all, each person seems to have the most intimate acquaintance with their own interests, preferences, likes, and dislikes – he therefore supported siding with people’s own judgments about what does and does not harm them. However, it also seems plausible that at least sometimes people can be mistaken about whether they are harmed or not, and this view finds equal support among conservatives (who typically favor criminalizing such things as sodomy, prostitution, adultery, and fornication) and progressives (who celebrate the de-criminalization of such things). After all, both sides fundamentally agree that people’s moral views can be mistaken. If they did not agree on that (even if they disagree about the details of precisely who is mistaken), then they could not have a basis for claiming that someone else’s view was wrong and that theirs was right, nor that some changes can be rightfully classified as instances of moral progress (Rachels 1999, pp. 21–23). Theoretical simplicity aside, the answer probably lies somewhere in between these two views. That is, in some cases it makes sense to defer to people’s own judgments, but sometimes people are indeed mistaken. Nevertheless, the problem with this view, sensible as it might be, is that if we attempt to enact laws that enforce morality, then that will create long-lasting and intractable disputes over what, if anything, should be left in the sphere of private (as opposed to public) morality – i.e. that part of morality over which the law should not have a say in our lives.8 For this reason, apart from the most serious moral wrongs about which people’s views converge, the category of criminal offenses cannot be co-extensive with the category of moral wrongs.
This is not to say that victims are completely absent from criminal proceedings. However, the way in which they are present is not one that gives them, their harms, and their views about their own harms – in particular, about why they matter and about what should be done about them – much pride of place or authority. Victims appear on the witness stand, in gruesome photographs, when the defense of provocation is raised by the criminal offender (i.e. as potentially having brought the harm onto themselves), and when judges hand down judgments that formally acknowledge the wrong they suffered.9 Victims also appear in victim impact statements, but even then this is a relatively recent innovation. In the US, it is only since the case Payne v. Tennessee (1991) that the Supreme Court allowed this to be presented as aggravating evidence, and even then only at the sentencing (not guilt determination) phase of a criminal trial – that is, only to decide upon the punishment, but not on the offender’s degree of guilt.
However, if victims and their harms do not feature prominently in the criminal law, then who and what does? The short answer, which brings me to the second of the two main point of this section, is that offenders, the state, and offenses against it (not offenses against victims) are what features most prominently within the criminal law.
To understand why, it helps to note some general features of crimes and of the criminal law. Crimes are understood as acts or omissions defined as offenses within the criminal statutes of a given jurisdiction, that are prosecuted by the state and at the state’s discretion, and where a finding of criminal guilt may result in the offender’s being punished by the state (e.g. see Blackstone 1765; Kleinig 1978; Duff 2010). Furthermore, criminal offenses are defined by two elements – the “actus reus” and “mens rea” – and in order for a person to be convicted of having committed a specific criminal offense, both elements of that offense must typically be proven. The actus reus element (forbidden act) specifies what a person must have done or failed to do – e.g. unlawful killing of a human being, non-consensual sexual intercourse, or failing to come to another person’s aid (the last of these being an example of an omission rather than a positive act). And the mens rea (guilty mind) element specifies the degree of intention with which that actus reus must have been committed – e.g. on purpose, with knowledge, recklessly, negligently, or in some cases regardless of intention (also known as “strict liability”).10
“Crime” is thus a technical term that applies to very specific and specifically defined acts, with very specific mental state requirements, and what is or is not a crime is highly contingent on the precise jurisdiction in question. The upshots of these dry and technical-sounding points are very important. If two jurisdictions differ in what actions or omissions they list in their criminal statutes, or in how those actions or omissions are described, or in how key terms are understood, or if they require those actions or omissions to be performed with different degrees of intention to satisfy the criteria for committing the given criminal offense, then a person who performs the very same actions or omissions in three different places (i.e. under three different jurisdictions) may be guilty of committing one crime in one jurisdiction, another crime in another jurisdiction, and possibly no crime in the third jurisdiction. That was a long sentence, so now consider some examples. For instance, if a fetus of a specific age is recognized as a human being in a particular jurisdiction, then a physician who provides an abortion in the relevant jurisdiction could be found guilty of murder,11 and similarly for physicians who provide terminally ill patients with euthanasia. If the abortion and euthanasia were performed in different jurisdictions, in which that conduct is not criminalized, there might be no criminal law ramifications. Inter-jurisdictional differences in what counts as “consent,” whether “sexual intercourse” requires opposite sexes and penile penetration of a vagina, and how a person’s gender is established, can also account for marked differences in such things as what counts as rape, and why in some jurisdictions assailants can only be found guilty of indecently assaulting transgender people but not of raping them.12
The immediately preceding discussion has two ramifications for this and the remaining chapters in the present book.
First, to the extent that the criminal law even cares about harms, those harms will only be recognized as criminal offenses in those jurisdictions in which they actually are explicitly recognized, and only to the extent allowed by their precise definition as criminal offenses. This is important for three reasons (the second and third of which will be elaborated on in the next section below). One, it further explains why the criminal law may not be adequately sensitive to harms suffered by victims – namely, because regardless of the moral wrongness of certain kinds of harms, unless they are explicitly defined as crimes and the offender-specific elements are also defined in such a way that their commission will be recognized as a criminal offense, then they simply may not even qualify as criminal offenses in a given jurisdiction. Two, and relatedly, even if each of the examples of things referred to as “cybercrimes” in this book is a criminal offense somewhere in the world (which is itself a further empirical question, to which the answer may plausibly be “no”), it is doubtful that all of them are recognized as (cyber)crimes everywhere in the world, in all jurisdictions. This matters because it means that in some places the examples of cybercrimes c...
