Jonathan Herring: 'Great Debates in Criminal Law'

Question 1

What principle underlies the most common understanding of law?

Answer 1

The Harm Principle

Question 2

What are three ways to characterise the harm principle?

Answer 2

1. as a hard fast rule
2. as a presumption we often make
3. as a filter to weed out what should not be decriminalised

Question 3

What is a person not generally liable to being punished for?

Answer 3

An omission to act

Question 4

Give two examples of when a person could be punished for an omission.

Answer 4

1. when there is a duty imposed by statute, like being asked to take a breathalyzer by a police officer.
2. when there is a duty imposed by a contract

Question 5

What is one way we can get around whether offence = harm?

Answer 5

Reasonable avoidability: could the victim easily avoid getting exposed to offensive material?

Question 6

Give an example of how the harm principle may be used as a filter to weed out what should not be decriminalised.

Answer 6

Any non-harmful action should be legal. Eg. reading books is not harmful so it should be legal.

Question 7

What is the Eggshell Skull Rule?

Answer 7

in a tort case, the unexpected frailty of the injured person is not a valid defence to the seriousness of any injury caused to them

Question 8

Give an example of where the Eggshell Skull Rule would apply.

Answer 8

X pushes Y over, unaware that Y has a thin skull. Y breaks their skull and dies. X cannot use the unexpectedness of the thin skull as a defense.

Question 9

To which debate is R v Brown relevant?

Answer 9

Whether sadomasochistic sex should be deemed an assault.

Question 10

What happened in R v Wilson?

Answer 10

A man branded his wife’s buttocks. She went to the GP and he was arrested for this as assault. He claimed it was consensual and the case was analysed as such.

Question 11

What is the feminist case for criminalising sadomasochistic sex?

Answer 11

It is symbolically demeaning to women. Moreover, references to “slaves” and “masters” may carry historical racial connotations which can be seen as dehumanising in the larger societal context.

Question 12

Why might we prefer to talk about “bodily integrity” and not “bodily autonomy” in cases of rape?

Answer 12

Bodily autonomy makes it seem as if the autonomy of the rapist to rape is as important as the victim’s autonomy.