Dr. Dennis J Baker

Kate Middleton’s (Duchess of Cambridge) Topless Jaunt in Public View: No Privacy Violation in Criminal Law

Dennis J. Baker — Sun, 16 Sep 2012 02:59:31 PDT

In this paper, I examine whether there is any criminal or civil liability involved in photographing people in the nude in public domains—including private domains that are in public view such as the front and back yards of private homes. It will be argued that from the criminal perspective it is not a crime for a photographer or anyone else to take pictures of people in their backyard or private garden—or for that matter in another’s backyard or private garden, unless he or she commits trespass to take the photograph. The concept of front or backyard a fortiori extends to farmland, and larger areas on private estates that can be viewed from a public road or street. Thus, if there is no trespass, breach of confidence, or harassment involved in taking the picture, there can be no criminal or civil liability. If a person stands at his window in the nude, then he can hardly claim that his privacy has been violated if those passing by on the public footpath take photographs of him. Ms Kate Middleton has to take some responsibility for her own actions. Any celebrity knows that the paparazzi will not be far away. Arguably, when Ms Middleton took her clothes off she must have realised that her taxpayer-funded security officers and taxpayer-funded servants might see her, even if she was too naïve to understand that the paparazzi and their long lenses might not be far away. (If the security officers or servants had taken the photographs and sold them, then that would have raised different issues.) Unearned fame cannot be used merely when it suits its recipient: the massive advantages of having unearned fame of gargantuan proportions, even when it has some sort of government stamp on it, means the recipient has to be much more cautious than non-famous people when it comes to maintaining privacy. They have to take precautions to prevent their private information being viewed from public places. If a person takes her clothes off in public view, there is little the law will do to punish those who record what they have seen in public view. It is neither here not there that a long lens or binoculars where used: if a person walks around her New York apartment in the nude with the curtains open, she can hardly complain that a person living in an apartment a few blocks away is watching with binoculars. Likewise, if a farmer walks in the nude on a hill on his farm, he can hardly complain that passing motorists have used a long lens to photograph him from a distance. Per contra, if a famous person were in a quasi-private place that cannot be viewed from a public location, there would be civil law remedies available. Take the case where footballers trustingly allow journalists and photographers into their dressing room on the basis that they will not take photographs of them while they are in the nude: see Ettinghausen v. ACP, (1991) 23 NSWLR 443 cited in Dennis J. Baker, “The Sense and Nonsense of Criminalising Transfers of Obscene Materials,’ (2008) 26 Singapore Law Review 126 at footnote 72). However, when the private information is put in public view, there is no criminal liability, even if it causes its victim mental distress. Nor would this be an offence against the person under the Offences Against the Person Act 1861, as mental harm is only made out in English law where the victim suffers a recognised medical condition: see Dennis J. Baker, Glanville Williams Textbook of Criminal Law (2012) Chap. 9). Likewise, there seems to be no civil remedies available: there was no trespass, no breach of confidence, no nuisance and so on. The offences that might catch some paparazzi are those found in the Protection from Harassment Act 1997, but they only apply where there has been a course of conduct. Taking a one-off picture from a public viewpoint does not constitute a course of conduct.

RESPONSIBILITY LINKS, FAIR LABELING, AND PROPORTIONALITY IN CHINA: COMPARING CHINA’S CRIMINAL LAW THEORY AND DOCTRINE

Dennis J. Baker — Fri, 12 Aug 2011 11:07:02 PDT

This paper evaluates fair labeling in the areas of criminalization and punishment in China. We consider the justice of criminal labeling from a comparative perspective by examining several core offenses and comparing how these offenses would be labeled and punished in China, the United States, and Britain. Our analysis shows that collectivist conceptualizations of responsibility, which are deeply rooted in Chinese thinking, are yielding to more individualistic conceptions of justice. Notwithstanding this phenomenon, themes of collectivism and deterrence continue to influence criminalization and punishment decisions in China, especiallywhere individual acts of wrongdoing aggregate to form serious harm. Our analysis is doctrinal in that instead of conducting a large empirical study, we examine several high-profile cases and outline the general theoretical distinctions between them. Our analysis focuses on three core areas of wrongdoing: bribery offenses, manslaughter, and the criminalization of those who are remotely connected to a primary harm. We examine the way China handles corruption and corporate criminality when they result in human fatalities and ask whether their approach is reconcilable with Western notions of justice and fairness. Thereafter, we analyze and compare the use of the proportionality principle in punishment by the Chinese and Westerners. We conclude that Western definitions of harm and proportionate punishment are not universal, nor even consistently adhered to in Britain and the U.S.

THE IMPOSSIBILITY OF A CRITICALLY OBJECTIVE CRIMINAL LAW

Dennis J. Baker — Wed, 20 Jul 2011 09:21:59 PDT

In this paper, I argue that principled criminalization does not have to rely on critical objectivity. It is not necessary to demonstrate that conduct is criminalizable only if it is wrong in a transcultural and truly correct sense. I argue that such standards are impossible to identify and that a sounder basis for criminalization decisions can be found by drawing on our deep conventional understandings of wrong. I argue that Feinberg’s harm principle can be supported with conventional accounts of harm, and that such harms can be identified as objectively harmful when measured against our deep conventional understandings of harm. The distinction that critical moralists make between truly harmful conduct and conventionally objective harmful conduct is unsustainable because many conventional harms impact real victims in social contexts. The best that we can do is to scrutinize our conventional conceptualizations of harm and badness, but that scrutiny is constrained by the limits of epistemological inquiry and our capacity for rationality at any given point in time. Many acts are criminalizable because they violate social conventions that are shareable by communally situated agents. Dans cet essai, je soutiens que les principes de la criminalisation ne reposent pas forcément sur l’objectivité critique. Il n’est pas nécessaire de démontrer qu’un comportement est « criminalisable » seulement s’il est réellement répréhensible au sens transculturel. Je soutiens que de tels critères sont impossibles à identifier et que nos notions conventionnelles et approfondies du mal constituent une base plus saine pour les décisions relatives à la criminalisation. Je soutiens que les explications conventionnelles du mal appuient le principe élaboré par Feinberg et que ces maux peuvent être identifiés comme étant objectivement nuisibles lorsque comparés à notre compréhension conventionnelle et approfondie du mal. La distinction qu’établissent les moralistes critiques entre le comportement réellement nocif et le comportement généralement considéré comme étant objectivement nocif est intenable parce que de nombreux maux conventionnels affectent des victimes réelles dans des contextes sociaux. Le mieux que nous pouvons faire est d’examiner de façon minutieuse nos conceptions du mal et de la méchanceté. Cet examen est toutefois limité par les limites de l’enquête épistémologique et par notre capacité de rationalité à un moment donné. De nombreux actes sont « criminalisables » parce qu’ils violent des conventions sociales qui peuvent se partager par l’entremise d’agents collectifs.

RESPONSIBILITY LINKS, FAIR LABELING, AND PROPORTIONALITY IN CHINA: COMPARING CHINA’S CRIMINAL LAW THEORY AND DOCTRINE

Dennis J. Baker — Wed, 20 Jul 2011 09:17:59 PDT

This paper evaluates fair labeling in the areas of criminalization and punishment in China. We consider the justice of criminal labeling from a comparative perspective by examining several core offenses and comparing how these offenses would be labeled and punished in China, the United States, and Britain. Our analysis shows that collectivist conceptualizations of responsibility, which are deeply rooted in Chinese thinking, are yielding to more individualistic conceptions of justice. Notwithstanding this phenomenon, themes of collectivism and deterrence continue to influence criminalization and punishment decisions in China, especially where individual acts of wrongdoing aggregate to form serious harm. Our analysis is doctrinal in that instead of conducting a large empirical study, we examine several high-profile cases and outline the general theoretical distinctions between them. Our analysis focuses on three core areas of wrongdoing: bribery offenses, manslaughter, and the criminalization of those who are remotely connected to a primary harm. We examine the way China handles corruption and corporate criminality when they result in human fatalities and ask whether their approach is reconcilable with Western notions of justice and fairness. Thereafter, we analyze and compare the use of the proportionality principle in punishment by the Chinese and Westerners. We conclude that Western definitions of harm and proportionate punishment are not universal, nor even consistently adhered to in Britain and the U.S.

Responsibility Links, Fair Labelling and Proportionality in China: Comparing China’s Criminal Law Theory and Doctrine

Dennis J. Baker — Wed, 20 Jul 2011 09:12:27 PDT

This paper evaluates fair labeling in the areas of criminalization and punishment in China. We consider the justice of criminal labeling from a comparative perspective by examining several core offenses and comparing how these offenses would be labeled and punished in China, the United States, and Britain. Our analysis shows that collectivist conceptualizations of responsibility, which are deeply rooted in Chinese thinking, are yielding to more individualistic conceptions of justice. Notwithstanding this phenomenon, themes of collectivism and deterrence continue to influence criminalization and punishment decisions in China, especially where individual acts of wrongdoing aggregate to form serious harm. Our analysis is doctrinal in that instead of conducting a large empirical study, we examine several high-profile cases and outline the general theoretical distinctions between them. Our analysis focuses on three core areas of wrongdoing: bribery offenses, manslaughter, and the criminalization of those who are remotely connected to a primary harm. We examine the way China handles corruption and corporate criminality when they result in human fatalities and ask whether their approach is reconcilable with Western notions of justice and fairness. Thereafter, we analyze and compare the use of the proportionality principle in punishment by the Chinese and Westerners. We conclude that Western definitions of harm and proportionate punishment are not universal, nor even consistently adhered to in Britain and the U.S.

COMPLICITY, PROPORTIONALITY AND THE SERIOUS CRIME ACT

Dennis J. Baker — Wed, 20 Jul 2011 09:02:49 PDT

This paper evaluates proportionate punishment and fair labelling in the context of complicity liability. It is argued that only full intentional and extreme (subjective) reckless assistance or encouragement is sufficient for holding a secondary party equally responsible for the principal’s primary wrongdoing. It is also submitted that lesser mens rea states such as mere knowledge or belief provide a justification for grading certain forms of complicity as independent and less serious forms of criminality. More specifically, I examine the new provisions found in the United Kingdom’s Serious Crime Act 2007 and argue that those provisions could be used in place of the older provisions dealing with accessorial liability to ensure that those who are only subjectively reckless in contributing to the criminality of others are punished less than the principal. If a person is going to be sent to prison for life for merely supplying a gun to a principal, then justice and fair punishment require that the assistance be intentional or at least extremely reckless

Dennis J. Baker, ‘Punishment Without A Crime: Is Preventive Detention Reconcilable With Justice?’ (2009) 34 Australian Journal of Legal Philosophy 120

Dennis J. Baker — Thu, 08 Oct 2009 04:35:15 PDT

In this paper, I argue that civil preventive detention is tolerable because it is the lesser of two evils. I argue that the serious sex offender is partially to blame for his preventive detention, because he offends, re-offends and refuses treatment whilst in prison with a full awareness of the potential preventive detention consequences. However, I question the fairness of extending an offender's penal sentence beyond what his or her past wrongdoing warrants. I argue that laws allowing dangerous offenders to be imprisoned beyond the length of their original sentences cannot be reconciled with the cardinal requirements of justice and fairness and therefore should be abrogated. The proportional punishment constraint means that punishment has to be proportionate with the culpableness and harmfulness of the offenders' past wrongdoing. Because dangerous offenders do not deserve further penal sanction, civil confinement should be used instead of imprisonment in those exceptional circumstances where it is absolutely necessary to prevent further harm doing. Furthermore, if a detailed supervision order provides a reasonable solution, then it should be used instead of civil confinement. I argue that civil confinement and supervision orders can be reconciled with justice. In the final section of this paper, I argue that a person's right to justice and fairness can be overridden in exceptional circumstances to prevent aggregate harm of an extraordinary grave kind. However, the harm posed by serious sex offenders is not sufficient to override the proportional punishment justice constraint, because it is not sufficiently grave in aggregate terms and civil confinement is also available as a less draconian alternative.

'A Critical Evaluation of the Historical and Contemporary Justifications for Criminalising Begging,' (2009) 73(3) Journal of Criminal Law 212.

Dennis J. Baker — Fri, 24 Apr 2009 10:55:09 PDT

In this paper, I evaluate the historical and contemporary justifications for the offences of vagrancy and begging. The first part of the essay focuses on the historical roots of the older English legislation. Thereafter, I evaluate the contemporary justifications for criminalising homeless beggars and argue that there is no normative justification for criminalising beggars in the twenty-first century. The paper traces the history of the offence to demonstrate that the rationale for the enactment of the earlier laws is no longer relevant. Furthermore, I demonstrate that the justifications for maintaining such offences are invalid and contrary to justice. The 750 year old offence of begging was enacted in a by gone age. It is no longer an appropriate response for dealing with indigence. It is constructive to trace the legislative history of the older vagrancy offences in order to define the legislative purpose of the older prohibitions and the harms that they were originally designed to counter and to contrast that with the contemporary homelessness problem. I conclude that there is no historical or normative justification for maintaining this offence in the twenty-first century. The continued criminalisation of begging violates the beggar’s fundamental right not to be criminalised.

The Moral Limits of Consent as a Defense in the Criminal Law, 12 New Criminal Law Review (2009)

Dennis J. Baker — Fri, 27 Mar 2009 01:32:34 PDT

In this paper I aim to examine the objective limitations of consent as a defense to criminal harm doing. This paper starts by briefly outlining the idea of objective morality (critical morality) as the proper basis for criminalization decisions and argues that there are also objective rather than mere conventional reasons (positive morality) for limiting the scope of consent as a defense in the criminal law. The idea of consent is in itself an objective reason for excusing wrongful harm doing to others. However, it can be overridden by other objective considerations of greater importance. In this paper, I argue that it is only wrongful harm doing that is criminalizable, as we do not criminalize mere accidents. Furthermore, I argue that a person can as an exercise of her personal autonomy consent to certain harms. However, there is a crucial difference between waiving rights that are grounded in an exercise of personal autonomy and waiving rights that violate a person's human dignity: rational autonomy. I conclude that regardless of consent, certain grave harms violate a person's dignity as a human being and therefore are wrongful and criminalizable.

The Sense and Nonsense of Criminalizing Transfers of Obscene Material: Criminalizing Privacy Violations (2008) 26 Singapore Law Review 126

Dennis J. Baker — Fri, 27 Mar 2009 01:29:08 PDT

The recent distribution of nude photos of a number of high profile Hong Kong celebrities has provoked intense discussion about the state of Hong Kong's obscenity and indecency laws. In this paper, I argue that Hong Kong's laws prohibiting the transfer of obscene and indecent information and images between consenting adults are both under-inclusive and over-inclusive. The Control of Obscene and Indecent Articles Ordinance is under-inclusive in that it does not adequately criminalise grave violations of privacy. It is also over-inclusive because it is a blanket prohibition against the transfer by all parties (including consenting adults) of all forms of obscene and indecent materials. The laws unnecessarily violate the free expression rights of both the producer and consenting viewer of the offensive materials. The producer/publisher of such materials does not harm his or her audience as they willingly view such materials. The justification for maintaining a blanket prohibition against all transfers of such materials is invalid and utterly and totally out of touch with modern life in Hong Kong. The proponents of such laws have used Victorian positive morality considerations to justify continued criminalisation. These laws should be abrogated and replaced with a new piece of legislation that is narrowly tailored to deal with those types of offensive displays that are wrongful in a critical rather than a mere positive morality sense. Criminalisation should be limited to those offences that target children or use children in the production process, violate the rights of non-consenting adult audiences not to receive certain intimate information in certain public contexts, and violate privacy rights by publishing a person's private and intimate information without consent. If x obtains y's profoundly private information and publishes it without y's consent, then x violates y's privacy rights in a grave way. The violation in the right circumstances will justify a criminal law response rather than a mere civil law response. Similarly, if x and y copulate on a public bus they subject the captive audience to an offensive display which violates the non-consenting audience's right not to receive certain intimate information. I argue below that these types of privacy violations give the lawmaker a legitimate justification for invoking the criminal law.

'The Moral Limits of Criminalizing Remote Harms,' 10(3) New Criminal Law Review 370

Dr. Dennis J. Baker — Wed, 19 Nov 2008 10:14:57 PST

I draw on accessorial liability jurisprudence in an attempt to outline the moral limits of criminalizing people for merely influencing the criminal choices of others. A person's conduct is a remote harm when it is harmless but for the fact that it encourages another independent party to commit a harmful criminal act (a primary harm). For example, the broken windows thesis holds that minor incivilities (such as passive begging) are a precursor to more serious crime. Passive begging allegedly sends a signal to criminals that the broken windows area is unpoliced and is an easy target for crime. The beggars are criminalized to deter independent parties from committing crimes in the broken windows area. In this paper, I object to this kind of criminalization because it contravenes the requirements of fairness and individual responsibility,because it aims to punish people for the inadvertent consequences of their actions. I argue that a person should only be held responsible for another's criminal harm when she is normatively involved in it. What is needed are normative reasons for stating from an ex ante perspective that it will be fair to hold X morally responsible for S when it causes Y to do harm N. If this requirement is satisfied then there will be a prima facie case for criminalization. I argue that a person is normatively involved in another's crime when she knowingly assists or intentionally encourages that crime. In addition, a person can become normatively involved in another's criminal harm by underwriting it. I also assert that the fairness constraint should only be overridden as a matter of necessity to prevent harm of an extraordinarily grave kind and that the broken windows harm does not satisfy this requirement.

‘Constitutionalizing the Harm Principle', 27(2) Criminal Justice Ethics 3 (2008)

Dr. Dennis J. Baker — Wed, 12 Nov 2008 06:02:08 PST

In this paper, I argue that a constitutionalized Harm Principle could ensure that people are not jailed unless they deserve it. I do not aim to outline every possible type of bad consequence beyond harm that might be sufficiently serious to justify criminalization. Instead, I focus on criminalization that is backed up with jail terms and I argue that wrongful harm to others provides the only moral and constitutional justification for sending people to jail. Imprisonment harms the prisoner, so she should not be imprisoned unless she has caused proportionate harm to others. I argue that the sufficient conditions for sending an offender to jail are: (1) that the offender's actions have (or risk) bad consequences that are sufficiently harmful to make her commensurately deserving of penal detention; and (2) that the offender culpably (that is, with a state of mind somewhere along the intentional/reckless/gross negligence continuum) chose (aimed or attempted) to bring about those bad consequences or did so with reckless indifference. The lawmaker would need to demonstrate from the ex ante perspective that proposed offenses carrying jail sentences are a proportionate and fair way of dealing with the wrongs involved. Because jail (including short sentences of a few days) involves hard treatment (seriously harmful consequences for the prisoner) harm to others would be the only bad consequence of sufficient weight to justify a jail sentence. Jailing people for wrongful behavior that has harmless consequences would be an unjust and disproportionate response. In terms of understanding imprisonment (a physical deprivation of liberty) in the United States, it is better to refer to the Eighth Amendment of the Constitution than to the Due Process Clause. The Eighth Amendment, if read morally, could be invoked to strike down laws that carry prison sentences for wrongs that do not result in harm to others. This is because harming a person by subjecting her to the hard treatment that is involved in serving a jail term would be a disproportionate response unless the wrongdoer inflicted equivalent harm on others. I argue, that the Eighth Amendment should be interpreted in a way that accords with its overall moral aim or purpose. The Amendment's overall moral aim is to ensure that the state does not inflict unjust, oppressive, or disproportional punishments on its citizens.

‘The Harm Principle vs. Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation,’ (2008) 33 Australian Journal of Legal Philosophy 66

Dr. Dennis J. Baker — Wed, 12 Nov 2008 05:47:56 PST

In this paper, I consider Ripstein and Dan-Cohen's critiques of the 'harm principle'. Ripstein and Dan-Cohen have asserted that the harm principle should be jettisoned, because it allegedly fails to provide a rationale for criminalising certain harmless wrongs that ought to be criminalised. They argue that Kant's second formulation of the categorical imperative and his concept of 'external freedom' are better equipped for ensuring that criminalisation decisions meet the requirements of fairness. Per contra, I assert that Kant's deontological theory is about identifying morally wrongful and rightful conduct: it does not tell the legislature which of those wrongs justify a criminal law response in accordance with the requirements of fairness and justice. Some wrongdoers deserve censure and the stigma that results from criminalisation, but others do not. Kant's deontological theory does not limit the scope of the criminal law merely to those wrongs that deserve a criminal law response. Fair and principled criminalisation requires more than mere wrongdoing. I assert that it is only fair to criminalise wrongs when further normative reasons can be invoked to justify the use of the criminal law as a means for deterring the unwanted conduct. While 'harm to others' is not the only normative reason that can be used to demonstrate that it is fair to criminalise a given act, it is the justification that has the greatest reach. It would not be fair to criminalise mere wrongdoing (that is, every violation of freedom: trespass to goods etc. or every violation of the categorical imperative: every false promise etc.). Nor is it possible to distinguish one violation of freedom from the next, as freedom is not measurable. Thus, murder and trespass to goods would be equally wrong and equally criminalisable in Kant's scheme. A further problem with Dan-Cohen's use of the second formulation of Kant's categorical imperative is that it aims to be an inclusive criterion for identifying conduct that is prima facie criminalisable, but this inclusive approach does not explain the wrongfulness (or in Dan-Cohen's use of the categorical imperative the criminalisableness) of harming animals. In this paper, I demonstrate that the harm principle is able to meet the challenges raised by Ripstein and Dan-Cohen. I also demonstrate that it offers superior criteria for ensuring that criminalisation decisions are fair, just and principled than is offered by Kant's deontological theory.