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 offences; 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.
INTRODUCTION TO ONE OF MY CHAPTERS IN THE FORTHCOMING VOLUME “CYBERCRIME AND ITS VICTIMS” EDITED BY ELENA MARTELLOZZO & EMMA A. JANE