Prohibiting Remote Harms: On Endangerment, Citizenship and Control

Abstract

So-called remote harms offences, which prohibit acts that do not cause harm, have become more and more important in present-day criminal law. On what grounds these acts may be criminalized is analysed in this article. Focussing on abstract endangerment offences, it is clear that the classical standard harms analysis does not provide for sufficient arguments on which to base the prohibition of these offences. The de minimis principle and the principle of fair imputation provide arguments that help to limit prohibiting abstract endangerment offences. This is also the case when a subjective element is introduced in an offence, especially intent. However, both principles and the subjective element in an offence can also be used to provide arguments for the prohibition of more abstract endangerment offences or a more extensive interpretation of these offences. The introduction of a voluntary abandonment defence may help to prevent the sanctioning of relatively innocent acts, but in the end it is the legislator that has to restrain itself from prohibiting remote harms too easily.