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Hi. I’m a law student. And in this weird sort of pseudo essay slash rant, I’m going to explain the legal principle that allows us to determine which actions and behaviours should be made illegal and why.
Most people think, understandably, that the law is based on what is ‘morally wrong’. Murder is, indeed, morally wrong. So is rape, assault, battery, theft, etc.
But societal perceptions of what constitutes a ‘moral wrong’ changes constantly! Being gay was seen as morally wrong for many centuries in western countries. Indeed, it’s only in the past 50 years that social perceptions of LGBT+ indentities have started to change for the better.
This is why legislators and legal theorists do not actually decide the law based on morality, but harm . To be clear, this is not my opinion, this is how the law is objectively worded in statute (meaning written law).
Basing the law on the principle of harm means that, instead of asking: is this morally wrong? We ask: does this action cause harm to a person/persons? What kind of harm? To what extent? From these questions, legislators can and do work backwards to decide the degree of consequence necessary for the harm done.
Now you try! Think about the laws you know. Ripping off copyrighted works is morally wrong, yes, but the actual reason it is illegal is because it causes harm to a person’s income when you directly rip off their logo/novel/artwork/etc.
Rape is a SERIOUS moral wrong. But the actual reason it is illegal is because of the harm caused to the victim of rape, including any physical damage and the long lasting psychological effects. So is murder, because being dead is, er. A pretty fucking serious harm. So is medical negligence, so is fraud, so is theft, and so on and so forth.
The takeaway here is that every part of the law, from tort to contract to public to particularly the criminal law, is based on THE TYPE AND EXTENT OF HARM CAUSED TO A REAL PERSON (or corporation but that’s irrelevant to this essay).
So why does this principle of ‘harm’ matter?
It matters because we can now objectively distinguish between what is a criminal matter, and what is a social matter.
A criminal matter is an action that causes direct harm to a real person and is deserving of punishment (or other restorative avenues), and a social matter is merely a societal moral ‘wrong’.
The former is thankfully, quite objective, and the legal question that follows the harm principle most often goes something like this:
‘But-for this person’s actions, would the alleged harm (the type and extent of which would be discussed elsewhere) have been inflicted upon the victim?’
In plain English: if this guy hadn’t massively, royally cocked up, would this shitstorm have gone down in the first place? If no, guilty. If yes, not guilty.
So what? I hear you ask. Well, I’ll explain what with the knowledge we have so far.
Criminal matters are criminal because we as humans have a duty to prevent harm to our fellow human. But because of miseducation about the law, most people have a misconception that the law is based not on harm, but social moral wrong.
This is genuinely dangerous, and it is dangerous because people then believe that they as individuals are qualified to dispense justice on the basis of their social beliefs, rather than an objective evaluation provided by legal experts who have spent decades of their life dedicated to researching when and where we draw the objective line of ‘harm’.
Social norms are about as solid as water. They are constantly shifting, fluctuating, and evolving with the tide of politics and socioeconomic changes and technological advances and all these other factors that wrap around our species and alter our definition, each and every single day, of what it means to be a good, morally upstanding human. As a society, we simply cannot base anything as perpetually upstanding as the law by the standards set by social morals on any given days. Otherwise, judges and counsels and clerks would be drifting case to case like flyers in the wind, ungrounded and uncertain as to where they and their clients stand.
The law is not perfect. But it offers certainty. And it offers a basis from which we can work to both evaluate our current legal standards and enact change. I understand that you, reader, may have your own grievances with the law. But there are centuries of wisdom hidden in the cracks and crevices, centuries of trials and errors (in the phrase’s most literal sense) and a litany of jurisprudence and philosophy all melting into and sealing those holes between clauses and ratios and hansard like mortar to brick.
The point is. You are free to disagree with the actual substance and contents of the law. As do I. A lot. (On an unrelated note, fuck the Tory government and their [redacted] litany of borderline fascist bills.)
But the framework of the law! The framework of the law is where judges and lawyers have gone running head first into walls for decades and centuries and millennia. But each and every single time, they turn a little left, a little right, working their way a little closer to the center where some sort of theoretically universal formula for which each subsection of the law can finally lay their weary bones to rest.
I personally don’t think a perfectly incontestable ideal framework even exists. But what I am presenting to you, dear reader, in this (way longer than intended) essay is our current framework. It’s the best we’ve got, and it’s the best our legal best have got, or at least implemented at this moment in time and space.
And the best we’ve got for evaluating what and what not should be condemnable in society, is a whole lot better than whatever the fuck fandom ‘antis’ have been cooking for the past five years.
To any antis reading, thank you for making it this far. Genuinely. I appreciate you taking the time to read a standpoint contrary to yours for the sake of challenging your own viewpoints, even if it goes full circle by the end of this anyway.
However, I’m going to be blunt now. Your feelings are not the law. Your feelings are not even a basis with which you are qualified to dish out non-legal punishment.
Your feelings are based upon socially determined moral wrongs. The law is based upon harm. And even when evaluating activities or behaviour that are, technically legal, the principle of harm consistently serves as a much more suitable measure of what constitutes a harmful activity or behaviour than the ephemeral standards of what is ‘morally wrong.’
Case in point. Someone sending a death threat over the internet is not illegal in and of itself, but it may cause direct harm to the real, human recipient, and is thus socially condemnable. Not because of moral wrong, but because of harm.
The law around doxxing is cloudy in some countries, but it is nevertheless condemnable either way because it causes direct harm to a real person’s safety and psychological state of mind (anxiety, depression, etc. are common side effects). Not moral wrong. Harm.
Antis base everything their ideology off of what is ‘morally wrong.’ But as we’ve long since established by now, moral wrong has absolutely nothing to do with the current framework of the law. ‘Moral wrong’ is a fancy, very agreeable sounding term used to disguise what is truly meant, which is: ‘this is a relatively popular social opinion.’ And often in addition: ‘…this is also an opinion I personally hold.’
It is a popular social opinion, for example, that self-cest fiction is morally wrong. How vile, how reprehensible the thought that someone could entertain the idea of making out with one-self! How despicable! How morally wrong! But self-cest in fiction does not, and has never, caused direct harm to a real person. It cannot! You physically cannot have sex with yourself! It is quite literally impossible to cause harm to a real person in this scenario. Therefore, no condemnation of this action is required under the harm principle.
Alright, I hear you say. But what about all the gross things I keep seeing on Ao3, like incest? Pedophilia? Rape? Abuse? All of these acts cause direct harm to a real person!
And to that I say…
Duh, fucking obviously?
Did you think I would disagree or something? I even mentioned some of the examples earlier!
But what I believe you are actually trying and deliberately failing to refer to is the representation of these crimes within fiction. I know antis love to remove the prefix of ‘fictional’ for the purpose of relying on the objective fact that the real version of these crimes are indisputably harmful, but this common and deliberate omittance serves us no purpose in being able to evaluate whether their fictional representations can or do cause harm to a real person. So, from now on, we’ll refer to them properly: fictional depictions of rape, incest, gore etc.
Because believe it or not, there is actually a difference, which I’ll expand upon soon.
So do fictional depictions of (as an example, let’s go for one of the worst harms in real life) rape, directly cause harm to a real person?
Let’s go through the steps.
Right off the bat, we can ascertain that no, no real person is going to be directly harmed the action of rape within the story, because the fictional characters involved are not real and so cannot endure real physical or psychological harm. Not least because they do not have a real body, or a real brain, or all the squishy organs we as real people do.
[Side note: I have harsh words for such stories involving real people and celebrities, and I’m not covering them here because I have no interest in defending them. This is an essay about defending fiction. Real, identifiable people are not fictional, and you’ll probably (and rightfully) get a good few nights in the slammer or a hefty fine for writing a incest fic starring your neighbour Arnold and his cousin Steve under some obscure sexual offence if they ever found out. But I digress.]
But as we all know, the issue at hand isn’t quite so simple or easily concluded.
And as we all also know, the real million dollar question of fandom discourse is:
‘Do fictional depictions of rape (or incest, paedophilia, abuse, etc) encourage the causation of harm to a real person?’
To answer this pretty vague question on an objective level, let’s remodel it to the standardised legal framework I mentioned earlier using an example.
Imagine with me, if you would, 34 year old librarian and mother of four (three cats, one dog): one Sarah Smith, who after many months of dozing off at her desk, finally gets around to publishing her grand masterpiece: a 200k non-con fan-fiction on archiveofourown dot org.
Now for the ‘but-for’ test (yes that is its actual legal name).
‘But-for Sarah publishing the non-con fan-fiction in question, would X have occurred?’
Now hold on. Ah. Yeah, I see. We have a problem here.
The ‘but-for’ test is designed such that when a case is presented, the court can apply the test directly to the facts of an existing case. Which means we need to add another fictitious example onto this already fictitious example for the test to work.
(Do you see how many layers of made up hypothesising we have to go through to even begin to entertain the ‘logical’ basis of anti ideology? Just… take note.)
Alright. So if Eve were a victim of rape by Adam, who read Sarah’s fanfiction and decided to go ahead and recreate the fictional events depicted, then the full legal question would go something like:
‘But-for Sarah publishing the non-con fan-fiction in question, would Adam have committed the crime of rape (thus causing direct harm) to Eve?’
[Again, if you haven’t yet noticed, this is a made-up example. Quantitative evidence of real life incest/pedo/rape harm caused as a direct result of online fanworks is practically negligible, but even so I will cover the possibility more in depth later].
We know direct harm has been caused by Adam towards Sarah, because as we established earlier, rape always causes direct harm to the victim of the act. But the real question we’re trying to get at here, is (in plain English):
‘If Sarah hadn’t written the non-con fanfiction, would Adam have raped Eve anyway?’
Right. Okay. Pause.
Now this, this right here, is the exact focal pinpoint of where and why I fundamentally disagree with anti ideology. And now that we’ve finally arrived at this point, this is where I am going to boldly state my departure from the objective road we have followed thus far and firmly assert a viewpoint that I feel very strongly about.
If you answer no to this question, to me, you are no better than a rapist apologist.
And depending on the facts of the matter, an incest apologist, or a paedophilia apologist, or a murder apologist, or an abuse apologist, and so on.
If you place causation and blame for the harm perpetrated by an autonomous, living, breathing, real person onto another living, breathing real person, onto the happenings of a fictitious universe, you are essentially absolving, even partially, the perpetrator of responsibility for their actions.
We see this in the news all the time. Video games did it. This bestselling author’s novel did it. This particular song inspired them. But few news outlets have the balls to say: this fucking asshole of a kid, with every bit of physical, autonomous control over his own body, decided to waltz into school and murder a classroom of children. Obviously the leniency of media representations depend on the identity of the perpetrator, but when it is a relatively privileged individual at hand, rarely do outlets actually hold the perpetrator of heinous crimes to account.
To instead answer yes, to believe and to know that Adam would have committed rape regardless of whether Sarah had published a fanfiction or not, is to hold rapists, abusers, etc. to account. It is to look them in the eye and say: no. No, you cannot just pin your actions on everything and everyone around you. You chose a victim, and you chose to harm them, and you chose to face the consequences from the moment you decided to commit that act and you chose to be held to account like we are holding you to account now.
Luckily, a case the likes of which I exemplified has yet to emerge. But even if we were to ask its more popular sister question, which is: does fanfiction have the capacity to encourage people in real life to perpetrate the harms depicted within these fictitious events? The answer is one and the same as before.
Hold people to account. This is the root of why anti logic is so dangerous. If you fail to draw some line between fiction and reality, as nuanced and gray as that line may be, then you risk excusing the very real harms perpetuated in our reality without even realising what you’re doing.
For example, I have had many a humourless laugh seeing antis defending their own problematic ships over the past few months. Rather than maturely admitting that they enjoy or even tolerate seeing a fictional depiction of [insert problematic trope] and that it has no bearance on their propensity to commit said harm in reality, some have worked themselves into a hysterically amusing knot in which they try to justify why [insert problematic trope] does not make their ship a ‘proship’ by means of accidentally excusing or justify that particularly harmful aspect of the ship as it exists in not just fiction, but also reality.
Great job. Really. Way to trip over your own feet! But seriously, learning how draw a line in the sand between fiction and reality is a vital progress marker in your lifelong journey to maturing your outlook as a human being. It means being able to say: this thing is harmful. I know it is harmful in reality. And while it may 'harm' a fictional character, they are not real, and thus no harm has been inflicted upon a real human being merely by depicting this thing in a fictional setting.
(And perhaps, in addition: in the near-zero circumstance that this fictional thing ever actually does ‘cause’ harm to a real person, I would personally go and curb stomp the perpetrators’ sorry ass before dragging them to the nearest slammer for life).
Real people cause harm to real people. And those real people should be held to account.
That, to me, is the most egregious oversight caused as a result of anti ideology.
The second egregious oversight is the mass ‘dehumanisation’ and criminalisation of the perceived enemy target (labelled ‘proshippers’) which is the second largest emotive driving force of the anti movement behind the (now you know) ignorant idea of a standardised ‘moral wrong’.
…Buuut I’m not going to be covering all that in this essay because I am a lawyer in the making, not a sociologist, and I have no shame in putting my hand on my heart and admitting the limits of my expertise.
I sincerely wish I could do the topic justice, but luckily for me someone, or rather some-two, have! @SamAburine and @KuroAoki have both written extensive, peer-reviewed papers on the sociological background of antis and their methods and modes of harrassment. Having read both in full, I cannot recommend them enough. But again, this is where my (iOS notes app looking ass) work stops and more well-structured and officially reviewed sources begin.
And so, I believe a conclusion is due.
Even with everything this essay has covered, I want to be clear that nothing in life is quite so black and white. I may have presented myself as such for the sake of this extraordinarily long argument, but ultimately, I’m just a person too. I hate lolicon. I don’t mind step-cest, but blood-related incest in fiction grosses me out. I favour a bit of non-con, but only when the canon power balance between characters is inverted or I’ll get a bit of an ick and close the chrome tab. We all have preferences, we all have nuances, we all have our likes and dislikes and squicks and genuine triggers.
Nothing is black and white. Nothing is black and white, and I cannot help but reiterate this so vehemently because when you dedicate yourself to viewing the world in shades of gray, you will develop a much deeper understanding of what ‘harm’ really means, what it does, who can perpetuate it (anyone and everybody btw) and the many forms harm can take, as opposed to someone who merely views life through the crusted, tiny window that is an ultimately ephemeral set of social moral rights and wrongs.
So. Is there even a solution to all this?
What on earth can we possibly do to encourage people to reframe their binary way of thinking about media and recognise the nuances in what we deem as morality and harm?
…Oh, you know exactly what we can do.
MEDIA LITERACY AND DISCUSSION WOO WOWW OH YEAH UH HUH!!!!!!!!
OH YEAH RESEARCH AND SELF EDUCATION BREAK IT DOWN!!!!!!
MHM MHM DO THE CRITICAL THINKING SLIDE!!!!!!!!!!!
YEAH! AH! OH! YUH! GET IT-
Sorry. You get the point.
But we’ve tried, you cry out! We’ve tried! These people. Just. Don’t listen.
Yeah, I know. It’s hard. Feel like a war zone these days. Modern fandom is real a no man’s land, and sometimes it feels like all our time in it is spent darting across the call-outs and doxxing and death threats that constitute half buried land mines dotted around the internet.
But guess what I did about sixty minutes ago? I received this tweet in my notifications…
‘ok but why is it morally wrong idc if its physically possible because i know goddamn well ships are fictional and stuff unlike proship that has a valid reason for it to be problematic’
…And instead of chimping out at this kid in a limited character reply, I took a long breath, opened the notes app, and wrote a fucking Greek epic of a think piece which, even if the recipient should choose to ignore it, might at least prompt a few others to get a ball of discussion rolling.
Try! Try! All you can do is try. And when you’re done trying, and you’re tired for the day, take a break. Switch tactics. Don’t bother! Talk to your friends. Make stuff. Get creative. Discuss the history, the social impact, the future of fandom. Discuss fanfiction ideas, tropes and literary inspirations. Open a sketchbook and get sketching! Buy art, sell art, trade OCs and gift icons. Make YouTube videos, compilations, video essays, crack edits and AMVs.
Just get creative.
And when the little ones get tired, when they’ve worn out their throats bickering back and forth in the garden for hours on end, clawing tooth and nail for any eye they could reach, they’ll drag their muddied feet through the house.
They’ll reach the kitchen door. The sounds of laughter will echo out, scribbled, inky scraps littering the floor like ribbons as they’re brushed off a table awash with novels and canvases and donkey-eared zines and piles of manuscripts teetering until it all spills into peals of passionate bellows and warmth.
They’ll watch you, eyes wide as stars.
For once, they’ll fall silent.
Their chest will beat faster than it has in years.
They’ll take a tentative step past the door sill.
And they’ll ask for a seat at the table.
And like an archaic, rusted, bone-dry machine locked irreversibly on auto mode from decades of use, you’ll have pulled a chair aside and patted the smooth wooden surface before you could even think to move.