Fair Labelling and the Unveiling of Personhood: Considering Non-Contact Offences and Law’s Theoretical Foundations
摘要
The principle of fair labelling holds that offence labels should accurately reflect the nature of the defendant's wrongdoing. This article considers that fair labelling may also unveil implicit conceptions of the infringed subject. For offences against persons, labels can reveal information about how personhood is defined, as these definitions shape what the law can recognise as wrongs against persons. Through examining image-based sexual abuse (IBSA) and other non-contact offences, this article considers whether criminal law may reveal a shift in how constitutional democracies implicitly define personhood. Atomistic personhood—defining persons through embodied rational capacity—creates recognition problems for non-contact offences because conduct not affecting body or mind cannot readily be recognised as direct person-infringement. Persons are inherently relational beings. This affects what harms and wrongs us: I would rather break a bone than lose a loved one. The systematic reclassification of IBSA from defamation to sexual offence, alongside parallel shifts for coercive control, stalking, and other nonphysical, technology-facilitated harms, is consistent with implicit movement toward a relational definition of personhood as a theoretical foundation. This article explores that possibility as one explanation for these labelling patterns. As digital technologies increasingly mediate how persons exist in the world, whether non-physical harms can be recognised as serious wrongs against persons depends on how personhood is defined. Attending carefully to the labels attached to offences, and to how those labels shift, could help make these foundational commitments visible and subject to critical evaluation.