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Abstract:
What is the nature of the wrongfulness of image-based sexual abuse (‘ibsa’)? That is the main question addressed in this thesis. The answer is found to depend on the understanding of personhood underpinning the interpretation of wrongs. It can be summarised as follows: on atomistic personhood, ibsa is a moderate infringement of autonomy, sexual integrity, privacy, and positive freedom of expression. There is limited theoretical scope for finding the absolute wrong of failing to minimally respect personhood. On relational personhood, ibsa is found to be much more seriously wrongful: it is a severe infringement of autonomy, sexual integrity, privacy, positive and negative freedom of expression, and can constitute a breach of trust. The absolute wrong of failing to minimally respect personhood can readily be found. On both approaches to personhood, ibsa is understood as part of the continuum of violence against women and, as such, as reinforcing and being reinforced by inequality.
A central claim of this thesis is that personhood is a fundamental element of interpreting wrongs against persons. Personhood is not typically appreciated as such, nor is wrongfulness usually at the focus of discussion when considering justified criminalisation. This thesis first sets out the justified scope of the criminal law in liberal democracies as demarcated by harmful, public wrongs. Wrongfulness is considered as an underexplored, core part of criminalisation theory. The thesis presents an original analysis of the significance of personhood in the context of interpreting wrongfulness and justifying criminalisation. That is followed by a discussion of atomistic and relational consent, and the role of (lack of) consent in finding wrongfulness. This thesis then uses the preceding analysis to interpret the wrongs of ibsa both on an atomistic and on a relational understanding of personhood, thus offering a two-part answer to the main question of this thesis. Finally, the thesis explores the implications of its findings on criminalisation theory and the criminalisation of ibsa. It defends the view that the law should take a relational understanding of personhood and that ibsa should be criminalised as a sexual offence.
