Simulated conduct is not the act it depicts, and the law should not punish depiction

The argument

Those who oppose prosecution argue that the case for it rests on a substitution. An assault in an overlay is not an assault; it is a depiction of one, rendered by software and seen through a display. Criminal liability has ordinarily required an act that interferes with a protected interest, and opponents hold that a representation does not interfere with anything in the way the offence it resembles does. Nobody is struck, nothing is taken, and no physical space is entered. What remains is an image the viewer finds frightening, offensive or distressing, and distress at an image is not, on this view, the subject matter of the criminal law. The argument is pressed by asking what the opposite principle would commit us to. If conduct becomes criminal because it depicts a crime vividly enough, then the threshold is realism rather than harm, and the same reasoning extends to games, films and novels, which routinely depict offences in detail and are not prosecuted. Opponents argue that no one has offered a stable line between a simulated act that would be charged and a simulated act that would not, and that in practice the line would be drawn by how disturbing a given depiction seemed to a given prosecutor. They accept that genuine wrongs can be committed using these systems, but argue that those wrongs are already offences under their own names. Threatening a person is a threat whatever the display; obtaining money by deception is fraud whether the misrepresentation is spoken or rendered; recording someone without consent is an offence in its own right. On this account nothing is left over for a new category of virtual crime except the simulation itself, and punishing the simulation is punishing depiction rather than conduct.

Premises

Counter-arguments

Supporters of prosecution answer that the depiction analogy fails on the point that matters, which is targeting. A novel depicts an offence against nobody in particular, while an overlay can be fixed to a named person's house and shown to their neighbours, and that difference is what the law of harassment has always turned on. They argue, too, that the claim that real wrongs are already covered concedes the case: if threat and fraud apply inside these systems, then people are being prosecuted for what they do in augmented reality, and the dispute is only about which charges fit. On that reading the opposing position protects simulations nobody wishes to prosecute while leaving the contested conduct exactly where it was.

Rejecting the premises

[Rejecting P1] Interference with a protected interest has never been limited to physical contact: threats, stalking and intimidation are offences precisely because fear is the injury, and nobody is struck in those cases either. [Rejecting P2] Realism is not the proposed threshold, targeting is: fiction depicts offences against nobody in particular, while an overlay can be aimed at an identified person in the place they live. [Rejecting P3] If existing offences already reach these systems, then prosecuting conduct carried out in augmented reality is already appropriate, which is what the position set out to deny. [Rejecting C] The argument establishes that simulation as such should not be criminal, not that conduct carried out through augmented reality should be immune from prosecution.