In England and Wales complainants in criminal cases involving rape and sexual offences have the right to anonymity and are likely to be granted special measures when attending court.

The right to anonymity has been in the news in the last week following comments by justice minister Philip Lee that the government could consider extending similar rights to complainants in cases involving revenge pornography.

I am delighted that the government is considering extending the right to anonymity and sincerely hope that this can be introduced as soon as possible.

In my view, allowing complainants to remain anonymous in cases involving revenge pornography is a logical and necessary step if authorities are sincere about tackling this serious and growing problem and encouraging people who have been affected by revenge pornography to come forward and report their experiences.

Revenge pornography

Revenge pornography is the posting of private sexually explicit images online without the consent or knowledge of the individual in the pictures with the intention of causing distress to that person.

Images are sometimes shared on dedicated revenge pornography websites and once images are online it can be very difficult for the subject of the pictures to have them removed or taken down.

Revenge pornography can have devastating consequences for the individuals involved. Aside from the embarrassment and distress of having private images shared without consent, revenge pornography can cause psychiatric injuries and affect a person’s relationships, career and future job prospects. In an increasingly online society, it can be extremely harmful for anything damaging to be posted online without an individual’s consent.

Unfortunately, revenge pornography is a growing problem in modern society.

Figures obtained from police forces in England and Wales in April 2016 showed that over a 12 month period more than 1000 offences of revenge pornography were reported to police. This is likely to be just the tip of the iceberg as inevitably many cases will go unreported due to embarrassment and a lack of knowledge that this behaviour constitutes a criminal offence.

Revenge pornography is particularly problematic amongst younger people. Around 30% of the cases reported to police up to April 2016 involved individuals under the age of 19. The average age of complainants in cases involving revenge pornography is 25.

Thankfully, attempts are now afoot to tackle revenge pornography.

Following a successful campaign calling for revenge pornography to be dealt with seriously and consistently, revenge pornography was criminalised in February 2015. Those found guilty of posting sexually explicit images or videos without an individual’s consent can now be sentenced to up to two years imprisonment. There is overlap with other older offences and offenders can also be convicted of criminal offences including harassment and sending malicious communications.

Over the past 12 months there have been more than 200 prosecutions involving revenge pornography. Whilst this is a start there is of course more to be done to help those affected and prevent further offences in the future.

Calls for anonymity

The Sexual Offences (Amendment) Act 1992 and the Youth Justice and Criminal Evidence Act 1999 entitle complainants in cases involving certain sexual offences to anonymity in the press. Once a complaint of sexual offences has been made the media is prevented from publishing any information or details which could allow members of the public to identify the complainant. Under the Contempt of Court Act 1981, criminal courts have further powers to impose a permanent ban on the publication of any name or details which relate to a case which has been before the court.

Complainants in cases involving sexual offences are also likely to be eligible for special measures when attending court to give evidence. Special measures can include giving evidence via video link or from behind a screen and the removal of judges’ and barristers’ wigs and gowns to make giving evidence less intimidating.

At present, complainants in cases involving revenge pornography are not entitled to anonymity as revenge pornography is not listed as a relevant offence in the legislation mentioned above.

MP Maria Miller has been at the forefront of the campaign to criminalise revenge pornography and recently called for anonymity to be extended to complainants in revenge pornography cases. In response to Miller, justice minister Phillip Lee indicated that he was interested in Miller’s comments and invited her to write to him so that he could consider the issue in more detail.

In my view extending anonymity to complainants in revenge pornography cases is a necessary and logical step. The reason that revenge pornography is such a serious problem is because it causes great distress and embarrassment and can affect the individuals involved in all aspects of their life. Posting private images online without consent, strips an individual of their freedom and choices and can leave them feeling vulnerable and out of control.

With this in mind, it is inevitable that individuals will be less likely to report offences or co-operate with police where there is a risk that their identity could be published and the images which were shared without their consent might become more widely known about.

Figures show that around 61% of the cases of revenge pornography reported to police resulted in no further action being taken. Information obtained from police forces suggests that one of the key factors underpinning this was complainants withdrawing their support for police action after the initial report.

Clearly more needs to be done to foster an environment where individuals feel comfortable and secure to pursue reports without the fear of further distress. Anonymity for complainants is an important step towards this.

Civil claims

Individuals affected by revenge pornography may be able to bring civil claims for compensation against the perpetrators of offences or those responsible for the perpetrator.

The law surrounding civil claims for compensation is fluid and has developed over many years. Over the past 12 months Bolt Burdon Kemp has been at the vanguard of this and has pushed the boundaries of what it is possible to bring civil claims in relation to.

In 2015 we helped a client to bring a claim for compensation in relation to sexual and emotional abuse which she was subjected to by a teacher. In this case the court found that the teacher had encouraged our client to share sexually explicit images and messages and held that this alone was an intentional infliction of injury which meant that our client was entitled to compensation.

In other recent cases the court has held that the fact that the perpetrator of abuse has taken and misused photographs and videos is an aggravating feature and means that individuals should receive increased compensation. This principle will be applicable in claims involving revenge pornography. The misuse of private images of course causes terrible distress and embarrassment to the subject of the images and in itself can cause or exacerbate serious psychiatric injuries. This is likely to be even more serious if individuals are unaware how widely images have been spread, who might have seen them and whether images remain in cyber space and might be viewed again in future.

Individuals affected by revenge pornography deserve to be compensated for the distress they have felt and any injuries they may have sustained.

Anonymity and special measures in civil claims

We appreciate that bringing a civil claim for compensation can be a stressful and distressing time. Individuals may be concerned about coming into contact with the perpetrator of offences or the case becoming wider knowledge. In many of our cases we seek to minimise distress to our clients by asking the court to grant our clients anonymity so that they will be known by a series of random initials in place of their name. We also ask for their address and identifying details to be concealed and a restriction on what can be reported by the media.

Whilst we always do our best to settle our clients’ claims out of court, on occasions cases can go to trial. This can happen for example if the other side does not co-operate or is not prepared to put forward realistic settlement offers.

In order to ensure that our clients do not come into contact with the perpetrators of offences we can ask the court to grant our clients special measures in court. Whilst special measures have been available in criminal cases for some time they are a relatively recent development in civil courts. In 2015 the court granted special measures to two of our clients in separate cases which went to trial. Our clients were permitted to give evidence from behind a screen so that they did not have to see the Defendant. When they entered and exited court, the room was cleared to minimise the risk of them coming into contact with the Defendant.

My colleague Rebecca Sheriff has previously blogged on cases where we have sought anonymity and requested special measures for our clients.

Conclusion

The rising number of arrests for offences relating to revenge pornography highlights the growth of this problem and the pressing need for authorities to take greater steps to deal with revenge pornography.

The best way to tackle this issue is to create a society where individuals affected by revenge pornography feel comfortable to report offences to police without fear of further distress or embarrassment or their case becoming more widely known.

Anonymity for complainants is the best and most logical way of achieving this.

Individuals affected by revenge pornography deserve to be compensated for their distress, embarrassment and psychiatric injuries. Again these cases need to be dealt with sensitively and confidentially so individuals are not at risk of further hurt and distress.