Revenge Pornography, otherwise known as imaged based sexual abuse, is the act of sharing intimate pictures or videos of someone either on or offline without their consent. It has been a criminal offence in England and Wales since 2015 and is currently punishable by up to two years imprisonment.
Sharing intimate, sexual images of another person without their consent is a heinous violation of their privacy and rights of control over their own body. Often the perpetrator is a former partner who has chosen to share sexual images which were initially consensually provided in good faith during a relationship.
There has also been an increase in online gangs luring people into providing explicit images, who then use the threat of wider circulation to blackmail their victims. In other cases victims have been coerced into taking part in sexual activity, either through physical or psychological intimidation, and are often unaware of a camera having been present recording them. This is sometimes referred to as ‘sextortion’, and has sadly been directly linked to suicide attempts.
The criminal offence
The increase in smart phones and instantaneous access to the internet means that a perpetrator’s impulsive decision can have a devastating impact within seconds. Once an image is shared the sender has little-to-no control over who can now see and share that material.
Previously any prosecution for revenge pornography hinged on whether the particular case met the criteria of restrictive pre-existing criminal offences, such as copyright infringement or harassment, but following increased public awareness of the issue, a distinct criminal offence was created under section 33 of the Criminal Justice Act 2015.
The criminal offence broadly has three elements which need to be proven:
- Disclosure of a private sexual photograph or film;
- Without the consent of the person depicted; and
- With the intention of causing that individual distress.
“Disclosure” is given a wide interpretation and encompasses private messaging to friends, posting images via the internet or even distribution of printed material. Similarly “without the consent of the person depicted” is broadly defined, and this includes the wider distribution of pictures which were freely provided in a private context. However, there are some elements of this crime which are less clear.
Whether or not a photograph is sexual may at times be easy to identify, although the legislation does not include photographs that are completely computer generated or that could only be considered sexual due to alterations. This means that pseudo-photographs, for example were a person’s head is transposed to an explicit picture of somebody else, would not be caught under the new criminal offence.
Further, a key element of the law lies in proving that it was the perpetrator’s intention to cause distress to the victim, the law makes it clear that it is not sufficient that embarrassment or humiliation is a natural and probable consequence of sharing the sexual images. The intention to cause distress is looked at from the perspective of the perpetrator, and it could therefore be argued that this additional evidential hurdle distracts focus from the basic act of knowingly sharing personal, sexual images without consent, and the clear risk of monumental impact.
Worryingly there are a number of websites which provide a platform specifically for the circulation of revenge porn imagery, which can also include further details about the person being depicted, such as their name and address. Whilst criminal proceedings can now be brought against the person uploading the material, website operators are not compelled to take any action by virtue of the criminal offence having taken place. Some such website providers have reportedly ignored requests for images to be removed, which can often be the main or sole motivation of the victim.
How is this working practically?
The new criminal offence is a serious one, carrying a maximum sentence of two years imprisonment. There have now been a number of successful prosecutions, and there are various news articles which show the courts’ broad consistency in handing down sentences of suspended or immediate prison sentences.
Despite the reported successes there are still some concerns over victims’ access to justice. Whilst this new law ought to act as a deterrent and has allowed for more prosecutions to be brought successfully, the latest figures suggest that the proportion of cases involving revenge pornography resulting in criminal charges has fallen to 7%. This is despite a significant increase in the number of complaints being made.
The figures also show that one in three victims chose to withdraw their complaint. Some suggested that there was a lack of support from the investigating officers, but another key factor could be that victims are not provided with automatic anonymity in the same manner as those who have suffered a sexual offence. When bearing in mind that revenge pornography involves the removal of a victim’s right of control over their person, and the potential for significant trauma that this can cause, it is ridiculous to allow anyone who so wishes to report on the criminal proceedings without restriction.
Recently the North Yorkshire Police and Crime Commissioner launched a petition calling for victims of revenge pornography to be granted automatic anonymity. I would urge anyone who hasn’t already done so to consider pledging their support.
As well as criminal investigations, victims have the option of further redress by way of civil compensation. With such a new and emerging area of law the parameters are not always clear, but there is the potential to bring a case on the basis of misuse of personal information, harassment, intentional harm, and other legally recognised and actionable claims.
Embarking on a civil claim for compensation isn’t always an easy choice. That is why it is important that victims speak to a specialist solicitor who can ensure that they receive legal advice whilst remaining in control.
The introduction of a criminal offence surrounding revenge pornography has raised further awareness of the issue and led to a significant increase in successful prosecutions, and to that end it has been a significant success. The law now provides a vehicle to ensure that such gross violations of trust do not go unpunished. There are, however, some ongoing hurdles which must be overcome to ensure that all victims are able to engage in the justice process, and there must be a continued push to ensure that victims feel empowered to obtain any and all redress which is available to them.