‘Revenge porn’ is a misnomer
10 March 2021
Why we should replace ‘revenge porn’ with ‘image based sexual abuse’ and reform the mens rea of the Criminal Justice and Courts Act 2015
The digital world is becoming an increasingly dominant part of daily life. This has been thrown into sharp relief by the current public health crisis, which has seen almost every facet of our lives move online; from socialising, to work, to healthcare, to dating and sex. However, regulation of the digital world is struggling to keep pace with technological change (see the UK Human Rights Blog’s technology section for commentary on this phenomenon). Lawmakers simply cannot keep abreast of the reforms necessary to protect victims from online criminality. One area in which Parliament has made some progress is the sharing of private sexual images, or ‘revenge porn’, as it has come to be known. This article will outline recent developments in the law around sharing of private sexual images; interrogate the terminology used in this area; and suggest reforms to the relevant legislation.
In 2014, the Crown Prosecution Service published guidelines on existing legislation, in an attempt to support convictions for the crime of sharing private sexual images without consent.[1] However, after mounting pressure from campaign groups, the Criminal Justice and Courts Act 2015 (‘the Act’) created the offence of ‘Disclosing private sexual photographs and films with intent to cause distress’, which is punishable by up to two years in prison.[2]
More recently, legislation around sharing private sexual images became the subject of a new campaign, seeking to make the act of threatening to share private sexual images a criminal offence. This campaign was supported by organisations such as Refuge, 44,615 of whose supporters wrote to government ministers requesting a change in the legislation.[3] A reality television star, Zara Mcdermott, added her voice to this campaign in a BBC documentary entitled ‘Zara McDermott: Revenge Porn’.[4] In the documentary, Ms McDermott recounts two instances of having private sexual images shared without her consent. The documentary also covers the harrowing story of Damilya Jossipalenya, who was at university in London when she jumped to her death from the window of her flat. Ms Jossipalenya’s suicide followed a campaign of harassment by her boyfriend, who had threatened to share a video of Ms Jossipalenya with her family in Kazakhstan. This segment of the documentary ends with Ms McDermott explaining why she believes the threat to share private sexual images can be equally as damaging as the act of sharing them.
The Domestic Abuse Bill will be enacted later this year and will include wide ranging reforms, such as a statutory definition of domestic abuse. Just four days ago, the government announced that it will also include the criminal offence of threatening to share sexual private images. By all accounts, this is important progress for survivors of domestic abuse.
However, there is a current of gender-based discrimination running through the legislation and language around this topic.
‘Revenge porn’ is a term which has been widely adopted to describe the action of sharing private sexual images of a person without their consent. Not only was it the title of a BBC documentary, but it has been used by the government itself, in material used to inform the public about the offence.[5]
This terminology is highly problematic. The word ‘revenge’ indicates that the victim of the crime has committed some form of trespass against the perpetrator of the offence. Indeed, ‘revenge’ is defined as: ‘the action of hurting or harming someone in return for an injury or wrong suffered at their hands’.[6] Use of the word ‘revenge’ reflects systemic sexism and victim-blaming, which implicates female victims of sexual offences in the abuse and violence they suffer. It deflects blame away from perpetrators. This is, of course, not a new phenomenon. Blaming women dates at least as far back as Adam, Eve and the apple. It is essential that we apply scrutiny to the language used to describe women, sexual offences and domestic violence, to ensure it is helping to protect women rather than contributing to damaging stereotypes.
The use of ‘porn’ is similarly inappropriate. ‘Pornography’ commonly refers to images created created for the purpose of being widely distributed. Porn actors, who are themselves stigmatised sex workers, do not benefit from their work being conflated with a criminal offence. The victims of so-called ‘revenge porn’ also do not benefit from images of them being conflated with those which are created and shared for profit.
The reluctance to place full responsibility on the perpetrators of this crime appears to have influenced the elements of the offence itself. It is framed in the Act thus:
(1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—
(a) without the consent of an individual who appears in the photograph or film, and
(b) with the intention of causing that individual distress.’ [my emphasis].[7]
The mens rea (or ‘mental element’) of the offence requires that the person who shared the images did so with the intention of causing distress. This is a difficult element to prove. In many circumstances, without recorded dialogue or threats around the sharing of the imagery, it will simply not be possible to evidence this intent. Not only is this element difficult to evidence, it is also not always present. Private sexual images may be shared for other purposes, such as boosting the social standing of the perpetrator or making financial gains from the images.
But where such images or footage are shared without consent, that should be sufficient for the act to be considered an offence. Indeed, Ms McDermott reflects in the BBC documentary that she is unable to say for certain that either of the instances of ‘revenge porn’ against her were committed for the purpose of causing her distress; all she knows is that intimate images of her were shared against her consent and it had a devastating impact upon her life. This is perhaps because the sexual shaming of women which routinely takes place in society is not always rooted in revenge or malice against that individual woman, but rather a wider culture of holding women to a higher standard, policing women’s sexuality and exacting punishment on women who fail to meet the contradictory expectations placed upon them.
It is relevant that in December 2020, after the New York Time revealed that videos on the pornography website Pornhub involved minors and victims of sex-trafficking, Pornhub removed all content uploaded by unverified users, reducing its material from 13 million to 4 million videos.[8] Clearly, greater emphasis needs to be placed on those sharing sexual imagery to ensure that the subjects give free, informed consent and are over 18 years of age. The intention of the person sharing the images should be irrelevant if there is no consent.
Indeed, the statutory defences provided within the Act are at odds with the mens rea. It is a defence to a charge of sharing ‘disclosing private sexual photographs and films with intent to cause distress’ if it can be shown that the perpetrator:
- ‘reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime’ (section 3).
- ‘the disclosure was made in the course of, or with a view to, the publication of journalistic material, and he or she reasonably believed that, in the particular circumstances, the publication […] was or would be, in the public interest’ (section 4).
- ‘he or she reasonably believed that the photograph or film had previously been disclosed for reward, and he or she had no reason to believe that the previous disclosure for reward was made without the consent of the individual [who appears in the photograph or film]’ (section 5).
It is hard to envisage a circumstance whereby a person shares private sexual images without consent but with the intention of causing distress, yet can reasonably argue they thought the person in the image had given consent, or that they believed sharing the image was in the public interest. The addition of the requirement for intending distress appears at odds with the rest of the legislation and an entirely unnecessary component of the offence.
The solution?
1. Eradicate use of the term ‘revenge porn’ and adopt the term ‘image-based sexual abuse’, which more appropriately reflects the gravity of the crime and the impact upon the victim, without engaging in victim blaming. The individual offences of threatening to share and sharing private sexual images without consent both fall under this umbrella term.
2. Remove the requirement to demonstrate an intention to cause distress, and replace it with the same mens rea used for other sexual offences: a lack of reasonable belief in consent (see, for example, Sections 1-3 of the Sexual Offences Act 2003). This would prioritise the right of women to choose who is privy to their private sexuality and place responsibility upon those sharing sexual imagery to receive informed, voluntary consent before doing sharing, regardless of the intention behind sharing the images.
Ruby Peacock is an aspiring barrister and currently a legal and policy intern at the Legal Resources Centre in Cape Town.
[1] Crime Prosecution Service, ‘Social Media – Guidelines on prosecuting cases involving communications sent via social media’, revised 21 August 2018. Available at: https://www.cps.gov.uk/legal-guidance/social-media-guidelines-prosecuting-cases-involving-communications-sent-social-media
[2] Criminal Justice and Courts Act 2015, section 33.
[3] From an email sent by Cordelia Tucker O’Sullivan, Senior Policy and Public Affairs Manager at Refuge to supporters of its ‘Naked Threat’ campaign on 1 March 2021.
[4] BBC iPlayer, ‘Zara McDermott: Revenge Porn’ (documentary), 23 February 2021. Available at: https://www.bbc.co.uk/iplayer/episode/p096h12v/zara-mcdermott-revenge-porn
[5] ‘Revenge Porn: The Facts’, 12 February 2015. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/405286/revenge-porn-factsheet.pdf
[6] See, for example: https://www.lexico.com/definition/revenge
[7] Criminal Justice and Courts Act 2015, section 33.
[8] Kari Paul, ‘Pornhub removes millions of videos after investigation finds child abuse content’, 14 December 2020. Available at: https://www.theguardian.com/technology/2020/dec/14/pornhub-purge-removes-unverified-videos-investigation-child-abuse
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