With the increasing number of press reports on ‘revenge porn’, the adoption of such moniker merely serves to minimise the harms experienced by victim-survivors. Similar terms such as ‘upkskirting’, ‘Celebgate’ and ‘peeping Tom’ not only narrowly categorise the types of harm but also fail to capture the severity of image-based sexual abuse making their use inappropriate. Although the salacious labels that the press give to these abusive practices resonate with the public, they are greatly problematic as they help shape our response to these actions; they risk causing misunderstanding as to the nature of the harms, which will in turn have an adverse impact on any attempts to prevent and tackle this phenomenon.
Giving the practice of ‘revenge porn’ such a controversial and eroticising label distorts the focus of legislative debate. This is exhibited in the ineffective requirements that the perpetrator acts for the purpose of sexual gratification and regulation being dependent on whether an image is sexual. Furthermore, academics argue that the ‘anachronistic’ reference to ‘revenge porn’ does not take into account other motives for why private sexual images may be distributed, merely focusing on the motive of a relationship coming to an unwanted end. Viewing the practice in this way suggests that the perpetrators vindictive actions may in some way be justified as it is a response to something that the victim has done wrong. It unduly focuses attention on the perceived actions by the victim, rather than on the perpetrator, with defenders of revenge porn websites claiming that the victim waived his/her right to privacy when they stepped in front of the camera. This placement of blame perpetuates the culture of ‘slut shaming’ and supresses female sexual autonomy, becoming part of a larger systematic issue that is rape culture. This manifestation of rape culture normalises violence and blames the victims of sexual assault, particularly women, culminating in significant cultural harm.
Additionally, the use of multiple labels for the range of abusive practices fails to convey the connection between them as a phenomenon, masking the common driver that is sexual harassment and abuse. The result of this is that England and Wales have introduced legislative initiatives that represent ad hoc, piecemeal interventions that fail to tackle the root causes. The legislative response to ‘revenge porn’ was to enact an offence that typically focuses on the paradigmatic practices of vengeful ex-partners, thus drastically limiting the scope to a particular set of circumstances.
Instead of these trivialised labels afforded to individual practices, they should be considered under the phenomenon of image-based sexual abuse as it accurately conveys the abusive nature and the commonalities between seemingly disparate phenomena. Additionally, it illuminates the sexual violence that occurs, locating it within sexual offence law. The adoption of image-based sexual abuse should engender a more coherent and effective legal response, that adequately conveys societal disapproval of this phenomenon. Its breadth and flexibility would create a framework that allows new practices to be covered, necessary with current technological advancements.
1. The different forms of image-based sexual abuse
The rapid development of technology has meant that image-based sexual abuse is constantly evolving, resulting in many forms currently not covered under current legislation. The diverse range of gendered, sexualised practices form part of the ‘continuum of image-based sexual abuse’, sharing commonalities and connections. In order to determine whether current legislation is effective in combatting this phenomenon, it is first necessary analyse the different forms of image-based sexual abuse.
a. ‘Revenge porn’
The most notable form of image-based sexual abuse is ‘revenge porn’, typically understood as the non-consensual distribution of private sexual images by a malicious ex-partner to exact ‘revenge’. These images are consistently posted across social media platforms and appear on pornography websites, with around 3000 dedicated websites to ‘revenge porn’.
With 75% of 1800 calls to UK’s Revenge Porn Helpline over six months being from women, this is a gendered form of sexual abuse, often described as ‘cyber misogyny’, the prevalence of which has increased exponentially due to the ubiquity of smartphones.
The national media coverage and numerous advocacy groups led to the ad hoc criminalisation of ‘revenge pornography’. Despite over 200 cases being prosecuted in the UK within the first year of enactment, s. 33 is still regarded as being ineffective and only the ‘tip of the iceberg’. The mens rea, requiring there to be an intention to cause distress, severely limits the offence to that of the paradigmatic example of the vengeful ex-boyfriend. In reality, motives extend to financial gain, blackmail, to gain notoriety or ‘just for a laugh’. S. 33 remains restricted in scope and offers limited redress, calling for reform.
Voyeurism has long been considered an offence and is defined as the surreptitious non-consensual viewing and/or recording of images of private acts for the purpose of sexual gratification. The voyeurism offence is considered a ‘mere nuisance’ as the draconian requirements of a sexual motive and the act being performed in private limit the scope of legal redress. The offence demonstrates how a ‘crime du jour’ approach, which focuses on narrowly defined conduct and the perpetrators perspective, may leave victims unprotected. It fails to cover modern variants of the voyeurs’ activities such as ‘upskirting’, making the offence outdated and unable to keep up with the rapid technological developments.
Upskirting is the practice of taking non-consensual images up or through clothing. Both the victimisation and the perpetration is gendered, and further emphasised by the label given to the practice. Upskirting is on the rise, with the pervasiveness of smartphones and internet access making is easier to take and distribute ‘upskirt’ images. Images regularly appear online, usually on pornography websites dedicated to this genre with one such website receiving 70,000 views a day.
Currently there is no legal framework despite the harms the victims experience being similar to those of voyeurism. Academics view this as the ‘most glaring omission’ from s. 67 as the sexual motive requirement precludes those who perpetrate this form of abuse for a myriad of other reasons. Additionally, taking ‘upkskirt’ images in public would not satisfy the element of being a ‘private act’ which is further defined by s. 68. Although the nature of the act is not private, the images themselves are and victims’ experiences are akin to that of other victims of image-based sexual abuse, fuelling the need for legislative protection.
d. Sexualised Photoshopping
Sexualised photoshopping is on the continuum of image-based sexual abuse as it is the non-consensual creation of private sexual images. The practice consists of a pornographic image being superimposed onto an individual’s head or body part, such that it looks as if that individual is engaged in the pornographic activity. The harms are very real as many victims experience a breach of trust as well as harassment and abuse. Furthermore, with such drastic technological advancements it is often impossible to tell that edits have been made resulting in the harm being as severe as if the image was real. This form of image-based sexual abuse challenges the legislature to be reflective of the harms which the victim suffers and of changing methods of perpetration.
Sexualised photoshopping is currently not criminalised within the UK, with a government minister expressing how although the manipulated images may still be ‘distressing’, they do not have the potential to cause the same degree of harm as the disclosure of images that record real private, sexual events.
e. Sexual extortion
A further form of image-based sexual abuse is sexual extortion which consists of the perpetrator coercing individuals into creating and/or sharing private sexual images. This is an extremely gendered practice as perpetrators are generally men and adult victims more likely to be women, appearing to be a practice of violence against women. The harms experienced by victims have been described as analogous to sexual assault and ‘feeling like being raped through a phone’, justifying the inclusion of this practice within the greater phenomenon of image-based sexual abuse. Although there are existing criminal offences which could cover some aspects of sexual extortion, such as blackmail, the need to be recognised as a sexual offence is imperative.
Image-based sexual abuse is on the ‘continuum of sexual violence’ because it shares common characteristics with other forms of sexual violence. The abuse is sexualised, sexual imagery is the focus of the abuse, and women experience these phenomena as a form of sexual assault. As a result of rapid technological progress, we are witnessing a growth in social movements demanding changes to the law that will challenge all forms of image-based sexual abuse.
2. Harms of Image-Based Sexual Abuse
In order to evaluate the effectives of current legislative initiatives that tackle image-based sexual abuse, it is necessary to first justify the criminalisation of these practices. The impact of image-based sexual abuse is extensive, ranging from individual to cultural harm.
a. Cultural Harm
All forms of image-based sexual abuse adversely impact society and the lack of recognition engenders a culture conducive to the proliferation and toleration of sexual violence. A society that accepts the non-consensual creation and/or distribution of private sexual images as a ‘harmless prank’ results in victims being chastised and labelled hypersensitive and perpetrators going unpunished.
The harms suffered are deeply gendered, which is shown by the extremely misogynistic and sexualised manner in which they are manifested. Empirical data has shown that 88% of sample posts from MyEx.com were women, verifying that revenge porn is highly gendered. Academics have theorised that possible motivations behind the pernicious practices include perceived injury to masculine pride in the aftermath and generalised aggression towards women. Academics have argued that power is socially produced, with Reeves Sanday believing that sexual violence is the outcome of women’s inferior status and MacKinnon theorising that sex and sexuality is an arena of power that is used to create and maintain a ‘phallo-centric’ mentality. According to Stoltenberg, power and control for men is owed to these acts of force and ‘sexual terrorism’, rendered by the subordination of women while men affirm their ‘manhood’.
Moreover, male dominance transcends the boundaries of technology, with men collectively vilifying and threatening women on online images, with websites providing personal details and links to other social media accounts of the individual pictured. This ‘mob mentality’ ensures the silencing of women’s voices and inhibiting their willingness to participate online as equals, depriving society of a more diverse and richer public discourse. Undermining women’s sexual autonomy in this way sustains a culture in which sexual consent is regularly ignored and encourages the devaluation of women’s sexual autonomy.
This attitude engenders rape culture; a complex set of beliefs that encourage male sexual aggression and supports violence against women, presenting physical and emotional terrorism against women as the norm. There are many theories as to why rape culture still exists, but competitive talk among the boys seems to be the driving force. Boeringer found that men who were in fraternities, where ‘lad culture’ was prominent, were more likely to endorse rape-supportive beliefs and attitudes compared to men outside of a fraternity. Phipps and Young correlate ‘lad culture’ to ‘raunch culture’ which is the hyper-sexualised culture that objectifies women and is linked to the mainstreaming and normalisation of the sex industry and sexual violence. Both of these societal attitudes result in overall significant cultural harm.
Romito identified six tactics that operate to hide male violence, three of which strongly resonate with image-based sexual abuse: euphemizing, blaming and separating. Euphemizing is when certain language is used in order to hide the centrality of male violence against women, a well-known demonstration of this is ‘upskirting’. Blaming can be as evident as ‘slut-shaming’ or as concealed as ‘revenge porn’. Lastly, separating causes the continuity of acts hidden, referring to all practices as ‘image-based sexual abuse’ will help overcome this. Recognising these methods of concealment helps society address the root causes of image-based sexual abuse, hopefully resulting in more effective legislation.
b. Harms to individuals
Individuals also experience harm from image-based sexual abuse; violations of mental and physical integrity, dignity, privacy and sexual expression. Due to the omnipotent internet, it is extremely difficult to completely remove content as distribution occurs at such a rapid rate, scarring victims’ online and personal lives indefinitely.
The violation of personal and bodily integrity invariably leads to shame, humiliation, mental health issues and harassment. As a result of this abuse, half of all ‘revenge porn’ victims contemplate suicide, and in extreme cases commit suicide as in the case of Amanda Todd. Many images posted online are accompanied by personal information, known as ‘doxing’, causing victims to justifiably fear physical assaults as well as suffering online harassment across multiple social media platforms. Fear and apprehension about personal safety is not an unusual consequence, as victims have been approached by strangers and propositioned for sexual activities. After David Feltmeyer distributed DVDs of his ex-girlfriend performing sex acts, along with her full name, address and phone number, she started to receive phone calls and people turning up at her house. The cumulative effect is that the victim develops sustained and often serious adverse mental health effects, including panic attacks and suicide, with over 80% of revenge porn victim-survivors experiencing severe emotional distress and anxiety. Chrissy Chambers, a notable YouTuber, developed PTSD and subsequently turned to alcohol to cope, leading to a near death experience. Victims tend to withdraw socially, experience body shame, anxiety and sleeplessness leading to the breakdown of relationships.
Victims also experience professional costs, with many being dismissed from their current employment and others finding is hard to secure employment after the non-consensual distribution of private sexual images. According to a 2009 study commissioned by Microsoft, nearly 80% of employers consult search engines to collect intelligence on job applicants, and about 70% of the time, applicants are rejected due to their findings. This ripple effect means many leave employment or education, retreat from public discourse and withdraw from social media. Further exploitation of victims occurs with host websites offering to remove content at a fee, with no guarantee that the content has not spread, causing victims to suffer both emotionally and financially for a crime that someone else committed.
c. Breach of fundamental rights to dignity, sexual autonomy and sexual expression.
In a recent Irish case, where a sexually explicit video was uploaded, the victim described the experience as a violation of her trust and basic human rights. The sexualised nature of the abuse and harassment further identifies the harms suffered as breaches of women’s fundamental rights to sexual autonomy and expression. Everyone should be able to express their sexuality as they choose without fear of being chastised and harassed, or their consent being breached.
Sexual and bodily autonomy, the self-governance of your body and sexual life, is at the core of any individual’s private life. Although it has not always been recognised for women, the potential for harm is great causing the state to heavily regulate sexual autonomy. The confidence that one has in the security of their privacy and dignity forms the conceptual foundation for the protection of sexual autonomy and expression. To the extent that image-based sexual abuse restricts an individual’s ability to rely on such rights, justifies the need for a criminal offence as it contributes to further serious harms.
The benefits of sexual freedom and expression enrich our society and economy. There has been an increased role for women in the workplace, partly due to more women choosing to forgo serious relationships in order to achieve their career goals. The wider effect of this is a larger national workforce and therefore a higher economic output. Other benefits, include ‘heightened vitality, improved performance, and greater psychological well-being’, with sexual activity being a source of happiness and personal fulfilment.
Positive sexual autonomy is exhibited when a woman willingly takes a nude or sexual image of herself or allows another to; she is making the decision about her sexual behaviour. When these images are distributed without her consent, there has been a violation of her sexual autonomy. With ‘sexting’ being a valid form of sexual expression and embedded in modern relationships in a way that makes us feel safe and comfortable, the infringement of this trust causes significant harm. A consequence of this distribution is the perpetuation of gender inequality, where women are criticised and disgraced for their sexual activity while men are praised. They are harassed and abused for transgressing expected norms of women’s sexuality. This can be seen in the antiquated response to the previous title holder of Miss Great Britain, Zara Holland, who performed a sex act on reality TV, although the act itself was not shown. Not only did The Miss GB Organisation dethrone her, but they stated that ‘all young girls make mistakes’, further placing the blame solely on Zara. This was not the first time that the organisation had infringed a Miss GB’s sexual autonomy as Danielle Lloyd was stripped of her title after posing for Playboy. This outdated approach to female sexuality discourages women from exercising their basic human right of sexual autonomy, allowing the threat of abuse, and the omnipotent surveillance and appraisal of their sexual expression to constrain their choices, depriving young females of sexual exploration.
The Law Reform Commission has subsequently recognised that the posting online of private sexual images is a gross breach of privacy and dignity. Jeremy Waldron argues that dignity is about one’s status as a member of society which generates demands for recognition and treatment based on that status. Therefore, image-based sexual abuse infringes the dignity of victims by its deliberate violation of their self-worth and failure to treat them with respect as an equal in society. Moreover, the practice of such abuse compromises the dignity of all members of the same group who live in that society; it sends a message to all women that they are not equal, and that it could happen to them.
Justification for Criminalisation
Having been recognised as an infringement of privacy, surely this fundamental human right needs protection? The serious consequences of image-based sexual abuse to individuals and society warrant a criminal offence. Not only are the harms devastating, but the accessibility and advancement of technology and media facilitates and intensifies these practices, creating a new sexual ethics.
Feminists are divided on the implications of new technologies and the ubiquity of smartphones. Some argue that it hinders progress towards a more egalitarian sexual future for women by enabling the rapid transmission of non-consensually created and distributed images as well as more accessible methods of perpetration. On the other hand, it facilities freedom of sexual expression, becoming a fundamental part of healthy relationships. However, dealing with infringements of such constitutional rights which produce significant harms, warrants regulation by the state.
Alisdair Gillespie puts forward the argument that there are many aspects of an individual’s life that if disclosed could cause distress and the loss of employment, yet breaches of privacy are rarely protected by the criminal law, except when they amount to harassment. However, as noted above, all forms of image-based sexual abuse results in harassment to the victim, whether online or in public.
Bloom has motioned that revenge porn should be classified as a sexual offence due to its similarity with other types of sexual offences. Following this line of argument, all forms of image-based sexual abuse should be covered under sexual offence legislation as the harms are on the continuum of other forms of sexual violence.
In conclusion, the harms themselves should be sufficient to justify the criminalisation of image-based sexual abuse. However, this is clearly not the case. Perhaps then, the new advancements in technology call for guidance and regulation in order to prevent new methods of perpetration which violate these fundamental rights of privacy, dignity, sexual autonomy and freedom.