Trent University
It has been hard to avoid news of the ‘revenge porn’ offence. Enacted to deal with the growing problem of sexual images being disseminated online the offence has been hailed a success, with 206 prosecutions since the law came into force in April 2015. However, it has also been criticised, primarily for failing to shield victims from publicity.
What is the revenge porn offence? First, it is not a sexual offence. While most people use the sobriquet ‘revenge porn’ the offence is actually the less pithy “disclosing private sexual photographs and films with intent to cause distress”. As this suggests the mens rea of the offence focuses on images being disseminated online or offline with the intention of causing distress to the individual featured. If the primary intention is different, for example if an image is posted for economic or sexual purposes, it seems this would not suffice. Moreover, just because distress is a consequence of the disclosure, this is not sufficient to import intention.
It will be interesting to see how this specific mens rea is interpreted if challenged. To date no cases have been heard by the appeal courts but it seems unlikely offenders could escape liability by asserting that their motivation was economic.
The offence defines private sexual images as those that show an individual’s exposed genitals or pubic area, or is otherwise something a reasonable person would consider to be sexual by virtue of its nature or context. This would cover images of an individual giving or receiving oral sex, but it is less clear whether it would include an image of exposed buttocks or more mundane sexual activities.
Disclosure must be to a third party and without the consent of the individual featured. While disclosure can take any form – and one successful prosecution concerned hard copy images being handed out – most cases have concerned images posted online. This is where difficulties have arisen. As this is not a sexual offence where identification of the victim is prohibited, it seems victims have been unwilling to draw further attention by pursuing cases. Consequently, there have been calls for a reclassification of the offence as sexual, which would not only afford the victim anonymity but also recognise these disclosures often seek to demean women. However, as the images are usually taken with consent the offence is actually tackling a specific form of harassment, not sexual violence.
While anonymity would be welcome and we require some clarification of the detail, the revenge porn offence has largely fulfilled its purpose in holding to account those who seek to sexually humiliate.
