BLOG: Revenge Pornography – The Naked Threat

It is now widely accepted that domestic violence can be perpetrated through social media. The government has attempted to tackle such conduct with recent changes in the legislation, but it has been criticised for not doing enough. Fiona Clegg looks at the current position and the proposals for reform.

Research shows that there has been an exponential increase in “sexting” during the national lockdowns. At the same time, domestic abuse has also significantly increased during the pandemic. All too often, the latter is perpetuated by the former.

Domestic Abuse Charities have expressed particular concerns about the increase in “sexting” from couples who are not isolating together, which can in turn increase the likelihood of intimate image abuse arising.

Established in 2015, the “Revenge Porn Helpline” is a government-funded service for adults experiencing intimate image abuse. It was introduced as a consequence of section 33 of the Criminal Justice and Courts Act 2015 (‘CJCA 2015’), which made it an offence to share intimate images or videos of an individual, without their consent, with the intention of causing distress.

During the lockdowns, there has been a surge in the number of people contacting the Helpline. January 2021 saw the largest number of monthly cases ever at just over 400, with the rate of new cases per day rising even further through February 2021. Those that manage the Revenge Porn Helpline have indicated that over half of the cases since lockdown clearly originated in an “abusive or controlling relationship”.

Intimate image abuse, or the threat of it, is often used as a control mechanism. It creates fear in victims and can provide as ‘bargaining tool’ for perpetrators. The steep rise in calls to the Helpline indicates that this control mechanism is being utilised even if a perpetrator has not been isolating with their partner or ex-partner.

Needless to say, stress, relationship breakdowns, illness and loss of employment, all of which have been rife during the pandemic, can all aggravate pre-existing abusive behaviour and coercive control. It is therefore no surprise that, in recent months, there has been sharper focus on enacting and campaigning for additional powers designed to address domestic related offences.

Revenge Pornography

In 2015, disclosing private sexual photographs and films with intent to cause distress became an offence, punishable by a maximum sentence of two years’ imprisonment. Section 33 of the CJCA 2015 provides:

(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.

(2)But it is not an offence under this section for the person to disclose the photograph or film to the individual mentioned in subsection (1)(a) and (b).

The current legislation is limited to actually disclosing private sexual photographs or films. Despite the devastating impact it can have, the legislation does not currently extend to the threat of disclosing private sexual photographs or films. Those that make such threats are therefore not caught by this offence.

The Naked Threat

The lacuna in the legislation has meant perpetrators have been able to threaten to share intimate images, without fear of prosecution under section 33 CJCA 2015.  Such threats are often made as a way of controlling and frightening victims, both during relationships and following separation.

The charity Refuge has long called for there to be an extension to section 33 of the CJCA 2015, to include threats to disclose images with the intention to cause distress.

In July 2020, as the Government began the report stage of the Domestic Abuse Bill, Refuge launched a campaign with one clear aim: to make threats to share intimate or sexual images or films a criminal offence. “The Naked Threat” campaign, backed by the Victims Commissioner and the Domestic Abuse Commissioner, prepared a report. This report sought to establish, for the first time, the scale of how threats to share intimate or sexual images or videos, without consent, are being increasingly used as a tool of coercive control and domestic abuse. In June 2020, Refuge commissioned a representative survey amongst adults in England and Wales, designed to explore the prevalence and impact of this form of abuse. They found that 1 in 14 adults, equivalent to 4.4 million people in England and Wales, have experienced threats to share their intimate images or videos.

The figures indicate just how prevalent such threats are in society. This prevalence has called for urgent action, as a matter of protection and policy. Refuge’s campaign has gathered momentum, as well as support from high profile public figures, including Refuge Patron and Oscar winner, Olivia Colman. Whilst already well underway, this momentum has assisted with a swift response to proposals to the Domestic Abuse Bill 2019-21.

Domestic Abuse Bill

The Domestic Abuse Bill 2019-21 was debated at its third reading in the House of Lords on 25 March 2021. Whilst yet to receive Royal Assent, it is now in the final stages, with consideration of amendments sitting on 15 April 2021.

Amongst other proposals, the Bill includes a proposed change to widen the scope of current revenge pornography legislation to include threats to disclose intimate images with the intention to cause distress.

The proposals in the Domestic Abuse Bill provide a more robust framework, with the aim of extending protection for victims and acting as a deterrent to this type of abuse being committed.

Should the Bill obtain royal assent in its current form, there is wider scope for prosecuting offenders. Some key proposals include:

Section 33 of the CJCA 2015 would be amended to “Disclosing, or threatening to disclose, private sexual photographs and films”.

Section 33(1) CJCA 2015 would be amended so that a person commits an offence if (a) the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears; (b) by so doing, the person intends to cause distress to that individual; and (c) the disclosure is, or would be, made without the consent of that individual.

Pursuant to section 33(2) CJCA 2015, it would still not be an offence under this section for the person to disclose, or threaten to disclose, the photograph or film to the relevant individual mentioned in subsection 1(a) and (b).

A key proposed amendment would see the insertion of section 33 (2A) CJCA 2015, which would provide that, where a person is charged with an offence under this section of threatening to disclose a private sexual photograph or film, it is not necessary for the prosecution to prove – (a) that the photograph or film referred to in the threat exists, or (b) if it does exist, that it is in fact a private sexual photograph or film.

The statutory defences available under section 33(4) and (5) CJCA 2015 would remain available to both “disclosure” and “or threat to disclose”.

Section 33(8) CJCA 2015 would be extended so that a person charged with an offence under this section is not taken to have intended to cause distress by disclosing, or threatening to disclose, a photograph or film merely because that was a natural and probable consequence of the disclosure or threat.

Conclusion

As practitioners, we need to be alert to the widening of scope for “Revenge Pornography” offences. If enacted, practitioners must be vigilant of the consequences of section 33 (2A) CJCA 2015, particularly the lack of a burden on the prosecution to prove that the photograph or film, threatened to be disclosed, actually exists. The scope as to what constitutes as a “threat” in this context remains to be seen. Once enacted, practitioners will need to be prepared to properly deal with this in submissions.

If enacted, the proposals provide much greater protection for those subjected to coercive control or domestic abuse, by way of threats to disclose their intimate images. As ever, much of the success of the extended protection the Bill intends to provide, will come down to how the new legislation is enforced.

Fiona Clegg is instructed as led junior and junior alone in all areas of serious and complex crime. She has recently been instructed in cases of fraud, sexual offences, organised crime, violence, drugs and regulatory offences. Fiona is experienced in representing vulnerable clients, as well as cross-examining vulnerable witnesses in sensitive cases.