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Following the highly publicised trial and subsequent imprisonment of Stephen Bear, Fiona Clegg looks at the current position regarding disclosing private sexual photographs and films with intent to cause distress and the proposals for reform.
On 3 March 2023, Stephen Bear was sentenced to 21 months’ custody at Chelmsford Crown Court. Mr Bear was convicted after trial of voyeurism and sharing private sexual videos without consent. The material related to CCTV from Mr Bear’s garden, which captured Mr Bear and his then partner Ms Harrison engaging in consensual sexual intercourse. The footage was uploaded to the social platform OnlyFans
, and subsequently garnered financial profit. Ms Harrison, who waived her right to anonymity, was unaware at the time that they were being filmed, but was later told by Mr Bear that they had been.
Domestic Abuse Charities hope that in imposing a custodial sentence, a “precedent will be set and a warning sign sent to perpetrators” as the court recognises the “profound impact intimate image abuse had on survivors”.
The case of Stephen Bear has been highly publicised and Ms Harrison’s bravery commended, not least by Domestic Abuse Charities. However, as highlighted by Refuge, reporting and conviction rates remain comparatively low for disclosing sexual photographs and films. Campaigners are calling for legislative changes and policies to afford greater protection in the fight against intimate image abuse.
Sharing Private Sexual Videos
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. Often referred to as ‘revenge pornography’, section 33 of the Criminal Justice and Courts Act 2015 (“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).
Various defences are available, set out in section 33(2) to (5). It is a defence for a person charged with an offence under this section to prove that he or she reasonably believed that the disclosure was necessary for the purposes of preventing, detecting or investigating crime. A defence is available in circumstances in which the disclosure was made in the course of the publication of journalistic material  and also in circumstances in which the person making the disclosure reasonably believed that the photograph or film had previously been disclosed for reward, whether by the individual mentioned in subsection (1)(a) and (b) or another person.
The meaning of “disclose” and “photograph or film” are dealt with by section 34 CJCA 2015:
(2)A person “discloses” something to a person if, by any means, he or she gives or shows it to the person or makes it available to the person.
(3)Something that is given, shown or made available to a person is disclosed—
(a)whether or not it is given, shown or made available for reward, and
(b)whether or not it has previously been given, shown or made available to the person.
In practice, there is seldom difficulty in proving that the disclosure of the material was made without their consent, thereby satisfying s.33(1)(a). This is particularly true in cases whereby the complainant had no knowledge that the material had been disclosed and/or circulated. However, for the offence to be made out, consideration must then be given to whether the photograph was so disclosed “with the intention of causing that individual distress”.
The offence is one of specific intent. As such, the context in which the image was sent is important when establishing whether the requisite intention, and in turn the offence itself, is made out. As practitioners, we must be alive to this issue and challenges to be made.
R v Bostan  EWCA Crim 494 provides some guidance as to evidence of intention when disclosing such images. In Bostan, the appellant sent a single still image of the complainant (who had just turned 18) to her mother. The appellant and complainant had been in a relationship, during which she had allowed him to have this photograph of her as private matter. It was a topless photograph; she was naked above the waist only, not striking any overtly sexual pose or doing anything sexual beyond baring her top half.
In Bostan, the appellant sent the photo to the complainant’s mother as an act of revenge because the complaint made contact with his new girlfriend to warn her off him. The appellant’s intention was clear: “He sent the photo to the complainant’s mother intending by doing so to cause distress and by doing so he did in fact cause some very real distress, as the complainant explained in her victim personal statement. That was the case in particular because, to the appellant’s knowledge, the complainant was from a conservative family and her mother would be shocked and ashamed that her daughter had allowed the appellant to have such a photo of her in the first place. The appellant aggravated the sending of the photo by the message to the complainant’s mother he sent with it, since that included a threat that if the complainant did not leave him alone he would “expose her to the world.”
In Bostan there was clear evidence that he sent the photograph intending to cause distress. This is evidenced by the accompanying threat that he would “expose her to the world” and the appellant’s knowledge that the complainant was from a conservative family and her mother would be shocked and ashamed.
In practice, many cases will not involve such clear evidence of intent to cause distress. As practitioners, we must carefully marshal evidence relied upon to prove such intent. By way of some examples, this may include communication evidence illustrating that matters were acrimonious between parties at the relevant time, or any evidence that the defendant had alluded to, or positively threatened to, disclose the relevant material.
On becoming aware of the disclosure, arguably it will cause the complainant distress. However, pursuant to Pursuant to section 33(8): A person charged with an offence under this section is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure. On this basis, whilst it may be a natural and probable consequence that the complainant is distressed by the disclosure, it does not follow that the defendant intended to cause such distress.
In recent years, and in particular since the exponential rise in reported domestic abuse since Covid-19, there has been sharper focus on enacting and campaigning for additional powers designed to address domestic related offences.
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.
Domestic Abuse Charities have called for further reform to the current law, as campaigners argue that, in practice, the need to prove intent to cause distress is prohibiting the protection intended by section 33 CJCA 2015.
The Online Safety Bill proposes a further “crackdown on intimate image abuse”. Proposals have included removing the requirement of needing to prove intent to cause distress. Viewed by many campaigners as the ‘stumbling block’ to successful charging decisions and thereafter conviction, it is hoped that removing this element of the offence would tackle perceived low conviction rates, which may themself act as a deterrent to those considering reporting intimate image abuse.
The sentence imposed on Mr Bear sends a clear message as to the seriousness of engaging in intimate image abuse. As practitioners, we need to be alert to the potential narrowing of scope for defences for “Revenge Pornography” offences. If enacted, practitioners must be vigilant of the consequences, particularly the lack of burden on the prosecution to prove an intention to cause distress.
 Section 33(3) CJCA 2015
 Section 33(4) CJCA 2015
 Section 33(5) CJCA 2015
 R v Bostan  EWCA Crim 494 at paras 15 to 16
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