Sharing intimate photos or videos without consent, known as "revenge porn" or "image-based abuse", has become a concerning issue in today's digital age. Sharing content online has made it easier for perpetrators to share intimate images without the victim's consent. This paper discusses current criminal laws and other non-criminal oversight of online behaviour regarding the publication of non-consensual pornography.
Current Criminal LawsSeveral countries have enacted laws criminalising the publication of non-consensual pornography. For instance, in the United Kingdom, the Criminal Justice and Courts Act 2015 introduced a new crime of "Disclosing private sexual photographs and films with intent to cause distress". The crime carries a maximum sentence of two years imprisonment. Similarly, several states have enacted revenge porn laws in the United States, making sharing non-consensual pornography a criminal offence. The laws provide for both civil and criminal penalties for offenders.
While criminal laws allow victims to seek justice, some challenges are associated with their enforcement. In many cases, the perpetrator and the victim are in different countries, which makes it difficult to prosecute the offender. Additionally, victims may be reluctant to report the crime due to fear of stigma or retaliation (Henry, N., Flynn, A., & Powell, A, 2017).
Several legislations address non-consensual pornography in various jurisdictions. Some examples are:- The United States has several laws that criminalise the distribution of non-consensual pornography, including the Computer Fraud and Abuse Act, the Communications Decency Act, and the Protection Against Revenge Porn Act. Canada's Criminal Code section 162.1 criminalises the distribution of intimate images without consent.
- The United Kingdom has laws that criminalise the distribution of revenge pornography under section 33 of the Criminal Justice and Courts Act 2015. Australia has laws that criminalise the distribution of intimate images without consent under state and territory criminal codes.
- In India, non-consensual pornography is addressed under section 354C of the Indian Penal Code, which criminalises using electronic communication to capture or distribute images of a person's private parts without consent.
- The European Union has adopted the General Data Protection Regulation (GDPR), which includes provisions that protect the privacy and personal data of individuals, including the right to erasure (Article 17) and the right to object (Article 21), which can be relevant in cases of non-consensual pornography.
These are just a few examples of legislation that addresses non-consensual pornography. Jurisdictions worldwide are continuing to develop laws and policies to address this issue.
The Conservative, Liberal, and Feminist ideologies have different perspectives on non-consensual pornography.Conservative ideology views non-consensual pornography as a moral issue and believes it should be punished by law. Conservatives often emphasise the importance of traditional values, including the sanctity of marriage and the family, and believe that non-consensual pornography undermines these values.
Liberal ideology generally supports individual freedom and autonomy and therefore emphasises the importance of consent in sexual relationships. Liberals believe that non-consensual pornography violates an individual's rights and should be punished by law. They also advocate for increased education and awareness to prevent non-consensual pornography from occurring in the first place.
Feminist ideology views non-consensual pornography as a form of gender-based violence and a tool of oppression against women. Feminists argue that non-consensual pornography perpetuates harmful gender stereotypes and contributes to the objectification and sexualisation of women. Feminist perspectives emphasise the importance of legal and social measures to prevent and punish non-consensual pornography and increased education and awareness for challenging the cultural attitudes perpetuating this problem.
In summary, the Conservative, Liberal, and Feminist ideologies agree that non-consensual pornography is a problem that requires legal and social solutions. However, they differ in their underlying values and beliefs about the role of government, individual rights, and gender equality.
Arguments for criminalisation of non-consensual pornography- Protection of Privacy: Non-consensual pornography violates an individual's right to privacy and is a form of sexual harassment, intimidation, and abuse. Criminalising it sends a clear message that such behaviour will not be tolerated, and victims can feel protected.
- Deterrence: Criminalisation can deter potential perpetrators and prevent them from engaging in such behaviour.
- Justice for Victims: Non-consensual pornography can cause significant harm to the victim, including mental trauma and damage to their reputation. Criminalising it can provide a sense of justice and closure for the victim.
- Prevention: Criminalisation can also help to prevent non-consensual pornography from happening in the first place by raising awareness and changing attitudes towards consent and respect for privacy (Citron, D. K., & Franks, M. A., 2014).
Arguments against the criminalisation of non-consensual pornography
- Free Speech: Some argue that criminalising non-consensual pornography may infringe on freedom of speech and expression. This is particularly relevant when non-consensual pornography involves public figures or politicians.
- Enforcement Challenges: The enforcement of criminal laws on non-consensual pornography can be challenging, particularly in cases where the perpetrator is anonymous or the images have been shared across multiple jurisdictions.
- Over-criminalisation: Some argue that criminalising non-consensual pornography may lead to over-criminalisation, where minor or harmless conduct could be criminalised.
- Proving Consent: One of the biggest challenges in prosecuting non-consensual pornography is confirming that the victim did not consent to share the images. This can be particularly challenging in cases where the victim had previously agreed to have intimate pictures taken.
In conclusion, the arguments for criminalising non-consensual pornography focus on protecting privacy, prevention, and justice for victims. The arguments against its criminalising focus on free speech, enforcement challenges, over-criminalisation, and the difficulties of proving consent.
Non-Criminal Oversight of Online BehaviourIn addition to criminal laws, other non-criminal oversight mechanisms can help prevent the publication of non-consensual pornography. These mechanisms include online content moderation policies and civil remedies such as injunctions.
Digital platforms like Facebook, Twitter, and YouTube have introduced policies prohibiting sharing non-consensual pornography. These policies allow victims to report the content reviewed and removed if found to violate the policy. However, these policies have also been criticised for being inconsistent in their application and failing to adequately support victims (Miller, L. S., 2018).
Civil remedies, such as injunctions, can also prevent the publication of non-consensual pornography. In the UK, for example, a victim can obtain a court order to prevent the publication of intimate images. However, these remedies are often time-consuming and expensive and may not be accessible to all victims (Salter, M, 2017).
ConclusionThe publication of non-consensual pornography is a serious problem that can have long-lasting repercussions for victims. While criminal laws allow victims to seek justice, some challenges are associated with their enforcement. Non-criminal oversight mechanisms, such as online content moderation policies and civil remedies, can also help prevent the publication of non-consensual pornography. However, these mechanisms have their limitations and may not be accessible to all victims. As such, there is a need for a more comprehensive approach to addressing the issue, which involves both criminal and non-criminal oversight mechanisms.
References- Citron, D. K., & Franks, M. A. (2014). Criminalising revenge porn. Wake Forest Law Review, 49, 345-391.
- Henry, N., Flynn, A., & Powell, A. (2017). The impact of non-consensual pornography on victim/survivors: A rapid evidence assessment. Journal of Sexual Aggression, 23(2), 256-267.
- McGlynn, C., Rackley, E., & Houghton, R. (2017). Image-based sexual abuse: A review of the legal and social science literature. International Journal of Law, Crime and Justice, 49, 36-50.
- Miller, L. S. (2018). Digital sexual violence: A review of the literature on image-based sexual abuse and its impact on women and girls. Psychology of Women Quarterly, 42(3), 352-369.
- Salter, M. (2017). Justice interrupted: The ethico-politics of revenge porn victimhood. International Journal for Crime, Justice and Social Democracy, 6(4), 89-103.
