Abstract
The ability to distribute private intimate images across public networks including social media through smart devices or computers has emerged as a serious 21st century concern. Initially, legal systems and operators within criminal justice systems were slow to respond to the reported harms associated with the non-consensual distribution of intimate images (colloquially referred to as revenge porn). However, increasing recognition of the serious harm and victimisation that may result from this behaviour has led many jurisdictions across the world to create new criminal offences. This article reviews the appropriateness of offences that have been created or proposed with a particular reference to developments in Australia. It takes the most recent proposed offence in Western Australia as an opportunity to review the significant differences in how offences have been defined. In suggesting how new offences might be defined, this article relies on the ‘ladder principle’ and recommends that there should be a ladder or hierarchy of new offences to respond appropriately to both the seriousness of harm and culpability of the perpetrator.
Keywords
Introduction
Various jurisdictions internationally have grappled with finding an appropriate response to the ‘revenge porn’ phenomenon. This, not unproblematic, 1 term is used to refer to a wide range of scenarios. The archetypal case, giving this behaviour its colloquial name, is where sexualised, private or intimate images 2 taken or obtained during the course of a relationship are distributed without consent in an act of revenge at the breakdown of a relationship. It may also refer to the distribution or threat of distribution of intimate images to coerce sexual behaviour or to maintain coercive control in an abusive relationship. 3 Images may be stolen from a person’s device by hacking, or images may be modified to make them appear to look like another person and then distributed. For this reason, some prefer the term ‘image-based abuse’ 4 or ‘image-based sexual abuse’ to show that this behaviour exists on a continuum with other forms of sexual violence. 5 However, this term does not capture all instances where there may be problematic sharing of images. Other situations may involve the consensual sharing of images between friends for fun or to flirt. Indeed, intimate images are regularly shared on heterosexual and homosexual dating sites and apps. 6 Such images may then be shared with others without consent and the sharing may or may not be for malicious reasons. They may be shared to ridicule, humiliate or get revenge on a person for instance, but they may also be shared to show the ‘type’ that a person is interested in, or to brag about a date. The range of situations in which an intimate image may be distributed without consent indicates that there can be varied harms resulting from this behaviour and varied levels of culpability, thus requiring varied legal and non-legal responses. In recognition of these issues, this article uses the term ‘non-consensual distribution of an intimate image’ to capture a full range of problematic behaviours. 7
Initially, legal systems and operators within criminal justice systems 8 were slow to respond to the reported harms associated with the non-consensual distribution of an intimate image. 9 However, increasing recognition of the serious harm and victimisation that may result from this behaviour has recently led many jurisdictions across the world to create new criminal offences to deal with the non-consensual distribution of an intimate image or threats to distribute an intimate image. 10 This article reviews the need for criminal law protections and the appropriateness of offences that have been created with particular reference to Australian developments. Western Australia is one of the latest jurisdictions to propose a new offence and the structure of the proposed offence differs significantly from the approach taken elsewhere in Australia and in England and Wales. This article takes the recent proposal in Western Australia as an opportunity to review the quite significant differences in how offences have been defined. It evaluates how offences might best be defined to protect against the culpable causing of harm though the non-consensual distribution of intimate images. In suggesting how new offences might be defined, this article will rely on the ‘ladder principle’ 11 and will recommend that there should be a ladder or hierarchy of new offences to respond appropriately to both seriousness of harm and offender culpability.
The Need for New Criminal Law Offences
The argument that there is no clear guiding set of principles determining whether behaviour should be subject to criminal law is well-rehearsed. In his seminal article, Andrew Ashworth noted that criminal law could be termed a lost cause because it is ‘not the product of any principled inquiry or consistent application of certain criteria, but largely dependent on the fortunes of successive governments, on campaigns in the mass media, on the activities of various pressure groups and so forth’. 12 To an extent, this claim holds true in relation to the criminalisation of the non-consensual distribution of intimate images. The creation of new offences in various jurisdictions can be seen to be the result of campaigns in the media 13 and of the activities of pressure groups. 14 It has, however, also been the result, particularly in Australia, of several principled inquiries which have examined the impacts of this behaviour, the harms associated with it and what legal and policy responses should be adopted, including the creation of new offences. 15
One of the main principles that should guide decisions about criminalisation is, according to Ashworth, that criminal law should only be used to censure people for substantial wrongdoing. 16 It follows that a reason for criminalising the behaviour is because it is of social significance and the criminal law can reduce the incidence of it. 17 In terms of seriousness of wrongdoing, Ashworth explains that this has two dimensions, harm and culpability. Despite noting that conceptions of harm and culpability can vary significantly over time and across jurisdictions, he finds that this does not detract from the central point that the wrong must be serious enough to warrant condemning and sanctioning by the criminal law. 18 The legislative activity in this area shows that many jurisdictions are in agreement that criminal law is a necessary response to some forms of non-consensual distribution of an intimate image.
Harms can consist of an interference with individual or collective interests. 19 Drawing on von Hirsch and Jareborg, Ashworth finds that harm to an individual can be assessed on the basis of how much the behaviour under consideration for criminalisation impacts on the ‘living standard’ 20 of the individual. Von Hirsch and Jareborg define living standard as ‘the means and capabilities that would ordinarily help one achieve a good life’. 21 Their reason for adopting this criterion to assess the seriousness of harm is that ‘it appears to fit the way one ordinarily judges harms’. 22 In relation to collective interests, von Hirsch and Jareborg note that where the harm is to a class of victims, such as where a pharmaceutical company makes a drug that adversely affects pregnant women, then the living standard of members of that class is measurably reduced and therefore this paradigm still applies. 23 To address the issue of harm to collective interests, Ashworth draws on the work of Marshall and Duff to conclude that crimes are public wrongs even though they are an attack on an individual because they are ‘wrongs that are shared by other members of the community with which the victim is identified and by which her or his identity is partly constituted’. 24 As such, the assessment of the seriousness of wrongdoing needs to take account of the harm to individual and collective interests.
In relation to the non-consensual distribution of intimate images, the harms have been well-documented by others. 25 It suffices here to summarise some of these findings to highlight that, while there are many varied scenarios in which an intimate image may be shared without consent, there are cases where this does amount to a substantial harm to the individual and does have a community impact. 26 New technologies have the potential to create new forms, as well as new dimensions, of harms due to the ‘unprecedented power of new technologies in achieving new forms of social shaming—beyond geographic borders, at vast speeds, to diverse audiences’. 27 Particular harms consequent on the non-consensual distribution via social media or the Internet include personal details and private information being revealed online, images being further distributed to persons known and unknown, including through publicly accessible online repositories of ‘revenge porn’ images (a ‘revenge porn’ site). 28 Personal threats to the dignity and safety of the victim include the shame and humiliation of the victim, not only because a sexualised or private image may now be seen by an unintended audience but because the dissemination via social media or online takes away any sense of control from the person so affected. This loss of control of the privacy of an image coupled with the uncertainty of whether images, even if deleted, may survive in some form somewhere online, causes a trauma that may continue well after the initial dissemination. Individual acts of dissemination may include e-mailing private or compromising photos to employers directly, which can harm an individual’s current and future employment. But also widespread dissemination over the Internet to people other than employers can lead to loss of employment and employability.
Distribution of, or even a threat to distribute, a private or sexualised image may also occur in a broader context of family and domestic violence. The context of family violence may see images held privately being used to coerce and control the victim. 29 This may be out of a desire to stop the person leaving a relationship, or to stop them seeing certain people or to control them in some other way through belittling or humiliation. Threats to distribute may include the suggestion that intimate images are held on a phone to be disseminated via social media at the discretion of the abuser.
Harm to the person whose image has been distributed can also be intensified through victim blaming. Where the original image was taken with consent, or is seen to be taken with consent, there can be a tendency to blame the victim for the eventual distribution. 30 Victim blaming may also be prevalent where the victim did not consent to the taking of an original image, with some forming the view that the victim ought to have taken measures to better protect their person being filmed in the first instance. 31 The original consent to the taking of a private image then taints the non-consensual distribution and the victim is asked, by family or friends or even by exposure through mass media, why they would allow someone to take such a private image in the first place. Blaming may be intensified where the victim has been in a tenuous or compromised relationship, with a problem spouse or partner, or where the image is taken by, or shared with, someone not well known to the victim, such as during a one-off sexual encounter. Here, blame apportioned to the victim may go as far as excusing the offender’s conduct. Victim blaming may also apply disproportionately to different victim groups. This has been linked to behaviours embedded in a culture of masculine control and even shaming of women’s bodies. 32 It has been commented that ‘[t]his excessive focus on individual responsibility and risk management obscures gendered differentials and inequities of interpersonal relations, […] amplifying existing cultural logics that blame women who experience gendered violence’. 33 There is clearly a gendered nature to the distribution of images (and to victim blaming) with women forming the target group. 34 Furthermore, Powell and Henry identify that younger (18–24) and non-heterosexual adults are particularly at risk of online forms of sexual harassment and abuse. 35 Indeed, in a technologically facilitated environment, non-heterosexual identifying adults were reportedly significantly more likely to experience offensive messages about their sexuality or sexual identity, to receive offensive messages about their gender, as well as experience sexual harassment. 36 Further research is needed into the extent to which these vulnerable groups, such as younger people and LGBTI persons in particular, may be disproportionately exposed to the risks of intimate images being distributed.
It follows that such behaviour is rightly the subject-matter for criminal law in terms of the harms caused. In relation to culpability, Ashworth notes that if a person is to be censured through the criminal law and liable to sentence, then the criminal law should require proof of fault.
37
Many harms which constitute a crime may also constitute a civil wrong. The difference is that criminal law generally requires that the harm is caused with a higher degree of culpability and that this is proven to a higher degree of certainty than in civil law.
38
Ashworth notes that: the concept of intention (and, to a lesser extent, that of recklessness) would be a requirement of the paradigm crime. Its moral significance was well captured in the dictum of Oliver Wendell Holmes that even a dog distinguishes between being kicked and being stumbled over.
39
Ashworth notes that preventing the wrongdoing is a reason to criminalise it but warns against seeing prevention in itself as a sufficient reason for criminalisation. 40 He also notes that there is a tendency to overestimate the deterrent effect of criminal law. Furthermore, he points out that in political and media discussions about the creation of new crimes, there is rarely discussion of the fact that targeted social and educational policies, among other things, may have greater preventive effect. 41 In relation to the non-consensual distribution of an intimate image in the Australian context, such offences have been recommended alongside the development of civil law causes of action as well as educational and other administrative measures. 42 This is partly a recognition of the fact that there may need to be a range of legal and non-legal responses because of the varied behaviours under discussion. It may also represent an acknowledgement that criminal law may not always provide, or be capable of providing, the remedies that a person is seeking. A person whose intimate image has been distributed will usually be primarily interested in having the image removed and preventing its further circulation. In Australia, complaints can now be made to the Office of the e-Safety Commissioner, which can assist with the removal of images from social media. 43 Private law actions can also provide remedies such as an injunction ordering a person to remove images and not to distribute them further. 44 If there is emotional harm or a loss of earnings because of an inability to work due to the non-consensual distribution of an intimate image, then civil law may provide damages to compensate for such losses. 45
While civil law and administrative measures may be appropriate in some cases and may provide the remedy that a complainant is seeking, such measures lack the punitive, censuring and symbolic-educative function of criminal law. 46 Criminal law is designed to prevent conduct that is substantially wrong from occurring. It does this largely through threatening the infliction of sanctions in order to deter the individual or people in general. On a more profound level, the threat of punishment of wrongdoers can have ‘educative, moralizing and habituative’ functions. 47 As Andenaes writes, punishment sends messages which proclaim that it is wrong to not obey the law. 48 Punishment is a clear expression of society’s disapproval of behaviour and this helps to shape society’s moral code and ‘with fear or moral influence as an intermediate link, it is possible to create unconscious inhibitions against crime, and perhaps to establish a condition of habitual lawfulness’. 49
New communication technologies are continually re-shaping societal expectations around communication, leading to cultural change that imposes a new ‘set of interactional codes and symbolic manners appropriate to the technology’.
50
As has been commented: Like the technology itself, these codes and manners do not come fully formed. Just as the language of phone texting has developed with the technological advances of the mobile phone, the technical capacities of such phones to produce and disseminate images have opened up new capabilities and possibilities.
51
The Form of Criminal Law Response
The non-consensual distribution of an intimate image does represent a substantial wrongdoing. But, as discussed above, an assessment of the seriousness of wrongdoing requires not just an assessment of the harm caused to a person but also of the culpability of the perpetrator. Largely, the offences created in various jurisdictions define the harm caused by this behaviour in a similar way. A major point of difference between jurisdictions relates to the mental elements required for these offences, and as such the culpability of the perpetrator.
Physical Elements
The Image
There is a degree of difference in how the subject matter of the image covered by new offences has been defined. Most definitions are designed to cover images, whether moving or still, 53 of a private, sexual or intimate nature. In Victoria, the definition of an intimate image focuses on the sexual nature of the image by referring to an image showing: a person engaged in sexual activity; or a person in a sexual context or manner; or the genital or anal region of a person, whether bare or covered by underwear; or the breasts of a female. 54 Other jurisdictions define an intimate or invasive image more widely. In South Australia, an invasive image is one depicting a person engaged in a private act (a sexual act not ordinarily done in public or an act carried out in a sexual manner or context or using a toilet) or in a state of undress which shows the bare genital or anal region of a person or the bare breasts of a female. The broadest definition seems to apply in New South Wales (NSW), where an intimate image is one which shows a person’s private parts (the genital or anal area whether bare or covered by underwear or the breasts of a female or transgender or intersex person identifying as female) or a person engaged in a private act (in a state of undress, using the toilet, showering or sunbathing, engaged in a sexual act of a kind not ordinarily done in public or a similar activity).
These definitions could mean that these offences apply to a wide range of situations and lead to potential overreach of the criminal law. Most Australian jurisdictions do, however, require an objective assessment of whether the images are contrary to community standards, which may go some way to prevent overreach of the criminal law. In South Australia, an image of a person will not be regarded as invasive where it falls within the standards of morality, decency and propriety generally accepted by reasonable adults in the community. 55 Similarly, in Victoria, there is a requirement that the image be distributed in a way that is contrary to community standards 56 (discussed below). In NSW, the limitation is that the intimate image must show the private parts or a private act in circumstances in which the reasonable person would expect privacy. 57
In England and Wales, the new offences are limited to private sexual images (photograph or film). 58 Private refers to something that is not of a kind ordinarily seen in public and sexual means showing: all or part of an individual’s exposed genitals or pubic area; something that a reasonable person would consider to be sexual because of its nature; or something that, taken as a whole, has a content that a reasonable person would consider to be sexual. 59
Criminalisation of the unauthorised distribution of images showing sexual activity or a sexual context or manner is easily justifiable. The distribution of such images without consent invades a person’s most intimate sphere and may cause feelings of guilt, shame, embarrassment and self-recrimination. 60 McGlynn and others prefer the focus to be on ‘“sexual” images in order to highlight the need to respond to the specific sexual harms perpetrated against women through the attack on their sexual self, sexual autonomy and agency’. 61 Whether definitions should extend to other private acts where there is no sexual activity or context depends on the purpose of these criminal offences and whether they are designed to punish breaches of privacy more broadly. If this is the case, then the question arises as to why nude and semi-nude images should be protected above other images which may be regarded as private because of the circumstances or the subject’s cultural beliefs, such as ‘a person who would always choose to wear a headscarf in public who is not wearing a headscarf, or an image of a transgender person prior to that change’. 62 The Scottish Government were of the view that such a broad definition was not appropriate because it could lead to ambiguity and that ‘it may be very difficult for police and prosecutors to establish that such a shared understanding, that a particular image was—intimate, actually existed between the person featured in the image and the person sharing the image’. 63
In England and Wales and NSW, the offences cover images which are not actually of the subject of the image but have been modified in some way to make them appear to be an intimate image of the complainant. 64 This potentially covers the creation of, for example, deep fakes, which are images modified through artificial intelligence–based technology that allows a still image of a person’s face to be transposed to a person in a video image, including a pornographic video. 65
The Distribution
Distribution can take many forms. An image may be shown to another person, shown to many people, distributed via social media to a limited or closed audience, or posted on the Internet at large. Images may also be uploaded to ‘revenge porn’ websites. Distribution has generally been defined as making available to another person other than the subject of the image. For instance, in NSW, ‘distribute’ is defined to include sending, supplying, exhibiting, transmitting, communicating or making available for access by any other person, whether in person or by electronic, digital or other means. 66 The term used in England and Wales is ‘disclose’. This is defined to mean giving, showing or making available.
These definitions would then cover a situation where a person shows their phone to another without giving that person control over the image. This may be seen as materially different from a person who uploads an image to social media or the Internet. The question of whether the definition should extend to showing an image depends on whether the core harm is seen as the lack of control over dissemination of the image through new technologies or the breach of privacy. The severity of harm flowing from the use of new technologies stem, as noted earlier, largely from the lack of control over the image once it is distributed and the ease and pace at which the image can be distributed around the world. It is also because the image may form part of a person’s digital footprint, haunting their future because they do not know when it might reappear. Such harms may not occur where an image is shown to another without giving the other person control. Nonetheless, this does not mean that harm does not flow from such behaviour, as in the case where an image is shown to an employer, or there is a threat to show images to others in an attempt to control the subject of the image.
Without Consent
When discussing how an offence should be defined, the Australian Legal and Constitutional Affairs References Committee found that consent should ‘be the central tenet of any non-consensual sharing of intimate images offences’. 67 In contrast to other jurisdictions, such as England and Wales, Australian jurisdictions have tended to give more guidance on the meaning of consent and when consent is not present. In several Australian jurisdictions, the definition of consent in relation to the new offences leans on the definition of consent in relation to sexual offences. Generally, the offences make clear that consent must be freely given and must be given for the particular way in which the image is distributed and to whom it is distributed. 68 The NSW law also clarifies when consent will not be regarded to be freely and voluntarily given. Some of these clarifications are specific to this behaviour while others are drawn from the law relating to consent in sexual assault. The NSW provisions state that: consent given on one occasion to the distribution is not to be taken as providing consent to the distribution of that, or any other, image on another occasion; 69 where consent is given to distribution in a particular way or to a particular person, that does not constitute consent to distribution in any other way or to any other person; 70 and the fact that a person distributes the image themselves does not mean that they consent to any other distribution. 71 Further factors which indicate that a person does not consent to distribution closely follow some of the factors which negate consent in relation to sexual assault. 72 These include if the person is under 16 or does not have the cognitive capacity to consent; the person has no opportunity to consent due to unconsciousness or sleep; the person consents because of threats of force or terror; or the person consents because of being unlawfully detained. 73 The mirroring of the factors from sexual assault offences reveals that these new offences are seen as related to sexual assault. This is in line with commentary that this behaviour often represents a form of sexual violence and exists on a continuum of sexual abuse. 74 The definition of consent for the offence proposed in Western Australian closely follows this definition in NSW. 75
In South Australia, the offence of distributing an invasive image requires that this is done without the consent of the person to that particular distribution or to distribution generally. 76 It is further made clear that consent is not effective when given by a person under the age 17 or by a person with a cognitive impairment, or where it is obtained by duress or deception. 77 In Victoria, the offence of distribution of an intimate image does not apply where the subject of the image is not under 18 and has expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented to the distributed and the manner in which it was distributed. 78 The incorporation of implied consent is interesting, given that consent may not always be verbally expressed. This allows the court to determine whether there is an objective basis to assumed consent, to determine if the subject of the image could reasonably be considered to have consented. Such a provision could, however, allow stereotypes to feed into judgments about when consent could reasonably be implied.
Threats to Distribute
Several Australian jurisdictions have also created offences to cover the threat to distribute an intimate image. This recognises that harm not only occurs where images are actually distributed but also where a person uses the threat of distribution to coerce, control or humiliate the subject of the image. A key consideration in the introduction of such offences is the recognition that such threats can occur particularly in the context of family violence or coercion. 79 In NSW, it is an offence to threaten to distribute an image of another without that person’s consent. 80 The threat may be made by any conduct, be explicit or implicit, and may be conditional or unconditional. 81 There is no need for proof that the person actually feared that the threat would be carried out. 82 This makes clear that the focus is on the behaviour of the offender rather than on the perception of the person who is being threatened. Similarly, in Victoria, it is an offence to threaten to distribute an intimate image where the distribution would be contrary to community standards of acceptable conduct. 83 A ‘threat’ may be made by any conduct and may be explicit or implied. 84
Distribution or Threat to Distribute in a Way That Is Contrary to Community Standards of Acceptable Conduct
In Victoria, for the offences of distributing an intimate image or threatening to distribute an intimate image, there is a requirement that this is done in a manner that is contrary to community standards of acceptable conduct. 85 The Summary Offences Act 1996 (Vic) defines the factors which should be assessed in determining community standards of acceptable conduct. These include: the nature and content of the image; the circumstances in which the image was captured; the circumstances in which the image was distributed; the age, intellectual capacity, vulnerability or other relevant circumstances of a person depicted in the image; and the degree to which the distribution of the image affects the privacy of a person depicted in the image. 86 This element can act to prevent overreach of the criminal law by introducing an objective control mechanism that eliminates inoffensive conduct. Such an assessment may also mean that images which are not sexual or private but might be considered intimate may not be considered contrary to community standards of acceptable conduct. Other jurisdictions while not requiring proof of this element by the prosecution have created a defence for conduct of the accused that a reasonable person would consider acceptable. 87 This will be discussed further below.
Mental Element
The mental element is the main factor which distinguishes the degree of culpability of the offender. There is significant difference between jurisdictions in whether a mental element is required and what it attaches to.
Requiring Intention to Harm or Humiliate the Victim
Some offences in jurisdictions outside Australia require a mental element which goes beyond the physical elements of the offence. Thus, to be liable for the offence, the person must intend to disseminate an intimate image knowing that the other person does not consent to the distribution in the way that it is distributed—and also the person must distribute the image with the intention to humiliate, or cause emotional harm or distress to the victim. This is the approach taken in England and Wales, 88 where it is an offence to disclose a private sexual photograph or film without the consent of the individual depicted if it is done with the intent to cause that victim distress. 89 However, the fact that distress is a natural and probable consequence of disclosure cannot be taken to indicate that a person did have this intention. 90
This offence definition captures the most culpable form of non-consensual distribution of an intimate image and is in line with conceptions of serious wrongdoing. A major issue with this offence is that it may be difficult to establish that a perpetrator did have the requisite intention to cause harm. It may also be argued that liability should not be based on whether a person intended to cause harm provided they had the requisite mental elements in relation to the distribution and the lack of consent. When considering the creation of a new offence, the Australian Legal and Constitutional Affairs References Committee did consider whether an intent to harm the subject of the image should be required. It received submissions which argued that the main focus ought to be on the lack of consent to distribution, not on whether any harm to the victim is intended. 91 It was argued that a requirement to prove the latter would allow an accused to submit that they did not turn their mind to the harm to the subject but instead disseminated an image without thinking of any possible harm. This could lead to arguments such as, the image was distributed for no reason other than ‘for a laugh’ or ‘that they were trying to entertain their mates’. 92 The Office of the Department of Public Prosecutions in NSW also felt that no further intention should be required, commenting that, ‘there can be no innocent intent. The only inference available is that the person intends to do the harm, there can be no other reason for distributing the image’. 93 The Australian Legal and Constitutional Affairs References Committee was swayed by such arguments, finding that whether the penetrator intended to harm should not be the focus of the offence. Rather, ‘the acts of non-consensually taking and/or sharing intimate images should be sufficient for an offence to have been committed’. 94 This has been the approach taken by several Australian jurisdictions as noted below. While the concerns expressed about requiring such a further intention have some merit, it may be appropriate to create such an offence as part of a hierarchy of offences addressing the non-consensual distribution of intimate images. This offence, as the most culpable form of distributing an intimate image, would sit at the apex of the hierarchy, with a lower level offence, or offences, where the image is distributed without such further, or specific, intention.
Requiring Mental Element Only in Relation to Distribution and Lack of Consent
In most Australian jurisdictions that have created new offences, there is a requirement that the perpetrator intends to distribute an intimate image and knows, or is reckless, about the lack of consent of the subject of the image. 95 This means that a person cannot be liable for recklessly or carelessly sharing an image alone. While there is no express mental element attached to the characterisation of the image as ‘intimate’, it is likely that this would be regarded as a strict liability circumstance as is the case with ‘indecent’ in relation to publication of an indecent article. 96 This would mean that an accused would be able to raise the excuse of mistake of fact if they honestly and reasonably believed that the image was not intimate, which would then need disproving by the prosecution.
The requirement of an intention to distribute with knowledge or recklessness about the lack of consent of the subject of the image is in line with the requirement that the behaviour of the perpetrator should be sufficiently culpable to warrant being subject to the criminal law. Recklessness is likely to be interpreted in line with the general approach in criminal law as requiring advertent recklessness, 97 that is, that the person foresaw that it was possible that the subject was not consenting to the distribution.
Interestingly, South Australia and Victoria attached mental elements only to part of the physical elements. The South Australian provision makes no mention of a mental element in relation to the distribution of an invasive image. This could mean that this offence reaches too far, given the ease at which images can be distributed with new technology, including inadvertently. However, it may be taken that this word—distribution—naturally implies that behaviour is undertaken intentionally and thus intention may be read into this element. There is express mention that the perpetrator must have known or had reason to believe that the subject of the image did not consent. 98 In Victoria, the perpetrator must intentionally distribute an intimate image, but there is no requirement that the perpetrator knew or realised that there was no consent. Rather a person would not be liable if it could be reasonably considered that the subject of the image expressly or impliedly consented. 99 This makes the offences somewhat objective.
The ease with which images can be distributed because of new technologies means that there should be caution about less demanding mental elements, such as recklessness or negligence about distribution. There is no doubt that the subject of an intimate image may suffer substantial harm even if the perpetrator did not intend to distribute the image or did not know or realise the possibility that the subject of the image was not consenting. However, extending liability to such cases may be considered to lower the level of culpability required for conviction too far. As already noted, only substantial wrongdoing should be subject to criminal law and that requires an assessment of the harm to the person and the level of culpability of the perpetrator. This is particularly important in light of technology, the very design and object of which is information dissemination and distribution across networks or the Internet.
Requiring Mental Element Only in Relation to Threat to Distribute and Lack of Consent
Offences that relate to threatening to distribute an image generally require that the person making the threat intends that the person will believe that the threat will be carried out. In Victoria, this offence also covers where the perpetrator intends or believes that the subject of the image will probably believe that the threat will be carried out. 100 In NSW, the offence requires that a person intends to cause the subject to fear the threat will be carried out (there is no need for a corresponding physical element, that is, the person need not actually be put in fear). 101 These offences focus on the intention of the perpetrator and their level of culpability rather than on the perception of the subject of the image.
No Mental Element
Recently, a Bill was introduced in Western Australia which proposes to amend the Criminal Code of Western Australia, by creating, inter alia, a new offence of distribution of an intimate image.
102
The offence proposed goes further than most offences in other Australian jurisdictions and in England and Wales by not requiring proof of any mental element. The new offence would be established if a person distributes an intimate image of another person and that person does not consent to the distribution. There is no mention of any mental element on the part of the distributor. In place of any mental element, an accused may raise one of the specific excuses provided in relation to this offence (for example, that a reasonable person would consider the distribution of the image to be acceptable based on a range of factors including the nature of the act and the circumstances in which it was distributed).
103
Liability may also be negated through the general provisions relating to criminal responsibility found in Chapter V of the Western Australian Criminal Code. In particular, s. 24 provides that: A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as the person believed to exist.
The concern with such an approach to this behaviour is that is lowers the threshold for culpability to an objective standard (that is, any mistaken belief must be based on reasonable grounds 111 or a reasonable person must consider the distribution acceptable 112 ). This is appropriate in relation to sexual assaults where the perpetrator must physically act some way in the presence of the victim. As Temkin notes ‘it is possible for a man to ascertain whether a woman is consenting with minimal effort. She is there next to him. He only has to ask’. 113 Thus, the objections to requiring proof of mens rea in relation to sexual assault are ‘outweighed in the case of sexual offences, where the parties are necessarily in close proximity and where intercourse without consent would be a fundamental violation of the victim’. 114 While the behaviour under consideration may lead to harms similar to those experienced by victims of sexual assault, the situation is different in significant ways in relation to the non-consensual distribution of an intimate image. The non-consensual distribution will often not take place in the physical presence of the subject, thus not providing the prompt to consider whether the subject is consenting or appreciate the full consequences and harms of the behaviour. Furthermore, the very nature of the distribution of intimate images through new technologies means that in an instant, with the swipe or tap of a finger, images can be distributed widely with no possibility of recall. This does not detract from the substantial harms that may result from the non-consensual distribution of an intimate image, but the level of culpability may differ significantly. A single offence defined in this way may cover too broad a range of culpable forms of behaviour.
Defences/Negations of Liability
In some Australian jurisdictions, a defence is available if the reasonable person would consider the conduct of the accused acceptable. In NSW this issue is to be determined by reference to a range of specified factors, including: the nature and content of the image the circumstances in which the image was recorded or distributed; the age, intellectual capacity, vulnerability or other relevant circumstances of the person depicted in the image; the degree to which the accused person’s actions affect the privacy of the person depicted in the image; and the relationship between the accused person and the person depicted in the image. 115 These factors are similar to those to be considered in Victoria in order to assess whether the image was distributed in a manner contrary to community standards of acceptable conduct. The main difference between these approaches is that in Victoria, this must be proven by the prosecution before there can be a conviction, whereas in NSW the prosecution need not prove that a reasonable person would not find the distribution acceptable. Thus, the acceptability of distribution is something which only needs disproving by the prosecution when raised by the defendant. These provisions protect against overreach of the criminal law by preventing conviction where the distribution of an image would be regarded as acceptable by the ordinary person. Other exceptions to liability may include, for instance, the dissemination of an image for medical or scientific purposes, where done by law enforcement officers for a genuine law enforcement purpose, or where required by a court or reasonably necessary for legal proceedings. 116 In England and Wales, there is also a defence if the disclosure was for journalistic purposes and the person reasonably believed that, in the circumstances, publication would be in the public interest. 117 A further defence in England and Wales applies where the person reasonably believed the image had been disclosed for reward and had no reason to believe the subject had not consented to the release for reward. 118
A Ladder of Offences
A review of the offences created, or proposed, in Australia and England and Wales reveals that despite some differences in the definition of the physical elements of the new offences a main distinction lies in whether and what mental elements must be established. It is clear that in terms of culpability, intentionally distributing an intimate image knowing that the subject of that image does not consent to distribution is significantly more culpable than engaging in the same behaviour without thinking about the distribution or without thinking about whether there is consent. If an offence such as the one proposed in Western Australia were to be adopted, then it should be separate to, and accompany, the adoption of an offence requiring proof of mental elements in relation to the physical elements of the offence. A similar approach is taken in Western Australia in relation to the offence of stalking, whereby a person is liable for a crime (indictable offence 119 ) if they pursue with an intent to intimidate, 120 but a simple (summary 121 ) offence where they do not have this intention but the behaviour could reasonably be expected to intimidate (an objective standard). 122
An aggravated form may also be considered where there is a further intention to cause harm or to humiliate the subject of the image. This would create a clear hierarchy of offences, with scaffolded penalties, to address the varied levels of culpability associated with the non-consensual distribution of intimate images. Such an approach would be in line with the ladder principle adopted by the English Law Commission when recommending a new structure to the homicide offences in England and Wales.
123
According to this principle, offences should be divided such that each offence is not so wide that it spans great variations in gravity.
124
To support such an approach, the Commission cited Lord Bingham: The interests of justice are not served if a defendant who has committed a lesser offence is either convicted of a greater offence, exposing him to greater punishment than his crime deserves, or acquitted altogether, enabling him to escape the measure of punishment that his crime deserves. The objective must be that defendants are neither over-convicted nor under-convicted.
125
Conclusion
New technologies have profoundly changed the way in which social interaction takes place. This has opened up new opportunities and challenges around the taking and sharing of intimate images. Social etiquette and manners are evolving to keep up with these changes. More problematically, the new modes of communication are also creating new ways of perpetuating forms of sexual abuse. There was clearly a need to create new offences to deal with the non-consensual distribution of intimate images, or threats to distribute, given the substantial harms that such behaviour may cause. Criminal law has an important role in aiming to prevent such behaviours, not just through the specific and general deterrent effect of censuring and punishing those who distribute intimate images without consent but also through its ‘educative, moralizing and habituative’ functions. 130 Criminal law represents a clear expression of society’s disapproval of behaviour, which can create ‘unconscious inhibitions against crime’ and foster respectful behaviour. 131 The key question is how such new criminal offences should be defined and what behaviours they should aim to cover. The new offence in England and Wales is more restrictive than the offences generally created in Australia. The requirement that there is an intention to cause harm to a person aims to capture the most culpable form of distributing private sexual images without consent. However, this may mean that the offence is only available for the most egregious cases. It may also be difficult to prove such an intention and without alternative offences a person may evade liability. The offences in Australia generally strike a better approach by still requiring that there is an intention to distribute and knowledge or at least recklessness about whether the subject consented to distribution. The approach suggested in Western Australia is problematic in not requiring proof of any mental element and relying on defences to negate liability. This sets the bar of culpability much lower than in other Australian jurisdictions and England and Wales. This approach may, however, be acceptable if this offence is adopted as part of a suite, or ladder, of offences designed to address the non-consensual distribution of intimate images. At the peak of the hierarchy, with the highest penalty, should be the most egregious cases where intimate images are distributed without consent with the intention of humiliating or causing emotional harm to the subject. A tier below this would be cases where intimate images are distributed intentionally and with knowledge that the subject does not consent. Below this could sit offences where no mental element is required, but specific and general defences may negate liability. Such a ladder of offences would appropriately capture the range of culpable scenarios where intimate images are distributed without consent.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.