A Ladder Approach to Criminalising Revenge Pornography
| Date | 01 February 2019 |
| Published date | 01 February 2019 |
| Author | Tyrone Kirchengast,Thomas Crofts |
| DOI | 10.1177/0022018318814361 |
| Subject Matter | Articles |
Article
A Ladder Approach to Criminalising
Revenge Pornography
Thomas Crofts
University of Sydney, Australia
Tyrone Kirchengast
University of Sydney, Australia
Abstract
The ability to distribute private intimate imagesacrosspublicnetworksincluding 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 (collo-
quially 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 ser-
iousness of harm and culpability of the perpetrator.
Keywords
Revenge pornography, criminalisation, ladder principle, non-consensual distribution of an
intimate image
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
Corresponding author:
Thomas Crofts, University of Sydney, Sydney 2006, NSW, Australia.
E-mail: thomas.crofts@sydney.edu.au
1. This term has been criticised because not all perpetrators are necessarily motivated by revenge and not all content may be
popularlyunderstood to be pornographic. Furthermore,by referring to the phenomena as pornography,the consent of the victim
to the takingof the image may be assumed, and evenwhere an image was originally takenwith consent, it obfuscates focusfrom
consequencesof the non-consensual disseminationof that image. See T Gregory, ‘Sexting andthe Politics of the Image: When
The Journal of Criminal Law
2019, Vol. 83(1) 87–103
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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 resultin g from this behaviour and varied levels of cu lpability, 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 distributeanintimateimage.
10
This article
reviews the need for criminal law protections and the appro priateness of offences that have been
the Invisible Becomes Visible in a Consensus Democracy’ (2015) 2(4) Porn Studies 243; C McGlynn, E Rackley and R
Houghton, ‘Beyond“Revenge Porn”: The Continuum of Image-BasedSexual Abuse’ (2017) 25 Feminist LegalStudies 25–46.
2. The characterisation of the images under discussion and subject to criminalisation varies across jurisdictions (as discussed
below). For consistency, this article adopts the term ‘intimate’.
3. E Stark, Coercive Control: How Men Entrap Women in Personal Life (OUP, London, 2009); M Dragiewicz, J Burgess,
A Matamoros-Fernandez, M Salter, N Suzor, D Woodlock and B Harris, ‘Technology Facilitated Coercive Control: Domestic
Violence and the Competing Roles of Digital Media Platforms’ (2018) 18 Feminist Media Studies 609.
4. McGlynn and others (n 1); A Powell and N Henry, Sexual Violence in a Digital Age (Palgrave Macmillan, London 2017); L
Kelly, ‘Standing the Test of Time? Reflections on the Concept of the Continuum of Sexual Violence’ in J Brown and S
Walklate (eds), Handbook on Sexual Violence (Routledge, London, 2012), xvii–xxvi; L Kelly, Surviving Sexual Violence
(Polity, Cambridge, 1988).
5. Powell and Henry (n 4) at 27–9.
6. See, for instance, J Ward, ‘What Are You Doing on Tinder? Impression Management on a Matchmaking Mobile App’ (2017)
20(11) Information, Communication & Society 1644. <https://www.tandfonline.com/doi/full/10.1080/1369118X.2016.
1252412> accessed 12 October 2018; K Albury and P Byron, ‘Safe on My Phone? Same-Sex Attracted Young People’s
Negotiations of Intimacy, Visibility, and Risk on Digital Hook-Up Apps’ (2016) 2(4) Social Media and Society 1.
7. The Australian Senate Legal and Constitutional Affairs References Committee preferred a similar phrase using ‘sharing’
rather than ‘distributing’. See The Senate Legal and Constitutional Affairs References Committee, Commonwealth Parliament
of Australia, Phenomenon Colloquially Referred to as ‘Revenge Porn’ (2016), 49. <https://www.aph.gov.au/Parliamentary_
Business/Committees/Senate/Legal_and_Constitutional_Affairs/Revenge_porn/Report> accessed 13 October 2018.
8. See S Bloom, ‘No Vengeance for “Revenge Porn” Victims: Unravelling Why This Latest Female-Centric, Intimate-Partner
Offense Is Still Legal, and Why We Should Criminalize it’ (2014) 42 Fordham Urban Law Journal 233. For discussion of
police response to revenge pornography and knowledge of new revenge pornography laws, see E Bond and K Tyrrell,
‘Understanding Revenge Pornography: A National Survey of Police Officers and Staff in England and Wales’ (2018) Journal
of Interpersonal Violence <https://doi.org/10.1177/0886260518760011> accessed 19 November 2018.
9. For discussion of the emergence of revenge pornography, see, for example, M Salter and T Crofts, ‘Responding to Revenge
Porn: Challenges to Online Legal Impunity’ in L Comella and S Tarrant (eds), New Views on Pornography: Sexuality, Politics,
and the Law (Praeger Publishers, California, 2015) 233.
10. There are also offences related to the creation or recording of intimate images without consent. Such offences will not be
directly discussed in this article.
88 The Journal of Criminal Law 83(1)
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