Sexual Violence in the Digital Age
| DOI | 10.1177/0964663915624273 |
| Date | 01 August 2016 |
| Published date | 01 August 2016 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2016, Vol. 25(4) 397–418
Sexual Violence in the
ª The Author(s) 2016
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DOI: 10.1177/0964663915624273
and Limits of Criminal Law
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Nicola Henry
La Trobe University, Australia
Anastasia Powell
RMIT University, Australia
Abstract
Considerable scholarly attention has been paid to a range of criminal behaviours that are
perpetrated with the aid of digital technologies. Much of this focus, however, has been on
high-tech computer crimes, such as hacking, online fraud and identity theft, or child
exploitation material and cyberbullying. Less attention has been paid to ‘technology-
facilitated sexual violence’, where new technologies are used as tools to perpetrate or
extend the harm of a sexual assault, extend control and abuse in a domestic violence
situation, or distribute sexual or intimate images of another without their consent. In this
article, we focus on the scope and limitations of criminal legislation for responding to
these varied but interconnected gendered harms. We argue that although there have
been some developments in a range of international jurisdictions, particularly relating to
the phenomenon of ‘revenge pornography’, much more needs to be done both within
and beyond the law. Whilst we support the intervention of the criminal law, we argue
that equal attention must be given to policies and practices of educators, law enforce-
ment agencies, service providers, online communities and social media networks to fulfil
the promise of equal and ethical digital citizenship.
Keywords
Criminal law, cybercrime, revenge pornography, sexual violence, technology
Corresponding author:
Nicola Henry, La Trobe University, Bundoora Campus, Melbourne, Victoria 3086, Australia.
Email: n.henry@latrobe.edu.au
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Social & Legal Studies 25(4)
Introduction
There is growing media, activist, practitioner, legal and scholarly attention to the phe-
nomenon of technology-facilitated sexual violence (TFSV), where mobile and online
technologies are used as tools to blackmail, control, coerce, harass, humiliate, objectify
or violate another person. Part of the challenge is to devise appropriate terminology to
describe a vast array of different gender-based online harms such as ‘revenge pornogra-
phy’, ‘virtual rape’, ‘cyberstalking’ and ‘online gender-based hate speech’ as well as the
use of new technologies to perpetrate more traditional or conventional crimes, such as
domestic violence or sexual assault. Existing terminology and the laws that govern such
offences in many jurisdictions internationally do not adequately capture the scope,
nature or intersection of such harms. Legislative and policy responses frequently treat
existing and new technologies merely as ‘tools’ of abuse and as such elide the unique
ways in which victim survivors experience harms (Henry and Powell, 2015b). These
behaviours are frequently framed in public discourse using euphemistic, titillating or
narrow language that produces a paradigmatic conceptualization of the behaviour (e.g.
‘revenge porn’) and in the process excludes other related behaviours or leads to both vic-
tim blaming and perpetrator exoneration. On the other hand, focusing more broadly on
the phenomenon of TFSV provides an opportunity to reflect on the similarities among
diverse behaviours, impacts and responses as well as the problematic language surround-
ing them.
In this article, we examine the scope and limitations of criminal laws for responding
to TFSV. We draw predominantly on Australian law as a means to illustrate the ways in
which a common law country is grappling with these issues and the adequacy or inade-
quacy of current approaches within this context. We examine the emerging literature on
TFSV and the criminal law (both in Australia and internationally) and critically examine
legislation as well as case law. We argue that although perpetrators can be prosecuted
under existing criminal laws, these laws are often ill-equipped to capture the gendered
harms resulting from these behaviours. Part of the issue, we argue, concerns law’s pacing
problem. Law has typically been slow to respond to the emergence of new technologies
as tools of abuse. Existing laws are often inconsistent, outdated and poorly enforced
across state, territory and federal jurisdictions in Australia (Henry and Powell, 2015a).
Moreover, law is often treated as the most effective, if not sole, remedy for such harms.
Although we focus specifically on the role of criminal law, we conclude the article by
arguing that attention must be given to broader measures both within and beyond law
to tackle the problem of digital abuse and violence.
In the article, we first conceptualize the phenomenon of TFSV as a form of gender-
based violence. We then explore a range of different behaviours that are encompassed
under this term and the array of existing criminal laws for responding to each of these
behaviours.
TFSV and Harassment: A Continuum of Gendered Violence
Although there is currently a lack of empirical data on the prevalence of online forms of
sexual violence and harassment, and as such little is known about the gender of victims
Henry and Powell
399
and perpetrators, or the causes of these behaviours, we hypothesize that TFSV is a gen-
dered phenomenon for three interconnected reasons. First, research to date supports the
theory that although not the exclusive victims of violence, women and girls are the main
targets of online digital sexualized violence. Studies on ‘sexting’, for instance, show that
young women are more likely than young men to send explicit images of themselves (via
mobile phone or other means) as a result of pressure or coercion from their male partners
or peers (Drouin et al., 2015; Ringrose et al., 2012). Other studies suggest that women
and girls are the primary targets of the non-consensual distribution of intimate images
online (revenge porn) (Citron and Franks, 2014; CCRI, 2014). Research also consistently
points to the prevalence of sexual violence in ‘offline’ contexts, where women and girls
are disproportionately the victims of sexual harassment, domestic violence and sexual
violence (see e.g. ABS, 2006, 2013; Heenan and Murray, 2006).
Second, the impacts of these behaviours are gendered because women and girls may
experience adverse impacts due the persistence of outdated myths and expectations sur-
rounding sexual norms and expectations for women specifically.1 And third, regardless
of the gender of the perpetrator (or indeed the victim), a key factor underlying the perpe-
tration of sexual violence is the social and structural context of gender hierarchization –
a ‘historically constructed pattern of power relations between men and women and defini-
tions of femininity and masculinity’ (Connell, 1987: 98–99).
In this article, we claim that TFSV is fundamentally an issue of gender. We acknowl-
edge that men and boys are also subjected to TFSV and that these harms are likewise
significant. Nonetheless, it is important to note that women and girls may be targeted for
particular forms of digital abuse (e.g. sexual assault or revenge porn) precisely because
of their gender and the perpetrator’s intention to ‘slut-shame’. We also acknowledge the
adverse impacts on already marginalized members of the community on the basis of gen-
der, sexuality, race and religion. In perhaps the majority of cases of TFSV, whether
against male or females, or members of particular ethnicities, races, religions, or gender
identity or sexual orientation, the motivation for the behaviour stems essentially from the
objectification and debasement of the ‘other’ as many of our examples throughout the
article show.
In our discussion, we categorize these different behaviours in turn and give an expla-
nation as to how criminal law has addressed these harms, taking into account the scope of
law (what is/is not covered); the extent to which legislation captures the unique harms of
digital abuse; and any outstanding issues. We acknowledge that there are significant
overlaps between these different categories.2
Dimensions of Digital Sexualized Violence
Revenge Porn: The Distribution of Sexual or Intimate Images Without Consent
The terms revenge porn, ‘non-consensual sexting’, ‘involuntary porn’ (Burns, 2015) and
‘non-consensual pornography’ (Citron and Franks, 2014; Franks, 2015) are used inter-
changeably to refer to the distribution of sexually explicit or intimate images (photos
or videos) without the consent of the subject.3 In some instances, the victim has taken
the image herself/himself (a ‘selfie’), or consented to someone else taking the image
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Social & Legal Studies 25(4)
of them, but has not consented to its distribution. In other cases, images have been doc-
tored by superimposing the face or identity of a victim onto an existing pornographic
image, or intimate images have been hacked from the victim’s computer or mobile
device. In further cases, nude or semi-nude images have been taken when a victim is
asleep, unconscious, alcohol or drug affected and/or during a sexual assault and then dis-
tributed among peer networks or shared online (see e.g. Powell, 2015, and discussion
below).4
In one Australian case, a man threatened to distribute a topless photo of his victim in
order to coerce her to have sex with him after she told him she wanted to end their casual
sexual relationship (Bryan, 2015). Other instances involve the more ‘conventional’ or
paradigmatic revenge...
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