Earlier this month, the YouTube star Chrissy Chambers won damages in a landmark revenge porn case. Her long fight for justice, and subsequent victory, will pave the way for more victims to seek justice for their experiences of image-based sexual abuse.
The American YouTube personality was able to pursue her case in a British civil court with the aid of crowdfunding. But not all victims of such abuse have the funds or the advantage of being a YouTube sensation to pursue this avenue; these victims are reliant on criminal courts to provide them with justice. And there is significant doubt around the effectiveness of criminal courts to deal with the complexities associated with these cases.
Preliminary findings from my ongoing doctoral research, which examines the effects of revenge pornography and the experience of victims within the criminal justice system, highlight some serious concerns.
Historical cases
In 2015, the criminalisation of image-based sexual abuse within the UK finally indicated that the experiences of revenge porn victims would be recognised. But those who had intimate images shared before April 2015 are reporting matters to the police only to be told that their experiences will not be registered as instances of abuse. A victim of revenge porn who spoke to me about this very issue said that the police:
Didn’t really know what to do. They were like ‘just ring the revenge porn helpline up and try and get them to take the pictures down’ and that was it … basically, he’s got away with it, hasn’t he.
Before the introduction of image-based sexual abuse legislation, the Malicious Communication Act was often the most appropriate law for prosecutions, despite being introduced in 1988 and generally referring to the sending of malicious letters or articles.
With police officers’ understanding of revenge porn now being based on the newer legislation, prosecution under the Malicious Communications Act for similar cases is less likely to be considered. And so police officers may be less likely to consider alternative legislation for those cases which predate April 2015.
Narrow definitions
Even if the offence occurs after April 2015 and therefore can be prosecuted using the 2015 law, victims are still restricted by its narrow definition of sexual material. Cases in which victims are depicted in their underwear (but the pictures aren’t of a sexual nature or don’t feature sexual actions) are unlikely to be considered for prosecution.
Or consider the case of some women in the Muslim community, who might consider themselves in a state of undress when images are publicly shared of them without religious clothing, but to whom the law does not apply. Not recognising this legally is a failure to acknowledge the abuse suffered by a potentially large proportion of victims.
In addition, the activists I interviewed strongly argued that the requirement to prove “intent to cause distress” is fundamentally problematic because any case of revenge porn is “always going to cause distress whether intended or not”. Some activists are therefore adamant that this requirement should be removed. But some lawyers who I interviewed argued that it is needed to prevent excessive criminalisation.
This was further supported by a police officer who told me that having to prove intent made it significantly harder to secure convictions. The need to prove intent to such a high standard is a significant barrier for both victims and police forces.
Anonymity
In cases where the above criteria can be lawfully met, victims are then faced with a lack of anonymity when cases reach court. Victims who have already been publicly shamed, embarrassed, and abused are expected to come forward without the guarantee of anonymity, drawing further publicity to their case and subsequently, their images.
Some victims told me that they would not want anonymity because they wanted to speak out about their experiences, but this was on the condition that they had successfully removed their images from online platforms. In short, the choice of anonymity is vital. Without it, the criminal justice system is not only at risk of causing further trauma to victims, but may well discourage victims from coming forward.
The introduction of image-based sexual abuse law is of course a step in the right direction. But the legal thresholds are too high. Furthermore, the law fails to account for the complexities of this kind of abuse. Consequently, a large proportion of victims are not being protected by the law. Combined with the lack of anonymity, this does little to encourage victims to come forward and, ultimately, risks leaving many victims feeling like their cries for justice are just not being taken seriously enough.
Moving forward, there is a fundamental need to address these issues and redraft the law, which currently does not seem to be fit for purpose.