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The law must focus on consent when it tackles revenge porn

Earlier this week, the House of Lords debated what the prime minister, David Cameron, has described as the “appalling” and “dreadful” practice of so-called revenge pornography. This is where explicit images…

We’re in danger of getting revenge porn rules very wrong. observador oculto, CC BY-NC-ND

Earlier this week, the House of Lords debated what the prime minister, David Cameron, has described as the “appalling” and “dreadful” practice of so-called revenge pornography. This is where explicit images of a victim are distributed (usually online) without their consent.

The government has agreed to bring forward legislation after the summer recess. When it does so, it is vital that it focuses on consent. The key word here is “revenge”, not “porn”.

Revenge porn images or videos are usually either uploaded to standard social media websites such as Facebook or submitted to websites specifically set up for the purpose. Legislation prohibiting such behaviour has been adopted or is being considered in a number of jurisdictions including in the US, Israel, Canada and Japan.

Of course, careful consideration is needed before we add another layer of regulation to this problem.

Making the law

A specific offence prohibiting the distribution of non-consensual intimate images would not only make it easier for victims to come forward and give the police a greater incentive to prosecute these activities, but crucially it would also make clear that distributing sexual images without consent is wrong.

That said, we need to be careful how such a law is drafted. For a start, labels matter. Discussions as to whether to criminalise revenge porn are taking place alongside those already in train about whether to bring the possession of rape pornography -– an increasingly popular genre -– within the remit of current extreme pornography legislation.

And a proposed amendment to the law to the Criminal Justice and Courts Bill states that a defendant must distribute revenge porn images with the intention that they, or a third party, gains sexual gratification from doing so. This fails to appreciate the nature and harm of revenge pornography.

Labels matter because, despite similarities in name and, to some extent, the explicit nature of their content, revenge pornography is not porn. It does not exist to titillate or excite. It is a form of, and is motivated by, harassment and abuse. This is recognised by Scottish Women’s Aid in its powerful campaign to stop revenge porn in Scotland.

The posting, or threat of posting, of sexually explicit photographs or videos online, without the consent of those depicted, is used to threaten, control, abuse, bully and humiliate those in the images or film. It is a gross violation of an individual’s privacy. The explicit nature of the images is simply the method or vehicle though which the revenge is exacted.

Wrong focus

Labels also matter because they effect how we conceive and frame the issues at stake. There is a danger that the framing of this form of harassment and abuse as “pornography” shifts attention away from the motivations and actions of the perpetrator of the abuse and onto the content of the image and actions of the victim.

This, in turn, facilitates victim-blaming attitudes and questions along the lines of “why did she pose for the pictures in the first place?” Or, even worse, headlines such as the Daily Mail’s: Want to stop revenge porn? Just keep your clothes on.

This assumes that any pictures are taken in a non-coercive context which may not always the case. We know from research by Maddy Coy and others, for example, that there is considerable pressure on young people to share intimate images of themselves. And aside from this, why should women have to keep their clothes on? Can’t we just assume that if we share intimate photos, they will only be distributed with our consent?

These blaming attitudes fuel a sense that women (usually) should be ashamed of their actions or body. These are exactly the feelings –- humiliation, shame and regret –- that the abuser typically wants his or her victim to experience when they post the pictures. For the same reasons, we should not –- as has been suggested –- get caught up in debate about which body parts must be in an image before it can be counted as revenge porn.

It is vital that the focus is on the perpetrator’s use of an absence of consent to harass and abuse. Again proposals to date have fallen somewhat short of this standard. The law must be clear that no one should be allowed to assume that they can upload an intimate image of someone unless they have explicit consent.

A consent culture

While a new offence is a start towards public recognition of the harm of revenge pornography, it can only play a small part in reducing the prevalence and the underlying culture that creates and legitimises sexual violence, abuse and harassment in all its forms, including the easy availability of pornographic images of rape and revenge pornography.

Addressing this requires a government commitment not just to headline-making legislative reform, but also to law enforcement and, amongst other things, the effective implementation of any new offence and compulsory sex and relationships education in schools –- as advocated by many groups including the End Violence Against Women Coalition –- and to taking the greater public debate and campaigns around issues of consent, privacy and victim-blaming.