More than just ‘revenge porn’: tackling the misuse of private sexual images

Earlier this month the Scottish Government announced plans to introduce a new criminal law of disclosing an ‘intimate photograph or film’. Its aim is to tackle the problem of so-called ‘revenge porn’ and makes clear that the non-consensual distribution, or threat to disclose, private sexual images is criminal. This follows the criminalisation of such conduct in England & Wales in March 2015.

Responding to the proposals, Police Scotland have warned that the restriction of the offence to images only risks creating a two-tiered "justice lottery". They argue that the proposed law would leave victims who are harassed and abused by the disclosure of intimate written text, audio files and emails, as opposed to such images, less well protected.

While we recognise the abusive nature of such conduct, we are not convinced that extending the proposed law beyond intimate images is the solution.

The misuse of private sexual images is a new way of perpetrating old harms - the harassment and abuse of women (and it is mainly women). The harm comes from the widespread dissemination of private, sexual images. It is the images that go viral on social media, and on the internet more generally, and that end up on dedicated porn websites.

While sharing of intimate written messages is a breach of privacy and undoubtedly will cause harm to the victims, it is images that become pornographic material, that remain discoverable whenever a victim’s name is typed into Google. It is the disclosure of these imitate images that normalises sex as a means of control and humiliation and that lead women to self-censor, to retreat offline.

In this way, the non-consensual disclosure of private sexual images constitutes a serious breach of women’s human’s rights to privacy, to dignity and to sexual expression. And it is these harms and abuse of rights that the new law needs to address.

To do so effectively, further changes to the proposals are required, particularly the removal of the need to show the perpetrator deliberately or recklessly caused the victim fear, alarm or distress. This is a significant limitation on the law.

Private sexual images are disclosed for many reasons – to make money or for 'a laugh’ – and often, particularly in the case of hacked images, there is no malice against the particular women whose images have been shared. An intention to disclose private sexual images should be sufficient.

The law must focus on the many and varied harms suffered by the victim – and less on the intention of the perpetrator. For it is only by doing this that it will avoid the genuine justice lottery in the current law.

Clare McGlynn is a Professor of Law at Durham Law School and Erika Rackley​ is a Professor of Law at the University of Birmingham