Proposals to improve protections for victims whose intimate images are taken or shared without their consent have today [26 February 2021] been published by the Law Commission of England and Wales. The proposals include:
- An expansion of the types of behaviours outlawed by existing criminal laws on taking and sharing intimate images without consent to include ‘downblousing’ and sharing altered intimate images, such as deepfakes.
- Criminalising threats to share intimate images (including other forms of ‘sextortion’).
- Automatic anonymity for all victims of intimate image abuse.
- A new framework of offences better focused on this form of criminal conduct and the harm it causes.
The non-consensual taking and sharing of intimate images can have a significant and long-lasting impact on victims. The harms they experience are serious and significant. These can include psychological harm such as anxiety, depression and post-traumatic stress disorder (PTSD), worsening physical health and financial harm either through time off work or through withdrawing from online spaces which reduces access to networking opportunities. In some cases, there have been reports of attempted suicide and self-harm.
However, the law has not kept up with this behaviour, resulting in significant gaps that have left victims unprotected. These gaps include:
- Inconsistency over what type of intimate images are covered. For example, upskirting is currently a criminal offence but downblousing is not. Sharing an altered image – usually involving adding someone’s head to a pornographic image is also not covered.
- Not all motivations for non-consensually taking or sharing an image are covered by current laws. Whilst motivations such as sexual gratification and causing distress are covered (although not consistently), other motivations such as sharing the images as a joke or to coerce an individual are not covered at all.
- Threats to share are not adequately covered, especially when a threat was made to humiliate, coerce, control or distress an individual.
The Law Commission’s proposals, which are now being consulted on, aim to ensure that victims are adequately protected from a range of behaviours related to non-consensual taking and sharing of intimate images. The provisional proposals include a new framework of four offences which would cover a broader range of behaviours and motivations.
Professor Penney Lewis, Criminal Law Commissioner at the Law Commission said:
“For victims, having their intimate images taken or shared without consent can be an incredibly damaging and humiliating experience. However, the law does not adequately protect victims from this behaviour and reform is clearly needed.
“Our proposals would reform the existing law and ensure that victims are given the protection they need.”
Gina Martin, the campaigner whose efforts led to the criminalisation of upskirting, said:
“During my time campaigning and lobbying for upskirting to be criminalised, I spent a significant amount of time with victims of intimate image abuse. Like me, they felt that their experience either wasn’t understood, captured adequately in law or taken as seriously as it should be by the authorities. This shows a huge gap in our efforts to protect people.
“I support the Law Commission’s approach to improving protections for victims of this abuse and encourage everyone to respond to this important consultation paper.”
Julia Mulligan, APCC Victims’ Co-Lead and North Yorkshire Police, Fire and Crime Commissioner, said:
“The Law Commission’s recommendation to extend anonymity to all victims of intimate image abuse, including so-called revenge porn, is absolutely the right one. I welcome their report, not just for this conclusion but for all their attempts to future-proof laws so they reflect the way technology is changing our world.
“In 2015, I launched the ‘No More Naming’ campaign to protect the identities of those who have had their most private moments shared online. 16,000 people signed our petition and victims shared their stories with us to try and make sure others didn’t have to go through what they had. The Commission’s conclusions are down to their bravery and commitment.
“Changing the law will mean the system no longer causes pain and distress to those who it should be protecting. It will support victims not stigmatise them, is long overdue and now needs to happen as soon as possible.”
Proposals: The new framework of offences
We believe a new framework of offences is needed to cover the behaviours identified in the Consultation Paper. The proposed framework would provide a more unified and structured approach, providing victims with better protection and ensuring that appropriate orders are available to the courts when dealing with these offences.
Four new offences:
- A “base” offence which prohibits the taking or sharing of an intimate image of a depicted person where they do not consent and there is no reasonable belief in consent by the perpetrator.
- An additional more serious offence of taking or sharing an intimate image without the consent of the depicted person, with the intention to humiliate, alarm or distress the victim.
- A further additional serious offence of taking or sharing an intimate image, without the consent of the depicted person and the perpetrator having no reasonable belief in consent, for the purpose of either their own or someone else’s sexual gratification.
- An offence of threatening to share an intimate image where the threat is either intended to cause the depicted person to fear that the image will be shared or the perpetrator is reckless as to whether the depicted person will fear the threat will be carried out.
This framework would remove the need to prove an intent to cause distress in order to prosecute cases. We have heard from many victims that requiring proof of a specific motive has led to no prosecution taking place.
Victim anonymity and protections
Victims of the new intimate image abuse offences would have lifetime anonymity as well as automatic eligibility for special measures (such as giving evidence via a live link or behind a screen at trial).
On conviction, where a sufficiently serious offence has been committed for the purpose of sexual gratification, a sentencing court would be required to add the offender to the ‘sex offenders’ register’. This would ensure that the police can monitor their whereabouts and appropriately risk manage sex offenders within the community.
Sexual Harm Prevention Orders, including restrictions on foreign travel, accessing particular types of places or websites, or coming into contact with particular individuals, would also be available in appropriate cases where the courts consider it necessary to protect the public or particular members of the public from sexual harm.
Proposals: Intimate images
In addition to the existing behaviours which are currently criminalised, namely the disclosure of private sexual images, upskirting and voyeurism, our proposals would include the following forms of intimate image abuse:
- Sharing an altered image – including sexualised photoshopping and deepfake pornography where the victim’s face is put on the body of a pornographic actor.
- Downblousing – taking an image, usually from above, down a female’s top. This behaviour would become an offence like upskirting already is.
- Sharing an intimate image of the depicted person with the depicted person – for example, for the purpose of causing the victim distress, as means to exert control and power, to extort money or further images or leading to a further threat of some sort.
- Recording or streaming rapes or sexual assaults – including but not limited to cases where the victim is incapacitated whilst being attacked.
- Sextortion – threatening to share an intimate image to extort the victim for money or more images (or both).
Our proposals also include a defence of reasonable excuse which would cover taking or sharing an image if:
- the defendant reasonably believed it was necessary for the purposes of preventing, detecting, investigating or prosecuting crime, for legal proceedings or for the administration of justice.
- they were taking or sharing for a genuine medical, scientific or educational purpose.
- taking or sharing an image was in the public interest.
The Law Commission is consulting on these proposals and wants to hear from a range of stakeholders including victims, experts and lawyers. The consultation period will close on 27 May 2021, following which, the Law Commission will use the responses to help develop final recommendations for reform.