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4 March 2022

Should consuming revenge porn be a criminal offence?

Without an audience, revenge porn doesn't work. Those who view these images need to understand they are participants in the offence, and the harm it can do.

By Helen Frowe and Jonathan Parry

In recent years there have been several high-profile cases of so-called revenge porn, where someone shares intimate images of a person without their consent.

In 2019, the Daily Mail published naked photographs of Congresswoman Katie Hill. Stolen images of female celebrities have been made available or offered for sale online. And these cases are just the tip of the iceberg: research suggests that there are millions of victims of this phenomenon, with reports of cases significantly increasing during the pandemic lockdowns. The majority of victims are women, with gay men making up a substantial minority.

Sharing intimate images without the subject’s consent is a criminal offence in most US states. If found guilty, offenders face up to five years in prison, a hefty fine and possible registration as a sex offender. Sharing such images has been illegal in the UK since 2015. And under legislation introduced earlier this year, it is also illegal to threaten to share them.

These developments are welcome. But legal, political and public debates about revenge porn ignore a significant part of the problem – namely, the consumers of these images. Thousands – probably hundreds of thousands – of people visit websites in order to view these non-consensually shared images, often paying for the privilege. Why is so little attention paid to these crucial actors in the revenge porn industry?

[see also: Snapchat streaks and revenge porn: what it’s like to be a teen online]

One explanation is that while many people grant that distributing these images is wrong – and criminalisation is therefore appropriate – they assume that merely looking at them is not. After all, the images themselves don’t usually depict anything immoral or criminal – except, of course, if they are images of children.

The idea that there can’t be anything wrong with “just looking” might draw implicit support from the idea that what happens “in our heads” cannot wrong others and is none of the law’s business, even if it reflects badly on our characters. As the philosopher George Sher puts it, “the realm of the purely mental is best regarded as morality-free… In that most private of realms, we can do anything we want, and the only price that we pay is our being the kinds of people we are.”

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Yet this response seems unpersuasive, for at least two reasons. The first is that we reject this response when applied to more traditional types of voyeurism. Think of the Airbnb landlords prosecuted for using hidden cameras to spy on their guests, for example, or a peeping Tom watching unwitting victims undress. Both are “just looking” at perfectly permissible acts, but they are clearly acting wrongly and criminalisation of the wrong they commit appears warranted. 

As it stands, consuming revenge porn falls outside of existing voyeurism legislation because these laws typically specify that the victim be observed without their knowledge or consent in a place with a reasonable expectation of privacy. In contrast, the images used in revenge porn are usually taken with the victim’s consent – indeed, they are often taken by the victim themselves. But this seems like an irrelevant distinction in this context.

To see why, imagine that Beth consents to her boyfriend taking some intimate photos of her. Unbeknownst to Beth, her boyfriend invites men in the neighbourhood to watch the photo session through a hole that he has secretly drilled in the wall. Existing voyeurism laws straightforwardly apply to these observers. That Beth consents to creating the intimate images is irrelevant. What matters is that she does not consent to third-party observation. Online revenge porn consumers behave just like these “real-life” voyeurs and should be treated as illicit third-party observers, especially in light of existing laws prohibiting non-consensual sharing of intimate images.  

The second reason to reject the “just looking” response is that, in the case of revenge porn, viewers are not merely passively observing someone else’s wrongdoing. They are participating in that wrongdoing. The people who upload these images aim, specifically, at the public humiliation of the victim. Public humiliation requires an audience; there is no “revenge” if nobody bothers to look.

This means the success of the initial perpetrator’s wrong depends on the participation of revenge porn consumers. And the more people who look at the images, the greater the victim’s pain and humiliation, and the more successful the perpetrator’s plan. There is a very real sense in which each person who looks aggravates the initial wrong, by increasing its harmful effects.

What is more, the effects of revenge porn are not limited to humiliation. They also include the fear of physical attack, risks of suicide and the loss of employment. So, while it may be true that the contents of our minds are beyond the reach of morality and law, it is a mistake to think that this covers looking at revenge porn, since “mere” observation can be a form of participation and complicity in wrongdoing. And insofar as those wrongs are crimes, this participation should also be criminalised.

In case we are worried that consumers are stumbling upon these images by accident while looking for consensual pornography, it’s worth noting that websites hosting this material typically advertise themselves as revenge porn sites. After all, posting such images is primarily intended as a punitive act. Making it clear that the images are being shared without the victim’s consent is integral to the perpetrator’s aim of distressing and humiliating the victim as an act of revenge. Visitors to these sites not only know that they are looking at non-consensually shared images: they deliberately seek them out.

[see also: How to end the poison of online racism]

This bars consumers of revenge porn websites from pleading ignorance. It also helps to illuminate how viewing revenge porn contributes to the wrong suffered by the victim. By intentionally visiting these sites, revenge porn consumers help to create and maintain a community that publicly endorses the disrespectful treatment of the victim. As willing participants in this process of public shaming, they aggravate the initial wrong by further undermining the victim’s dignity, and they should be accordingly charged with a criminal offence.

We might think, somewhat ironically, that the sheer number of people engaged in this wrongful behaviour offers the strongest objection to criminalisation. Yet notice how little sway this argument has in other contexts, such as possession of images of child sexual abuse. Here too, the number of wrongdoers is huge. In 2020, the Internet Watch Foundation recorded 8.8 million attempts to view images of child sexual abuse in the UK in April alone. But few would think that the staggering number of those who consume images of child sexual abuse is an argument against criminalisation.

As the US Supreme Court judge Sonia Sotomayor argues, a “safety-in-numbers exception” to criminal liability would be perverse in cases of child pornography. Rather, there are calls to bring in a new offence of intentionally accessing such images, criminalising not only downloading (and hence “possessing” them), but also viewing them online. This proposal reflects that the wrongdoing lies in the looking, not in the possession. If we grant that merely looking at certain types of images online can be criminal and that the number of perpetrators is not a bar to criminalisation, then these cannot be reasons to avoid criminalising revenge-porn consumption.

Laws pertaining to images of child sexual abuse are also instructive in other ways. Under US law, persons convicted of possession of such images are liable to pay restitution to the specific victims depicted. As one (now adult) victim argues, this law is valuable because it “upholds both the victim’s need for compensation and help[s] the offender realise they have hurt an actual person”. The same rationales arguably apply to revenge porn. Criminalising revenge porn consumption is one way to make consumers understand their role in criminal behaviour and in causing real harm to real people.

Ultimately, we’d be willing to bet that not many consumers of revenge porn would spy on someone in a changing room or set up a hidden camera in their lodger’s bedroom. Emphasising the parallels between those behaviours and revenge-porn consumption by criminalising the latter might go some way to stemming the tide of this growing and deeply disturbing trend.

Helen Frowe is Professor of Practical Philosophy at Stockholm University and Jonathan Parry is Assistant Professor of Philosophy at the London School of Economics

This article is part of the Agora series, a collaboration between the New Statesman and Aaron James Wendland. Wendland is Vision Fellow in Public Philosophy at King’s College, London and a Senior Research Fellow at Massey College, Toronto. He tweets @aj_wendland.

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