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15 October 2014

Revenge porn: a law we didn’t know we needed

In the past, governments have used the creation of new criminal law as a political football to score cheap points in the eyes of the public and press. But in the case of revenge porn, fresh legislation is sorely needed.

By lyndon harris

The Ministry of Justice announced this week that the Criminal Justice and Courts Bill – currently at the report stage in the House of Lords – will make revenge porn “a specific offence”.

The debate surrounding revenge porn and the legal response to it has bubbled on for some time now, and my initial reaction as to whether or not there is a need to legislate against revenge porn was to look to existing laws. I abhor the way in which successive governments have used the criminal law as a political football to score cheap points in the eyes of the public and press, at the expense of us all – taxpayer, victim and defendant. In 2013 alone, there were 398 pieces of primary and secondary legislation containing the words “crime” or “criminal”.

Is it any wonder then, that like most sensible criminal lawyers, my default response to an MoJ press release announcing plans to enact further criminal justice legislation is to say “the current law is sufficient”? That response rings true – most of the time. Take for example, the promise of a victims’ law – primary legislation to guarantee the rights “guaranteed” by the victims’ code issued in 2013 (which was, in fact, a product of primary legislation itself). The avalanche of legislation in the past 15 years has quite simply been detrimental to justice.

However, revenge porn may well be the exception to the rule.

Current offences which can be – and are being – used to prosecute “revenge porn” range from harassment (covering a course of conduct which causes the victim distress) and communications offences (which is aimed at the use of public communications networks – such as the internet – to send grossly offensive or indecent messages), to blackmail (where the images are used to coerce the victim into, perhaps, sending more images) and potentially voyeurism (where the victim is unaware of the image being taken).

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All legislation that might be used to prosecute such offences pre-dates the prevalence of “revenge porn”. It must be said that an old law is not necessarily a bad law, however, in this context it rather seems that using existing legislation is like forcing a square peg into a round hole; it doesn’t quite fit. While we could continue to prosecute “revenge porn » under existing laws, the offences have a disparate range of penalties and were targeted at very different behaviour than that encompassed by the term “revenge porn” and each brings with it its own problem; harassment must be on more than one occasion; communications offences must (a) use the Internet (what about physical photographs passed around a school?) and (b) be “indecent” in nature.

It is often said that there are no new offences, just new methods of committing old offences. This is said particularly in relation to the internet and communications offences on Twitter or Facebook, however in relation to revenge porn, it would appear that is not so and that in fact, it is an offence which we never realised we needed until very recently.

Consequently, I support the calls for a specific offence in relation to revenge porn, however I feel quite strongly that the term is grossly inappropriate. “Revenge” narrows the offence unnecessarily and suggests a requisite motivation beyond that of pure malice; would we wish to include the recent hacking and dissemination of intimate images of celebrities in the ambit of the offence? Secondly, “pornography” connotes consent and though an image may well have been taken and sent consensually, the dissemination of that image has not. The use of the word “porn” or “pornography” in this context somehow seeks to legitimise what is an awful ordeal for someone to go through – and what should be a specific criminal offence.