Durham Law Review
Volume V
Part 1
January 2020 [2020] D.L.R
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A CRITICAL ANALYSIS OF GENDER AND IMAGE-BASED SEXUAL ABUSE
Mia Purdy
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Table of Contents LIST OF ABBREVIATIONS ...... 3 INTRODUCTION ...... 4 CHAPTER ONE: REVENGE PORN ...... 7 Introduction ...... 7 The linguistic issues with ‘revenge porn’: the law in theory ...... 7 i. What’s in a name? ‘Revenge Porn’ ...... 8 ii. Threat of disclosure ...... 10 The current law in practice ...... 11 The lack of dignity argument ...... 14 Concluding remarks ...... 14 CHAPTER 2: UPSKIRTING ...... 17 Introduction ...... 17 ‘Upskirting’: a term which minimises harm ...... 17 Pre-Voyeurism Offences Act 2019 ...... 18 The Voyeurism (Offences) Act 2019 ...... 20 The international position...... 23 Concluding remarks ...... 25 CHAPTER 3: EXTREME PORNOGRAPHY ...... 26 Introduction ...... 26 Pre-s.63 offences ...... 26 The criticisms of the law in practice ...... 27 Justification for criminal intervention ...... 29 i. Protecting victims and views ...... 30 ii. Cultural harm ...... 32 Concluding remarks ...... 35 CONCLUSION ...... 36 BIBLIOGRAPHY ...... 41
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LIST OF ABBREVIATIONS
Legislation
CJCA Criminal Justice and Courts Act 2015 CJIA Criminal Justice and Immigration Act 2008 MCA Malicious Communications Act 1988 OPA Obscene Publications Act 1959 PHA Protection from Harassment Act 1997 SOA Sexual Offences Act 2003 VOA Voyeurism Offences Act 2019
Organisations
CPS Crown Prosecution Service ONS Office for National Statistics
Other
IBSA Image-Based Sexual Abuse REA Rapid Evidence Assessment
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INTRODUCTION
‘Violence against women is the most pervasive yet underrecognised human rights violation in the world… Despite the high costs of violence against women, social institutions in almost every society in the world legitimise, obscure and deny abuse.’1 (World Health Organisation (WHO), 2005)
Image-based sexual abuse (IBSA) is a term coined by McGlynn and Rackley to describe the non- consensual creation and/or distribution and/or threat of distribution of private, sexual images.2 This dissertation will assess two forms of IBSA, ‘revenge porn’ and ‘upskirting’, as well as ‘extreme’ pornography, which whilst not strictly under McGlynn and Rackley’s definition of IBSA, fits within the analysis of gendered abuse. The aim of this analysis is to firstly assess the effectiveness of the relevant legislation, and secondly to gain a broader understanding of the system of abuse which subjugates women. It will be argued that IBSA cannot be adequately legislated against without appreciation of its gendered nature and context.
The WHO has adapted early 2000s academic thought into a ‘Life Cycle of Violence Against Women’.3 During their lifetimes, women experience, inter alia, sexual assault, sexual harassment, forced prostitution, psychological abuse and honour killings. Although both men and women can be victims and perpetrators of violence, women are more likely to be assaulted or murdered by a family member or partner, and are at a greater risk of being sexually assaulted or exploited throughout their lives.4 Men are more commonly the perpetrators of violence, regardless of the sex of the victim.5
1 Mary Ellsberg and Lori Heise, Researching Violence Against Women (WHO, 2005, Washington DC) 9 2 Clare McGlynn and Erika Rackley, ‘Image-based sexual abuse: more than just “revenge porn”’ (Research Spotlight briefing)
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This dissertation will raise a number of issues, which will be discussed throughout and summarised in the conclusion, including the limitations of the applicable legislation for each of the forms of abuse. Firstly, whether the legislation itself, its implementation, or broader social issues limit the success of the legislation. Secondly, what kind of reform, whether legal or non- legal, would be adequate, and whether they are realistic. Finally, there will be an assessment of how technology changes gendered abuse and our approach to it. Not only is there the question of whether technology has created deviant sexual behaviour (which will be predominantly addressed in chapter three), but also to what extent technology has facilitated abuse.
The first form of IBSA to be discussed is ‘revenge porn’. ‘Revenge porn’ is statutorily defined in Criminal Justice and Courts Act (CJCA) 2015 as ‘the disclosing of private sexual photographs or films with intent to cause distress’6 without the consent of an individual appearing in the image.7 The law has raised a number of concerns, including the placement of the offence within the CJCA rather than the Sexual Offences Act (SOA) 2003, and the limited scope given to the definitions within the statute. Furthermore, it is argued that the law has failed to appreciate ‘revenge porn’ as a form of sexual violence, predominantly against women, and as a product of stigmatism towards women and their bodies.
The second form is the newly legislated ‘upskirting’. ‘Upskirting’ is the non-consensual taking of images of an individual’s pubic area underneath their outer clothing in public places.8 As they are typically taken in public, they generally fall outside of the scope of conventional voyeurism offences.9 The recent Voyeurism Offences Act (VOA) 2019 is a welcome reform considering the piecemeal nature of previous offences. However, as yet unanswered issues remain, including ‘downblousing’, the importance of perpetrator motives, and if public discourse can be refocused to reduce victim blaming.
Finally, ‘extreme’ pornography will be addressed, including an assessment of the effects of pornography more generally. Extreme pornography is currently governed by s.63 Criminal
6 Criminal Justice and Courts Act 2015, s.33(1) 7 ibid, s.33(1)(a) 8 Clare McGlynn, Erika Rackley and Ruth Houghton, ‘Beyond “Revenge Porn”: The Continuum of Image-Based Sexual Abuse’ [2017] 25 Feminist Legal Studies 25, 32 9 ibid, 33
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Justice and Immigration Act (CJIA) 2008. Whilst not a form of IBSA, it will be discussed as another example of technology-facilitated gendered harm. It will be assessed in a different light to the other forms of abuse, since the academic discourse surrounding the issue is largely theoretical, based on speculative harms (or lack thereof) caused by possession of extreme violent and sexual images. For this discussion, extreme pornography provides a useful tool for assessing the final question for this dissertation: does viewing extreme images create and/or facilitate violent attitudes or actions against women? And if so, does this justify criminal intervention to prevent the development of harm in society?
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CHAPTER ONE: REVENGE PORN
Introduction
‘Revenge porn’ almost entirely eclipses all other forms of technology-facilitated sexual violence.10 The phenomenon has ‘fervently captured’ the popular imagination of the public and media,11 and yet little attention has been given to the gendered narratives and flaws of the current legislation. In 2014, ‘the Fappening’, a mass hacking of celebrities’ mobile phones, led to intimate images being shared online and greater awareness of this form of IBSA.12 Not motivated by revenge, the hacking did not fit society’s paradigmatic scenario and public perceptions were condemnatory: victims should not have taken the photos in the first place or they should have been sending and storing the images more securely.
This chapter will focus on the development of the current law governing ‘revenge porn’, including a critical appraisal of the language and positioning of the offence and the concerns surrounding the law in practice. Ultimately, it will be concluded that the law’s current wording fails to appreciate the gendered nature of the offence and the various motives behind it.
The linguistic issues with ‘revenge porn’: the law in theory
Before assessing the substance of the law, this dissertation is critical of the positioning of the offence in the Criminal Justice and Courts Act (CJCA) 2015. Feminist naming practices suggests an analysis and understanding of gender inequality is essential to fair positioning, 13 suggesting that society may draw unfair conclusions from the omission of the s.33 offence from Sexual Offences legislation. Placement in the CJCA removes the ability to appreciate the gendered nature and social issues connected to Sexual Offences Act (SOA) 2003 offences.
10 Alex Dymock and Charlotte van der Westhuizen, ‘A Dish Served Cold: Targeting Revenge in Revenge Pornography’ (2018) Legal Studies 1, 2 11 Dymock and van der Westhuizen (n10) 2 12 Paul Farrell, ‘Nude photos of Jennifer Laurence and others posted online by alleged hacker’ (The Guardian, 1 September 2014)
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Further, correct positioning ensures fairness for the victim. In response to the reform in Canada abolishing the offence of rape, to be replaced by three new offences relating to sexual assault, Loh argued that many women would prefer their assailants to be convicted of a lower degree rape than first or second degree assault, even though the penalty for the rape offence is lower.14 Whilst Loh presents limited evidence in favour of this assertion, it has been suggested that victims have an interest in the fair labelling and positioning of offences.15 Greater gravity may be given to the offence of ‘revenge porn’ if it was placed within the SOA, to satisfactorily appreciate the serious sexual nature of the offence.
i. What’s in a name? ‘Revenge Porn’
The term ‘revenge porn’ is a misnomer: not all perpetrators are motivated by revenge and not all images serve for the purpose of ‘pornography’. Whilst the law has excluded references to the phrase, some have pointed out that little attention is given to the way in which the narrative of revenge has ‘implicitly underpin[ned]’ the offence.16 Our linguistic choices used can affect ‘our understanding of the issues at stake, the ways they are legislated against, measured and resourced’.17 The use of terminology can determine and frame the debate, for example, utilising gender-specific words to emphasise understanding the offence as part of the female experience.
Society’s acceptance of damaging monikers given by the media serves to minimise the harms experienced by victims.18 Not only are women more likely to be victims of ‘revenge porn’, but there are significant differences in their responses to the abuse: men (80.8 per cent) for instance, were significantly more likely than women (47.7 per cent) to report their most recent experience of a sexual image being taken without their permission as funny, that they were flattered, or
14 WD Loh,'Q: What Has Reform of Rape Legislation Wrought? A: Truth in Criminal Labelling’ [1981] 37 Journal of Social Issues 28, 37 15 See the Law Commission’s proposal on classifying killing under provocation or diminished responsibility as second degree murder, which was strongly supported by victims’ families. Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006) para 1.67. 16 Dymock and van der Westhuizen (n10) 1 17 Boyle (n13) 21 18 McGlynn, Rackley and Houghton (n8) 30
9 Durham Law Review [2020] that they were okay with it.19 Meanwhile, women (80.8 per cent) were also more likely than men (72.9 per cent) to report a range of negative impacts including feeling annoyed, humiliated, angry, or fearful as a result.20 The images are used as a tool for victim blaming and slut shaming, beyond the initial invasion of the taking or disclosure of images without consent.21 Normalisation of IBSA in society through lack of condemnation of these monikers undermines legislative attempts to combat the issue, and cements socially constructed values around gender and sexuality through the shame and humiliation experienced by the victims.
Firstly, there is the issue of ‘revenge’. The paradigmatic scenario of the offence is a jilted ex- lover who distributes images of their partner as a method of vengeance for a wrong which they have perceived to be done to them, such as rejection or infidelity.22 ‘Socio-cultural scripts of revenge’ underpin the debate surrounding the offence and informs the treatment of the offence in practice, which exclusively focuses on an ‘intention to cause distress’.23 The ‘revenge’ narrative drives calls for reform of the law and sentencing, whilst arguments surrounding consent, harm and privacy are largely ignored in media reporting.24 Moreover, the focus on ‘revenge’ leads to unjustifiable scrutiny of the victim’s romantic intimacies, personal life, and societal status.
Secondly, ‘pornography’ problematically glamorises the offence. It similarly wrongly focuses attention on the perceived actions of the victim rather than the perpetrator.25 Dymock and Van Der Westhuizen reject new phrasings for ‘revenge pornography’ by arguing that the phenomenon represents the shaping of an explicit image as pornographic, in order to exact revenge on the party depicted, and thus the term should remain.26 However, the continued use of this term narrows the understanding of this type of abuse, and is unhelpful in understanding
19 Anastasia Powell, Nicola Henry, and Asher Flynn, ‘Image-Based Sexual Abuse’ in W DeKeseredy and M Dragiewicz (Eds) Routledge Handbook of Critical Criminology (2nd edn, Routledge, 2018) 309 20 ibid 309 21 Alexa Dodge, ‘Digitizing rape culture: Online sexual violence and the power of the digital photograph’ [2016] 12 Crime, Media, Culture, 65 22 Powell, Henry and Flynn (n19) 305 23 Dymock and van der Westhuizen (n10) 2 24 ibid 25 McGlynn, Rackley and Houghton (n8) 38 26 Dymock and van der Westhuizen (n10) 2
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‘revenge porn’ as a gendered abuse. Indeed, ‘pornography’ implies choice and legitimacy, discarding the non-consensual and abusive nature of the practice.27 McGlynn, Rackley and Houghton are critical of other similar terms such as ‘non-consensual pornography’28 and ‘involuntary porn’29 due to concerns that it risks eroticising the harms and encouraging the media’s sensationalist reporting.30 Language conveys a political message, and these labels risk minimising gendered harms. Certainly, in other areas of criminal law there has been a political movement away from the perceived glamorisation of offences, such as the movement away from ‘child pornography’ toward ‘child abuse material’.31
ii. Threat of disclosure
The former primary means of prosecution, the Protection from Harassment Act (PHA) 1997, covered the threat of disclosure, whilst the current legislation does not. Current public discourse predominantly focuses on the distribution of images without consent, and largely ignores the non-consensual creation and threat of distribution.32 We are failing to recognise IBSA beyond the ‘revenge porn’ moniker, and within the experiences women face during their lifetime. Sharing, and threat of sharing, private sexual images without consent can be a tool for coercion and control in abusive relationships.33 The recently published draft Domestic Abuse Bill 2019 provides the first statutory definition of domestic violence to include controlling and manipulative non-physical abuse, with the aim that this will enable the public to understand what constitutes abuse.34 In light of this, and the government’s recognition of domestic abuse
27 McGlynn, Rackley and Houghton (n8) 38 28 MA Franks ‘Drafting an effective “Revenge Porn” law: A guide for legislators.’ (SSRN, 17 August 2015)
11 Durham Law Review [2020] as a gendered crime,35 the current law in theory is problematic since it fails to recognise the psychological harms caused by threats.
The current law in practice
There is a growing recognition that the law is struggling to keep up with digital developments due to the ease with which sexually abusive images may be created and shared, as well as the difficulty in removal.36 Indeed, the SOA would unlikely have envisaged the growth of mobile phones and the internet to the extent that any of the offences discussed in this dissertation would be so prevalent. The rigidity of statutory provisions has left the need for further legislation, paving the way for the current s.33 offence. Yet, the success of the offence in practice is questionable. The CPS’s 2016 Annual Report stated that in the 2015-2016 period there had been 206 prosecutions under s.33.37 Whilst these statistics appear optimistic, they seem to diverge from the (albeit limited) evidence as to the prevalence of the non-consensual distribution of private images. Evidence suggests this is just the tip of the iceberg, with data revealing over 1000 incidents reported to police in a nine-month period.38 One US study found that 16 per cent of men had shared sexually suggestive images or messages of someone without their consent.39 Another study found that approximately 1 in 5 Australian adults surveyed had experienced at least one form of IBSA, of which the distribution of sexual or nude images without consent was the second most common scenario.40 These statistics suggest that alongside the legislative weaknesses, there is a significant underreporting of the offence, though there is little research into the reasons for this.
35 HM Government, Transforming the Response to Domestic Abuse Consultation Response and Draft Bill (Cm 15, 2019) 46 36 Powell, Henry and Flynn (n19) 305 37 CPS, Annual Report on Violence Against Women and Girls (28 September 2018) < https://www.cps.gov.uk/publication/violence-against-women-and-girls> accessed 08 December 2018 38 McGlynn, Rackley and Houghton (n8) 29 39 MP Thompson and DJ Morrison, ‘Prospective predictors of technology-based sexual coercion by college males’ [2013] 3 Psychology of Violence 233 40 Powell, Henry and Flynn (n19) 307
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One potential reason for the failure of the current law in practice is the lack of clarity and narrow interpretations given by the legislation, which can be seen by assessing the definitions of the s.33 offence, in particular, ‘private’, ‘sexual’ and ‘causing distress’.
Firstly, assessing the ‘private’ requirement, it is apparent that the current law is failing to cope with privacy in public places. McGlynn and Rackley, adapting Nissenbaum’s concept of ‘privacy in public’,41 suggest that there should be a presumption that sexual images taken in public are also private, unless the person depicted intends or agrees to their publication.42 S.35(2) of the offence defines a photograph or film as ‘private’ if it shows something not of a kind ordinarily seen in public, which fails to deal with the growing issue of upskirting. However, the focus should be on the choices of the individual depicted in terms of who sees the image and the circumstances in which the image is taken, rather than on whether the sexual act or body part is one that is ‘ordinarily seen in public’.43
The second issue surrounds the requirement that the image or film be ‘sexual’, as defined in s.35(3). Alongside the aforementioned linguistic issue of placement of the offence within the CJCA, the offence unnecessarily creates another definition of ‘sexual’, where it would have been sensible to use an existing definition, such as that given in s.78 SOA. Further, Gillespie questions why s.35(3)(a) references only ‘genitals’.44 The female breast is not considered a genital, so would a topless photo uploaded by D to a pornographic website not be caught by the s.33 offence? In certain scenarios, s.33(b) or (c) would not be sufficiently broad, such as where D takes a topless photo of V at a topless beach.45
Finally, there is the requirement for an intention to cause distress. Distress cannot be a mere ‘natural and probable consequence of disclosure’; there must be evidence of an intention to cause
41 Helen Nissenbaum, ‘Protecting Privacy in an Information Age: The Problem of Privacy in Public’ (1998) 17 Law and Philosophy 567 42 Clare McGlynn and Erika Rackley, ‘Image-Based Sexual Abuse’ [2017] 37 OJLS 542 43 ibid 541 44 Alisdair Gillespie, ‘“Trust me, it’s only for me”: “Revenge Porn” and the Criminal Law’ [2015] 11 CLR 866, 871 45 ibid 872
13 Durham Law Review [2020] harm or distress, and thus, recklessness will not suffice.46 The inclusion of this wording is confusing: the term ‘natural and probable consequence’, whilst clearly intending to address the issue of oblique intention, has been disapproved of as the test for oblique intent.47 Parliament may have adopted this to prevent the applicability of the offence where there was no apparent malice in the reporting, such as where X sends footage of A and B engaging in a sex act in the primary school classroom where A works to the headmistress of the school.48 However, assuming this was the intention of Parliament, then it could have just relied on s.8 Criminal Justice Act 1967, allowing the jury to decide that it did not wish to infer intent in those circumstances.
Additionally, the CJCA excludes motives based on financial gain, notoriety, control, harassment, blackmail, or for ‘a laugh’.49 McGlynn and Rackley argue this is particularly concerning in light of the increasingly common practice of sexual extortion (‘sextortion’), wherein sexual images are shared and threats are used to solicit further images or sexual practices.50 s.2 of the Abusive Behaviour and Sexual Harm Act 2016 in Scotland covers a much broader scope than the current law in England and Wales, by including recklessness as to causing fear, alarm or distress (s.2(1)(b)) and also a threat of disclosure (s.2(1)(a)).
Another concern raised by Gillespie regarding the intention of causing distress is that it is not an offence to disclose the image to an individual who features in it.51 He gives the example of where D records sexual intercourse with V with her knowledge, promising to delete the footage. After the relationship ends, D contacts her and shows her the footage. An instance where D shows an image to V he promised to delete to cause distress, would not fall under the offence
46 CJCA 2015, s.33(8) 47 Gillespie ‘“Trust me, it’s only for me”’ (n44) 872 48 ibid 875 49 DK Citron and MA Franks, ‘Criminalizing Revenge Porn’ (2014) 49 Wake Forest L Rev 345 50 McGlynn and Rackley ‘Image-Based Sexual Abuse’ (n42) 540 51 CJCA 2015, s.33(2)
14 Durham Law Review [2020] due to s.33(2).52 The victim would be forced to rely on the PHA, which would require a course of conduct, or a communications offence if it was disclosed through a device.53
The lack of dignity argument
In addition to the harms caused to the victim, ‘revenge porn’ frames our view of women in society. McGlynn and Rackley, alluding to the Second Formulation of Kant’s Categorical Imperative,54 argue that IBSA is harmful since it treats human beings as mere means and not an end in themselves.55 The argument equates treating a person with dignity to treating them as an end in themselves and thereby draws a link between the act of treating a person without dignity to performing a deontological harm. It highlights that IBSA denies dignity to the victims because of its ‘deliberate infringement of the individual’s self-worth and failure to treat them with respect’.56 The ubiquity of IBSA means that women believe that they are not equal, and perhaps should be concerned that it may happen to them. Equally, it sends the message to those who may not have participated but have similar attitudes towards women that the abuse is unimportant and therefore it is acceptable to disregard their dignity. Whilst ‘small acts of hate or harassment may not seem significant individually’, they collectively represent a violation of the individual’s status as an end in themselves.57
Concluding remarks
Ultimately, the harm created by ‘revenge porn’ is clear: alongside the harms to psychological, personal and professional wellbeing, it causes harms to the individual by a denial of dignity and a restriction on free sexual and bodily expression. The harm is significant to the individual’s
52 Gillespie ‘“Trust me, it’s only for me”’ (n44) 868 52 ibid 53 See Malicious Communications Act 1988 s.1 or Communications Act 2003 s.127 54 Immanuel Kant, Groundwork of the Metaphysic of Morals (first published 1785, CUP 2012) 55 McGlynn and Rackley ‘Image-Based Sexual Abuse’ (n42) 540 56 ibid 57 ibid 547
15 Durham Law Review [2020] personal and public life: they may withdraw from society both online and offline.58 One survey found that over 80 per cent of victims of ‘revenge porn’ experience severe emotional distress or moderate distress.59 McGlynn and Rackley present the argument that our society is one where the majority of perpetrators are rarely reprimanded, and the victims are chastised as hyper- sensitive.60 This system risks the normalisation of other types of sexual abuse, such as rape or sexual assault, causing significant individual harms as well an adverse impact on society more generally. Further, the harms are gendered through their misogynistic manifestation: sexual double standards enable humiliation, stigma and shame for women. ‘Revenge porn’ is likely to encourage and sustain a way of thinking which devalues women’s sexual autonomy and maintains a social and political context where there are high levels of ‘sexual coercion’.61 By placing it on Kelly’s continuum of sexual violence we may understand the connections between gendered violence and abuse with gendered societal practices generally, such as victim- blaming.62 In particular, Kelly’s assessment of the pervasive nature of sexual violence and the female experience, demonstrates the existence of a continuum of related experiences across a lifetime.63
The current law is inadequate to deal with the deeper social issues underlying ‘revenge porn’. In particular, the focus on the perpetrator to have acted with an intention of causing distress narrows those who may be attributed blame – third-parties who share and repost the images and thus inflict harms are given freedom under the current law. Moreover, the failure of the law to view the s.33 offence as an intrinsically gendered crime against women by omitting it from the SOA, has caused a lack of societal understanding of the perpetrator intentions and a willingness to attribute blame to the women who ‘shouldn’t have taken the photos in the first place’.
58 MA Franks, ‘The Fights against Digital Abuse: The View from the US’ (Women’s Aid, 15 December 2015)
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CHAPTER 2: UPSKIRTING
Introduction
Whilst not necessarily a new issue, ‘upskirting’ has recently received more media attention. In 2017, Gina Martin began a campaign to create a specific sexual offence for ‘upskirting’ which gained significant political support as a Private Members Bill and eventually led to The Voyeurism Offences Act 2019.64 This section will assess the concerns surrounding the term ‘upskirt’, the old law governing (or attempting to govern) the area and, the newly introduced VOA and its potential impact, and the international position. Particular focus will be on the the law’s reaction to technology. Technology has facilitated the growth of deviant behaviours, allowing it to become more noticeable and intensifying the number involved in the activity.65 Indeed, the Government has recognised that ‘technology has become an enabler for criminality, leading to new crimes such as upskirting’.66 Not only is the offence on the rise, but there are also more opportunities for these images to appear on dedicated websites online.67 The law in England and Wales previously reacted by relying on a stretched definition of common-law offences to manage the emergence of unanticipated sexual behaviours. However, the new VOA, while a step in the right direction, will likely also face criticism for its exclusion of downblousing, limited list of perpetrator motives, and the delay in its introduction.
‘Upskirting’: a term which minimises harm
The term ‘upskirting’ has been criticised as minimising the harm and impact of the abuse.68 McGlynn et al. explain that the terminology works to hinder the understanding of the activity, and leads to sensationalist tabloid reporting, such as the reporting of a British Airways attendant
64 Sabrina Barr, ‘Upksirting Becomes Criminal Offence’ (The Independent, 12 February 2019) < https://www.independent.co.uk/life-style/women/upskirting-illegal-law-crime-gina-martin-royal- assent-government-parliament-prison-a8775241.html> accessed 20 February 2019 65 Alisdair Gillespie, ‘“Up-skirts” and “Down-blouses”: Voyeurism and the Law’ [2008] 5 CLR 370, 382 66 HM Government, ‘Victims Strategy’ (Cm 9700, 2018) 10 67 McGlynn, Rackley and Houghton (n8) 32 68 ibid
18 Durham Law Review [2020] being ‘upskirted’ by a passenger as ‘Jet perv films BA girl’s undercarriage’.69 Unfortunately, there are few viable alternatives.70 As a result of the monikers such as ‘upskirt’, many see the offence as a ‘harmless prank’.71 For example, a GQ and YouGov survey revealed that 15 per cent of men aged 25-34 did not consider upskirting in the workplace to be sexual harassment.72 In this culture, perpetrators are ‘rarely reprimanded’, while victims are ‘frequently chastised as hypersensitive or humourless’.73
Pre-Voyeurism Offences Act 2019
Within England and Wales, the common-law offence of outraging public decency was the main method for dealing with ‘upskirting’.74 There were three principal concerns with the application of this offence to ‘upskirting’: it required two people to see the act, which was difficult due to its secretive nature; the scope of the offence was too broad and it failed to recognise the impacts of this type of abuse; and finally, that the issue of privacy was inadequately covered. These issues arose since the main focus of the offence was to protect the public from potential exposure to lewd or obscene conduct, rather than protecting the victim.75
Firstly, the ‘two-person rule’ for the public decency offence was a major concern when dealing with ‘upskirting’. R v Hamilton involved a defendant who had attached a video camera to a rucksack to use it to film up the skirts of women in supermarkets.76 Whilst there was no intentional creation of an indecent display, which is the typical scenario under this offence, the act was charged under the offence of outraging public decency since the act involved could
69 McGlynn, Rackley and Houghton (n8) 32 70 E.g. ‘paraphilic schopohilia’ in Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 382 71 Emma Jane, ‘“You’re a ugly, whorish, slut”’ [2014] 14 Feminist Media Studies 531, 539 72 Amelia Tait, ‘One in ten men don’t think upskirting is sexual harassment’ (GQ, 29 October 2018)
19 Durham Law Review [2020] cause outrage if detected.77 However, neither his victims nor any bystanders were aware of the filming as it occurred and thus concern was raised about the two-person requirement.78 The court held that the requirement was an evidential point rather than a rule of substantive law: it was sufficient for the purpose of the rule that the act took place in circumstances where members of the public could be outraged, and that it wasn’t necessary for two or more people to actually see it.79 However, it is difficult to reconcile Hamilton with other public indecency cases. In Rose v DPP, the public element was not satisfied at the time of the act since there was no proof that anyone was passing the place where the offence occurred at the time.80 It is ultimately apparent that the offence’s requirements had been inappropriately expanded to encompass the ‘upskirting’ phenomenon, leading to a lack of consistency in the offence’s case- law.
Secondly, it is apparent that the offence did not adequately label the act or recognise the harm inflicted. The offence is not seen as a form of sexual violence predominantly affecting women due to the fact it was not a sexual offence for the purposes of the SOA. Using a public decency offence failed to recognise the psychological harms of sexual abuse, and its punishment was inappropriate for the type of offending. As Gillespie noted, ‘an offence that is broadly based upon the premise that it is a nuisance… tends to ignore the psychological issues it presents’.81 Upskirting is a form a deviant sexual behaviour which is likely to be recurrent and repetitive in nature.82 This raised the issue of treatment and control – any sort of prison sex offender programme is likely to be reserved for those serving medium-to-long sentences, and short custodial sentences are unlikely to lead to any such resources.83
77 Law Commission, Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (Law Com No 193, 2015) 31 78 Note that the offence must be complete when committed, and cannot wait until viewing occurs at a later time. See R v DPP [2006] EWHC 852 79 Hamilton (n76) [39] 80 R v DPP (n78) 81 Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 375 82 Jonathan Metzl, ‘From scopophilia to Survivor’ [2004] 18 Textual Practice 415, 424 83 Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 375
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The final issue was the grey area that was left in the law between the offences of outraging public decency and voyeurism. The offence of outraging public decency must be committed ‘in public’ in the sense of being in a public place.84 Equally, voyeurism only applies where the person being observed is doing a ‘private act’.85 Thus, the voyeurism offence would only apply to upskirting if the observing or photographing involved a person doing a private act, as defined under s.68(1) SOA. s.68(1) interprets ‘doing a private act’ as where the person is in a place which, in the circumstances, would ‘reasonably be expected to provide privacy’.86 This raises a question: what is a reasonable expectation of privacy? Gillespie aptly describes the difficulty in translating this offence for upskirting: a situation where the public have general access would likely be viewed as a public rather than private place,87 but a victim does not expect someone to look up her skirt, even in a public place, and so has an expectation of privacy.88 Further, Gillespie points out that the Act’s specific focus on a private act, as opposed to place, means the offence could not be stretched to deal with public situations, such as shopping.89 Another issue with the application of the s.67 offence was that it required a situation where the person’s ‘genitals, buttocks or breasts are exposed or covered only in underwear’.90 It would be unlikely that a victim of upskirting, or downblousing, would be in a situation where they are only covered in underwear; they are likely to be wearing a skirt or blouse too.
The Voyeurism (Offences) Act 2019
From April 2019, ‘upskirting’ will be a criminal offence in England and Wales, carrying a maximum two-year sentence. The VOA inserts the offence into the Sexual Offences Act 2003. A commits an offence if they operate equipment beneath the clothing of another person with the intention of enabling themselves or another to observe B’s genitals, buttocks, or underwear, in the circumstances where they would not otherwise be visible, and B does not consent and A
84 R v Knuller [1973] AC 435, 494 85 SOA 2003, s.67(1)(a) 86 ibid s.68(1) 87 HHJ Peter Rook and Robert Ward, Sexual Offences: Law and Practice (5th edn, Sweet & Maxwell 2004), 401 88 Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 377 89 ibid 90 SOA 2003, s.68(1)
21 Durham Law Review [2020] does not reasonably believe that B consents.91 The same applies where A records an image beneath the clothing of B.92 The purposes referred to in s.1 and s.2 are where A intends on obtaining sexual gratification for themselves or another, or humiliating, alarming or distressing B.93 s.4 makes provisions for the some offenders to be placed on the Sex Offenders’ Register when certain conditions were satisfied. The offence has identical wording to that set out in ss.9(4) and (4B) of the Sexual Offences (Scotland) Act 2009.
The need for this specific offence was evident in the lead up to its creation. Wera Hobhouse MP focused on the fact that the common law offence of outraging public decency wrongly focused on the public or who saw the offence, rather than the individual victim and the crime committed against them.94 But despite the progress the Bill has made, there remain four predominant issues that are unresolved: the public debate remains focused on the victim and their actions, certain motives for the offence are not included, disclosure and distribution are not included, and ‘down-blousing’ is not addressed.
Regarding the first issue, it remains that the public discourse surrounding ‘upskirting’ is on the victim’s actions and clothing, instead of the offender’s actions and the harm caused. Gina Martin stated that her experience was that ‘the conversation [was] always about what I’m wearing – instead of what the guy did’.95 Martin reported receiving messages which told her to wear a longer skirt and blaming her for being targeted, as well as more serious incidents including rape and death threats.96 During its consideration by a Second Reading Committee, Maria Miller MP remarked that she welcomed the Bill but that the Government needed to
91 ibid s.67A(1) 92 ibid s.67A(2) 93 ibid s.67A(3) 94 Wera Hobhouse, ‘Why I want to make ‘upskirting’ an offence’ (The Huffington Post, 8 March 2018) https://www.huffingtonpost.co.uk/entry/upskirting_uk_5aa00538e4b002df2c5fca71 accessed 27 August 2018 95 BBC Radio 4 Interview, ‘How Can One Woman Change the Law?’ (BBC, 17 January 2019)
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‘take a long, hard look at image-based abuse’ more generally.97 She elaborated that education and cultural change were a ‘huge part’ of the ‘many things we struggle with at the moment’.98 Sexual abuse does not occur in a cultural vacuum: this dissertation submits that in order to truly address the growth and development of IBSA, it is crucial to change societal attitudes.
Secondly, the broad list of the perpetrator’s intentions, including obtaining sexual gratification for themselves or another, humiliating, alarming or distressing the victim, is certainly a positive inclusion in the Bill. It is substantially broader than the s.33 CJCA ‘revenge porn’ offence, as previously stated, which only includes ‘causing distress’. However, this list, like the s.33 offence, omits some other motives, such as financial gain. This concern was raised during the Second Reading Committee’s debate, where Liz Saville Roberts MP stated that the Bill should focus on whether the victim’s consent was received, and not on the motivation of the perpetrator.99 McGlynn, in her evidence to the committee, highlighted that a motive requirement is unnecessary, since it is only in ‘exceptional cases’ that a motive is specified in criminal offences.100 Written evidence from the CPS suggested that although ‘most offending’ would fall within the specified purposes, it was ‘not inconceivable’ that suspects would advance the defence that the purpose is not made out beyond reasonable doubt and/or that they had another purpose falling outside the scope.101 Opposing the amendment, Lucy Frazer QC MP expressed concern that the amendments could effectively reverse the usual burden of proof in criminal proceedings since it would rest on the defendant to show that they acted for a different purpose, which was very limited with only two reasons. She also suggested that identifying an offender’s purpose as part of the conviction would ensure that only those who posed a risk would be placed on the sex offenders register.102
97 Voyeurism Offences (No2) Second Reading Committee Debate (2017-19, Bill 235) c12 98 ibid 99 ibid c13 100 Clare McGlynn, ‘Written Evidence Voyeurism (Offences) Bill Committee’ (Durham University, 5 July 2018)
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Thirdly, unlike the upskirting legislation in Scotland which was supplemented by additional legislation to criminalise the distribution of such images, the law in England and Wales does not address this. Frazer, in opposing the amendment to include forwarding and sharing upskirting images, stated that the distribution of such images was part of a ‘wider problem than this specific offence’.103 It has been suggested that the distribution of such images would fall under the existing offence of sending an indecent or obscene communication under s.127 Communications Act 2003 or the Obscene Publications Act 1959. However, the use of these offences is not ideal: the latter requires a tribunal of fact to decide if each image is obscene, and it would likely be more appropriate to introduce a specific offence relating to their distribution by the creator of the images.104 Frazer suggested that the issue could be captured under the s.33 CJCA ‘revenge porn’ offence, but this would return to the issue of motive, where the perpetrator must have the intention to cause distress, which would necessarily be applicable.
Finally, one major omission from the offence was the issue colloquially known as ‘down- blousing’. The s.67A offence only includes images of B’s genitals or buttocks (whether exposed or covered with underwear), but excludes breasts. This is a curious choice since the s.67 voyeurism offence includes ‘genitals, buttocks or breasts’.
The international position
Upskirting is not just a problem in England and Wales. In Japan, the issue is seen as so widespread that almost no Japanese phones allow for the shutter sound of a photograph being taken to be turned off, to hopefully alert the victims that the offence is taking place.105 In Washington v Glas, the local statute was limited to places where a person ‘would have a reasonable expectation of privacy’.106 The state Supreme Court reversed the decisions of the lower courts, finding that a ‘public place’ could not ‘logically constitute’ a place where a person could reasonably expect to be safe from casual or hostile intrusion or surveillance.107 The following year, the voyeurism law was expanded to ban filming of intimate areas of another person under
103 Voyeurism Offences Debate (n97) c42 104 Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 379 105 Charlie Sorrel, ‘Pervert Alert: Japanese iPhone Shutter Sound Cannot Be Switched Off’ (Wired, 21 July 2008) < https://www.wired.com/2008/07/pervert-alert-j/> accessed 17 February 2019 106 (2002) 54 P.3d 147 107 ibid
24 Durham Law Review [2020] circumstances where the person has a reasonable expectation of privacy, whether in a public or private place. Other states in the US have adopted a similar policy of expansion, including a 2010 amendment in Tennessee which removed the reference to ‘a place’ in ‘a place with a reasonable expectation of privacy’.108
The law in New Zealand provides for a useful comparison. It has introduced specific legislation to combat the issue of ‘upskirting’. Gillespie suggests that the New Zealand was clearly influenced by the UK voyeurism offence,109 but that the legislature recognised the difficulty that a ‘private act’ imposed and therefore introduced a second offence dealing with recordings and photographs of ‘...a person’s naked or undergarment-clothed genitals, pubic area, buttocks or female breasts which is made— (i) from beneath or under a person’s clothing, or (ii) through a person’s outer clothing in circumstances where it is unreasonable to do so.’110 He argues that this is an effective way to tackle upskirting since there is no requirement for a person to be in a private place, nor is there any reference to privacy at all.111 The new offence in England and Wales mirrors this omission of privacy. This is advantageous because it recognises the right of people to limit their bodily exposure whilst at the same time avoiding debates as to the nature of the clothing worn.112 However, unlike the new s.67A offence in England and Wales, the offence in New Zealand may be satisfied by recklessness.113 The use of recklessness is somewhat controversial since there is little evidence to suggest the problem is caused by anyone other than those acting deliberately. However, like offences in the SOA, it may be the case that recklessness would suffice as to the absence of consent.114 New Zealand also provides an offence for the distribution of ‘upskirting’ images.115 Some commentators have suggested that this may be a beneficial move since it is likely that the harm caused by upskirted images may be enhanced where the images are distributed, especially where the victim is identifiable. Research in the field of ‘child pornography’ has suggested that psychological harm is caused to victims who are
108 2010 Tennessee Code Title 39-13-607 Observation without consent 109 Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 377 110 Crimes Act 1961, s.216G(1)(a) 111 Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 378 112 ibid 113 Crimes Act 1961, s.216H 114 Gillespie, ‘“Up-skirts and “Down-blouses”’ (n66) 379 115 Crimes Act 1961, s.216J
25 Durham Law Review [2020] aware the images of themselves are being used to stimulate sexual fantasies and that they can never be sure who has seen the images.116
Reflecting on the new VOA, it appears that the legislation was clearly necessary, but that it does not go far enough. The specified list of motives may allow perpetrators to evade successful prosecution by referring to another motive. Further, this Act comes 9 years after its Scottish influence, and still fails to address distribution, threats, and down-blousing. The current law shows England and Wales is falling behind in its criminalisation of new forms of IBSA and a failure to reflect on the deeper societal and legal issues surrounding aspects of these offences.
Concluding remarks
Upskirting, whilst a newer form of IBSA, is just one aspect of a broader developing issue of technology-facilitated abuse. It is linked to the other forms of IBSA since it is focused on sexual and sexualised images, the victimisation and perpetration is gendered, and the harms extend beyond the immediate risk to physical safety and are minimised by societal perceptions.117 The issue shows a Government failing to deal with new forms of gendered violence, and failing to consider the relationship between these offences and society’s normalisation of the consumption of pornography, sexist attitudes, and sexually aggressive behaviours.118 It is too early to know the impact of the VOA in practice, but legislative loopholes appear in the offence. A deeper understanding and assessment of the spectrum of abuses women experience and their harms, would have enabled a broader offence to include down-blousing and distribution, and for earlier legislative action.
116 Gillespie, ‘“Up-skirts and “Down-blouses”’ (n66) 379 117 McGlynn, Rackley and Houghton (n8) 33 118 Women and Equalities Committee, Sexual harassment of women and girls in public places (HC 2018, 701- VI) 4
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CHAPTER 3: EXTREME PORNOGRAPHY
Introduction
In March 2019, the controversial game ‘Rape Day’ was removed from gaming platform Steam after an online petition received thousands of signatures.119 The advertised gameplay involved ‘violence, sexual assault, obscene language, necrophilia, and incest’.120 The developer of the game explained that the game sought to ‘normalise rape’ in the same way that ‘murder has been normalised in fiction’.121 ‘Rape Day’ has raised questions over digital depictions (both real and artificial) of sexual violence against women.
In 2008, England and Wales was the first jurisdiction in Europe to criminalise the possession of extreme pornographic material.122 This section will assess the current law relating to ‘extreme’ pornography, as governed by s.63 Criminal Justice and Immigration Act (CJIA) 2008. This section will also engage with the ‘harm’ justifications for criminal intervention. The depicted dehumanisation of women is seen as legitimate and entertaining and whilst the link between viewership and violence is unclear, it is apparent that there is a significant risk that our attitudes and values can be influenced by our cultural environment.123 The ‘Rape Day’ game is a product of a society which normalises and legitimises sexual violence against women as entertaining and enjoyable.
Pre-s.63 offences
Before the CJIA, pornography generally was not directly regulated, but fell within the measures governing obscenity and indecency under the Obscene Publications Act (OPA) 1959.124 It was
119 Anthony Cutherbertson, The Independent 7 March 2019
27 Durham Law Review [2020] not an offence to possess any form of adult pornography, but it was a criminal offence to produce or distribute materials likely to deprave and corrupt the viewer – an ultimately subjective issue.125 The original consultation on the issue stated that reform was necessary due to concerns that technological developments had led to easy evasion of the offence.126 The number of prosecutions under the OPA had fallen from 309 in 1994 to 39 in 2003. Whilst it is unclear why prosecution numbers fell, suggestions included the concerns surrounding the subjective requirement for juries under the ‘deprave and corrupt’ test.127 It was apparent that the law needed reform to adjust to online activity and changing attitudes on ‘morality’.
The criticisms of the law in practice
The measures in the CJIA were equally radical in their introduction of a possession offence, and antiquated in their reliance on the language of ‘disgust’ and ‘obscenity’.128 An ‘extreme’ pornographic image is one that is both ‘grossly offensive, disgusting or otherwise of an obscene character’ (s.63(6)(b)) and an explicit and realistic portrayal of an act falling within one of four relevant categories (s.63(7)).129 McGlynn and Rackley point out the continued moralistic nature of this offence: it focuses on depraving and corrupting the consumers.130 Given the under- researched nature of this area, this dissertation will rely on the example of overzealous prosecution for BDSM in R v Walsh to justify the conclusion that the current law is inadequate.131 The current statute is both narrow and broad, narrow by excluding potentially harmful non-sexual images, and broad in its allowance of prosecutorial discretion. This discretion has led to a failure to recognise the social harms of gendered abusive images, instead focusing on images deemed to be immoral and easier to monitor and prosecute.
125 [1972] AC 849 Lord Pearson [864] 126 Home Office Consultation (n122) 7 127 ibid 128 Clare McGlynn and Erika Rackley, ‘Criminalising Extreme Pornography: A Lost Opportunity’ (2009) Criminal Law Review 245, 247 129 CJIA 2008, s.63(6) 130 McGlynn and Rackley ‘Criminalising Extreme Pornography’ (n128) 246 131 (Kingston Crown Court, unreported)
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The law in this area faces two difficulties, both the law itself and its interpretation by the CPS.132 Regarding the former, the obscenity threshold added to the CJIA during the final stages of the parliamentary process has been criticised as ‘retrograde and unhelpful’.133 In retreating to justifications for criminal intervention based on morality and disgust, the CJIA includes non- harmful activities.134 One example of this is s.63(7)(b), which involves the infliction or likely infliction of ‘serious injury to a person’s anus, breasts or genitals’. Ministry of Justice guidance suggests ‘serious injury’ would include the ‘mutilation’ of genitals or the insertion of sharp objects, though no definition is given in the CJIA, with the issue instead being left to the jury to give it its ‘ordinary English meaning’.135 This causes the category to be both under- and over- inclusive: it may include many ‘average depictions of sadomasochistic activity’ whilst not covering pornography which normalises sexual violence, such as the valorisation of rape.136
Contrarily, there are instances of overzealous applications of the law. In Walsh, D was charged with possession of extreme pornography relating mainly to images displaying anal fisting and urethral sounding. There was no evidence that anyone involved in the images had been injured. The CPS defended its prosecution in Walsh by explaining that it was not its place to comment on legislation but to apply the law as Parliament enacted.137 However, there was a strong argument that the CPS ought to have exercised its discretion differently, and that the case was an unfortunate process for discovering the limits of the offence.138
Indeed, prosecutorial discretion and law enforcement priorities may explain the fall in prosecution numbers in recent years, as well as the focus of prosecutions of bestiality. And herein lies the problem this dissertation finds: statutory provisions are not designed to be malleable to changing social attitudes, but prosecutorial discretion is, to an extent, governed by
132 James Wilson, ‘Bad Law and the CPS – Part II: The Simon Walsh Trial’ [2012] CL&J 571 133 Erika Rackley and Clare McGlynn, ‘Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law’ [2013] 5 Criminal Law Review 400, 404 134 ibid 135 Ministry of Justice, Further information on the new offence of Possession of Extreme Pornographic Images (November 2008) 12 136 Rackley and McGlynn (n133) 404 137 ibid 138 Rackley and McGlynn (n133) 405
29 Durham Law Review [2020] societal norms and public perceptions of morality which are susceptible to change. For example, it is estimated that 30 per cent of all Canadian newsstand sales in the mid-1980s consisted of periodicals that would have been illegal 20 years before.139 Discretion is necessary, but may be poorly applied. Assessing the recent statistics, it may be that law enforcement and prosecutors have focused attention on charges which are ‘easier’ to monitor and prosecute, such as bestiality images, rather than more complicated images of rape pornography.140
Justification for criminal intervention
An offence of possession of ‘extreme’ pornography impacts a broad range of interests, including freedom of expression, protection of the vulnerable, and wider issues surrounding whether some material is so violent and degrading that its possession should be controlled.141 Responses to the libertarian objections to an offence of possession have focused on demonstrating the harm caused by ‘extreme’ pornography, which is far from clear.142
There are two main justifications for criminal intervention highlighted by recent governments. Firstly, there is a desire to protect those who participate in the creation of sexual material containing violence, cruelty or degradation, whether or not they notionally or genuinely consent to taking part.143 This is referred to by the Home Office consultation report as the ‘direct harm’ – ‘the victims of crime in the making of the material’.144 This dissertation argues that this issue extends beyond victims, to women as a whole, given the gendered nature of pornography. Secondly, there is a desire to protect society from exposure to material which
139 Lyne Casavant and James Robertson, The Evolution of Pornography Law in Canada (Ottawa: Library of Parliament, 2007) 2 140 Hannah Bows and Clare McGlynn, All Party Parliamentary Group on Sexual Violence Inquiry into Pornography and Sexual Violence 2018 (Durham University April 2018) 4 141 Home Office Consultation (n122) 5 142 These views are based on Mill’s ‘harm principle’ suggesting that ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’. See John Stuart Mill, On Liberty (London, J.W. Parker & Son, 1959) 22 143 Home Office Consultation (n122) 11 144 Home Office Consultation (n122) 11
30 Durham Law Review [2020] may encourage interest in violent or aberrant sexual activity.145 The Home Office report describes this as the ‘indirect harm’ – the effects on the viewer.146
i. Protecting victims and views
It is relatively uncontroversial that to the extent that extreme pornography depicts unlawful harm, it should be banned in order to protect those involved in its production.147 But what of depictions where there is no ‘victim’ depicted, as those depicted are consenting? s.33 extends to ‘explicit and realistic’ depictions of harm, including staged scenes and/or consensual sadomasochistic activity.148 The concept of a harm to the viewers through ‘explicit and realistic’ depictions of harm has been elaborated in regards to ‘child pornography’. The Supreme Court of Canada in R v Sharpe accepted several studies suggesting that indecent images of children may fuel fantasies and normalise sexual activity with children in the mind of the possessor, weakening inhibitions and potentially leading to actual abuse.149 There is little, if any, specific evidence or research into the direct link between possession of ‘child pornography’ and abuse of children, but there is concern in the UK that material may fuel abuse of real children by ‘reinforcing potential abusers’ inappropriate feelings towards children’.150
This rationale has been applied to the issue of ‘extreme’ pornography. The original consultation document on the current legislation asked a question which remains hotly debated nearly 15 years later: ‘in the absence of conclusive results as to its possible negative effects, do you think that there is some pornographic material which is so degrading, violent or aberrant that it should not be tolerated?’.151 The proposal took a strong position against extreme pornography, stating that it ‘has no place in our society’ and raised concerns that it may ‘encourage or
145 ibid 146 ibid 8 147 ibid 148 Backlash, ‘“Extreme” Pornography Proposals: Ill-Conceived and Wrong’ in Clare McGlynn, Erika Rackley and Nicole Westmarland, Positions on the Politics of Porn: A Debate on Government Plans to Criminalise the Possession of Extreme Pornography (Durham University, 2007) 9, 10 149 R. v. Sharpe, 2001 SCC 2, 2001 CarswellBC 82, 2001 CarswellBC 83, REJB 2001-22168, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3 (S.C.C.) [8] 150 Home Office, Scottish Executive & Northern Ireland Office, Consultation on Possession of Non- Photographic Visual Depictions of Child Sexual Abuse (London, 2007) 5 151 Home Office Consultation (n122) 10
31 Durham Law Review [2020] reinforce interest in violent and aberrant sexual activity to the detriment of society as a whole’.152 The Rapid Evidence Assessment (REA) drew attention to concerning evidence of a link between extreme pornography and sexual aggression.153 Many self-completion questionnaires reported a correlation with sexual aggression and rape proclivity, with one survey showing that groups reporting high exposure to extreme pornography were six time more likely to self-report rape behaviour.154 Despite this, the report recognised there is little evidence that extreme pornographic material causes or contributes to sexual or violent offending directly.155 This led to strong criticisms of the REA for its apparent bias: the assessors were ‘known for their anti-pornography views’,156 and the research it was based on was largely conducted before the advent of the internet.157 However, the REA’s conclusions are persuasive: that there are harmful effects to extreme pornography, and pornography more generally, including the risk of developing pro-rape attitudes, beliefs and behaviours, particularly in men who were predisposed to aggression.158
Beyond the REA’s conclusions, some have suggested a link between domestic violence and terrorism. Certainly, there is a shift in understanding of domestic violence as ‘intimate terrorism’ and the evidence shows striking parallels between the factors that drive the two issues.159 Analysis of Federal Bureau of Investigation data on mass shootings found that 57 per cent of cases included a spouse, former spouse or family member among the victims, and that
152 Home Office Consultation (n122) 9 153 Catherine Itzin, Ann Taket and Liz Kelly, The Evidence of Harm to Adults Relating to Exposure to Extreme Pornographic Material: A Rapid Evidence Assessment (REA) (Ministry of Justice Research Series 11/2007) 154 Scot Boeringer, ‘Pornography and Sexual Aggression: Associations of Violent and Nonviolent Depictions with Rape and Rape Proclivity’ [1994] 15 Deviant Behaviour 289, 294 155 Itzin, Taket and Kelly (n153) 10 156 Feona Attwood and Clarissa Smith, ‘Extreme Concern: Regulating “Dangerous Pictures” in the United Kingdom’ [2010] 37 J.L. & Society 174 157 HL Debate 21 April 2008, vol 700, col 1361 (Lord Hunt of Kings Heath) 158 Itzin, Taket and Kelly (n153) 6 159 Amanda Taub, ‘Control and Fear: What Mass Killings and Domestic Violence Have in Common’ (New York Times, 15 June 2016)
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16 per cent of attackers had previously been charged with domestic violence.160 If extreme pornography is a facilitator of sexist attitudes which result in domestic abuse or aggression more generally, it could also have links with broader societal issues, such as terrorism, which rely on gender norms of male dominance and female subordination.
Ultimately, this dissertation concludes more cautiously than the REA: that there may well be a causal link between pornography and sexual and violent offending, but that more evidence is needed to make a conclusive judgment.
ii. Cultural harm
McGlynn and Rackley have posited the idea of a ‘cultural harm’ from extreme pornography, in particular the explicit and realistic depictions of rape and non-consensual sexual penetration, as added to the s.63 offence by s.16 Criminal Justice and Courts Bill 2014.161 The question of whether pornography ‘causes’ sexual violence is an ‘unanswerable distraction’ since there are complex links between pornography and violence against women.162 Instead, there should be a focus on the indirect ‘cultural harm’ caused by pornography in relation to attitudes of equal worth and protection.163 Hillyard explains that a ‘social harm approach’ focuses on the social origins of harm and the structures which produce and reproduce such harms.164
The language of the REA, and of courts internationally, has echoed these concerns of a ‘cultural harm’. The Supreme Court of Canada in R v Butler explained that criminalisation of such material demonstrated ‘our community’s disapproval’ of materials which potentially victimise
160 Everytown, ‘Mass Shootings in the US: 2009-2017’ (Everytown, 6 Dec 2018)
33 Durham Law Review [2020] women.165 The Court noted that where material is degrading or dehumanising, the appearance of consent was not necessarily determinative, and that the ‘very appearance of consent makes the depicted acts even more degrading or dehumanising’.166 Indeed, some have argued that pornography more broadly institutionalises male supremacy by fusing ‘the eroticisation of dominance and submission with the social construction of male and female’.167 In pornography, women are presented as de-humanised sexual objects, reduced to their body parts, who enjoy pain or humiliation and degradation.168
The presentation of women as subordinate to men has wider societal implications. Whilst the REA may not conclusively link viewing images and criminal actions, many of the findings point to issues surrounding the normalisation of gendered abuse and rape myths. For example, one 1980 study discusses an ‘unconditioned stimulus’ wherein male students associate violent acts with sexual pleasure.169 Another study reported that men with relatively higher inclinations of aggression against women were particularly likely to be affected by depictions of rape myths (in particular, that a non-consenting woman’s rape arousal depiction means women enjoy being raped).170 Further, other studies have found a significant association between exposure to pornographic material and the trivialisation of rape and a process of desensitisation, resulting in increased male sexual callousness towards women.171
Another implication of the presentation of women in pornography is that female victims of crime begin to diverge from the ‘ideal victim’.172 Christie’s ‘ideal victim’ is one who, when
165 R. v. Butler, 1992 CarswellMan 100, 1992 CarswellMan 220, EYB 1992-67139, [1992] 1 S.C.R. 452, [1992] S.C.J. No. 14 (S.C.C.), [455] 166 ibid 479 167 Catharine MacKinnon, Feminism Unmodified (HUP, 1988) 148 168 Andrea Dworkin, ‘Against the Male Flood: Censorship, Pornography, and Equality’ (1985) 8 Harvard Women’s LJ 1, 14 169 Neil Malamuth et al, ‘Sexual Responsiveness of College Students to Rape Depictions: Inhibitory and Disinhibitory effects’ [1980] 38 Journal of Personality and Social Psychology 399 170 Neil Malamuth and James Check, ‘The Effects of Aggressive Pornography on Beliefs in Rape Myths: Individual Differences’ [1985] 19 Journal of Research in Personality 299 171 Dolf Zillmann and Jennings Bryant, ‘Pornography and Sexual Callousness, and the Trivilisation of Rape’ [1982] 32 Journal of Communication 10 172 Nils Christie, The Ideal Victim (Macmillian Press,1986) 16
34 Durham Law Review [2020] affected by crime, is more frequently given the ‘legitimate status’ of ‘victim’. Thus, women who engage with behaviours seen as risky or morally questionable contribute to the victimisation they experienced. Pornography suggests that women can be degraded and tortured because they are not considered human, and if they enjoy it, this just proves their lack of humanity.173 Women are seen as deserving of their mistreatment: they should not have taken photos if they didn’t want them shared, or they should not have been wearing such a short skirt if they did not want photos taken. Similar to domestic violence, victims of ‘revenge porn’ are not afforded the ‘ideal victim’ status due to their personal relationship with the offender.174 Women who dress provocatively and embrace their sexuality are compared to the women who are treated subordinately in pornography. In addition to the ideal victim, there is an ‘ideal perpetrator’ for the crime: one who does not know their victim and is considered to lack morals.175 Whilst there appears to be little research into the issue, it may be suggested that the normalisation of gendered abuse in society equally reduces the stigma against issues such as rape, domestic violence, and sexism.
The final issue is the effect pornography may have on young people, particularly boys and their developing understanding of women. The REA identified one of the gaps in knowledge as the effects of exposure to extreme pornographic material on young people, including its growing role as de facto sex education.176 It would be surprising if the culturally accepted norm of sexualisation and commodification of women had no impact on children. Exposure to violent pornography may alter perceptions, making viewers less sensitive to the suffering of others.177 As pornography becomes more easily accessible in the digital age, there is the risk that its depictions will replace taught sex education in framing views of sex and gender. Exposure to pornography may have a link to engagement of young people in ‘risky behaviours’, but the precise effects of viewing such images is unclear.178
173 Patrizia Romito, A Deafening Silence (The Policy Press, 2008) 49 174 Christie, (n172) 175 ibid 17 176 Itzin, Taket and Kelly (n153) 25 177 Neil Malamuth et al, ‘Pornography and Sexual Aggression’ [2000] 11 Annual Review of Sex Research 26 178Miranda Horvath et al, ‘“Basically…Porn is everywhere”: A REA on the Effect that Access and Exposure to Pornography has on Children and Young People’ (Children’s Commissioner, 2013) 7-9
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Concluding remarks
This section has highlighted two principal issues with the current legislation and practice of the law governing ‘extreme’ pornography. The legislation itself relies on public perceptions of morality, making it susceptible to misuse. Images which cause no harm may be captured by the act, whilst harmful depictions may be left under-monitored and prosecuted. However, the real issue with extreme pornography lies in the message it leaves in society. If the role of the law is to enforce symbolic and educational messages, pornography cannot be justified. The risks of harm permeate every aspect of society: the way we treat women in the home, the workplace and in public places. Since the complete abolishment of pornography is unrealistic, it is important for society to ensure that the most violent images are banned, and that education is able to step in and effectively teach sex education and sexual relationships in the 21st century.
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CONCLUSION
In concluding, it is important to refer back to the original questions this dissertation aimed to answer. Firstly, what is holding the current law for IBSA and gendered abuse back? In what ways are the current legislative systems inadequate? Secondly, what reform would be necessary and realistic? And finally, how can the law deal with technology creating and facilitating violent and sexually deviant attitudes and actions against women?
1. What is holding back the law? Is it the legislation itself, implementation or broader social issues?
Addressing the first question, it is apparent, having assessed three types of gendered abuse, that there are issues with both the legislative frameworks themselves and with their implementation. Oftentimes, the law appears too narrow to appreciate the underlying causes of the abuse. For example, the s.33 CJCA governing ‘revenge porn’ focuses entirely on the motive of ‘causing distress’, which fails to recognise the real motive of sexual crimes: to have power over the individual, whether through financially gaining from the images or sexual gratification, or any other reason.
However, beyond the issues of the legislation, there are deeper social concerns which have permeated the legal and non-legal dealings of IBSA. The fact that there is no definitive evidence for a link between IBSA and cultural harms does not mean there is no connection. As a society we are concerned specifically with attitudes towards sexual consent, and it would therefore be ‘surprising’ if IBSA, which relies on a lack of consent, was not a contributory factor.179 It is crucial that we recognise IBSA as a form of abuse against women, and that any legal response factor this in. Kelly’s concept of the continuum of sexual violence enables us to document and interconnect difference experiences.180 We should not have a strict hierarchy between physical acts of abuse or online abuse, especially since the blurring of the two makes this increasingly difficult,181 and thus IBSA abuse should be treated as seriously as extreme sexual violence and domestic violence. McGlynn et al. have pointed out the international conflict in accepting the
179 McGlynn and Rackley ‘Image-Based Sexual Abuse’ (n42) 540 180 McGlynn, Rackley and Houghton (n8) 36 181Nicole Bluett-Boyd et al, ‘The role of emerging technologies in experiences of sexual violence’ (Australian Institute of Family Studies, 2013)
37 Durham Law Review [2020] gendered and sexual nature of IBSA: the Australia Legal and Constitutional Affairs References Committee182 has discussed the issue as a ‘sex crime’ but the Irish Law Commission recently rejected the idea of ‘revenge porn’ and ‘upskirting’ as sexual offences, instead focusing on breach of privacy.183 Sexual offences are so because of the mode of perpetration (sexual acts), rather than because of a motive of sexual gratification.184 As shown in previous chapters, societal perceptions have permeated legislation, affecting the law itself and its application.
2. What kind of reform would be adequate? Education? Harsher offences? A reframing of societal values and harms? Are these realistic?
The response to IBSA must be both preventative and punitive.185 Even if the purpose of criminal law is to provide a symbolic view of society’s values, illegal acts are still committed with relative frequency, for example, 1 in 5 women have experienced some type of sexual assault.186 Almost 92 per cent of all offences do not result in charges or summonses in England and Wales. The lowest prosecution figure is for rape, with only 1.9 per cent of recorded rapes prosecuted.187 This, combined with the low reporting of sexual offences188 and low successful conviction rate,189 are symptoms of a society which does not take these offences seriously.
182 Australian Legal and Constitutional Affairs References Committee, ‘Phenomenon colloquially referred to as ‘‘revenge porn’’’ (2016)
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Society continues to punish women for the creation of private sexual images, which is fuelled by cultural and social sexual inequality.190 Women are told that the way to prevent the harm is to refuse to create images in the first place, essentially a method of inhibiting their sexual autonomy. Australian federal police assistant commissioner Shane Connelly bluntly stated: ‘if you go out in the snow without clothes on you’ll catch a cold – if you go on the computer without your clothes on, you’ll catch a virus’.191
Education is one solution to help change societal values over time. An amendment to Children and Social Work Act 2017, intended to come into effect from September 2019, puts a duty on all primary schools to provide relationships education and on all secondary schools to provide relationships and sex education.192 There is very little direct research on the consequences of exposure to sexually explicit material on children. However, the number of children exposed to explicit material online is significant: about 53 per cent of 11-16 year-olds have seen explicit material online.193 The same study found that 44 per cent of males reported they wanted to copy the behaviour seen in porn.194 Increasingly, young people are being taught that sex and sexuality are healthy to explore. However, there is a significant risk of the facilitation of harmful attitudes where the first depictions of sex come from violent and degrading images in online porn, particularly where taught sex education is lacking.
It is clear there is no set answer to dealing with IBSA and its underlying causes, including unhealthy attitudes towards women. Any approach would have to be incremental, slowly
190 M Nussbaum, ‘Objectification and Internet Misogyny’ in S Levmore and M Nussbaum (eds) The Offensive Internet (Harvard University Press 2010) 15, 68 191 Quoted in G Jackson, ‘Revenge Porn and the Morality Police: Stop Blaming Women for Being Alive’ (The Guardian, 19 February 2016) < https://www.theguardian.com/commentisfree/2016/feb/19/revenge-porn-and-the-morality-police- stop-blaming-women-for-being-alive> 192 Justine Greening MP, ‘Sex and Relationships Education: Written statement - HCWS509’ (March 2017) < https://www.parliament.uk/business/publications/written-questions-answers- statements/written-statement/Commons/2017-03-01/HCWS509/> 193 Elena Martellozzo et al, ‘A quantitative and qualitative examination of the impact of online pornography on the values, attitudes, beliefs and behaviours of children and young people’ (Middlesex University, 2016) 8 194 ibid 10
39 Durham Law Review [2020] changing societal views to accept women’s sexual freedoms and reverse harmful views. The law and education are both methods which can be strong driving forces for such change, but neither present a full answer: legislation is limited by factors in existence at the time (the SOA would unlikely have been able to anticipate the growth of mobile phones and ‘upskirting’, for example), and education is only as effective as its syllabus and ability to impact before other factors. Ultimately, both methods are a limited means of achieving a complicated and lengthy process: an upheaval of societal attitudes on sex and gender.
3. How can we react to technology creating and/or facilitating violent and sexually deviant views against women?
Each of the offences discussed in this dissertation are the result of, or facilitated by, the growth of technology and the ease with which images may be shared. Whilst upskirting is not a new practice,195 technology has altered the way in which this behaviour can be performed. It is unclear whether the technology has made this behaviour more common, or simply more noticeable, but it is undeniable that technology has eased the means by which these offences are committed and shared.196
Society has neglected the development of sexual violence against women through technological developments, instead focusing on child exploitation, cyber-theft and identity fraud.197 This growing gender inequality in digital life is thus harmful not only due to the individual harm caused to the person depicted in the images,198 but because it perpetuates the differential social meanings attributed to men’s and women’s bodies and their sexuality, which results in a disproportionate experience of blame, shame and humiliation for women.199 The discourse surrounding IBSA has largely been framed as a problem of user naiveté, rather than one of
195 There are reported instances of men looking up skirts using low-tech devices such as mirrors. See Metzl (n82) 426 196 Gillespie, ‘“Up-skirts” and “Down-blouses”’ (n66) 370 197 See Anastasia Powell and Nicola Henry, ‘Sexual Violence in a Digital Age’ (Springer, 2017) 198 McGlynn, Rackley and Houghton (n8) 30 199 ibid 32
40 Durham Law Review [2020] gender-based violence.200 Reframing the issues as online gendered abuse, linked by the continuum of abuse women face, is one step in keeping up with these developing issues. Statutory provisions can only reflect the understandings at the time, and it is inevitable that public perceptions on sex and sexuality will evolve. The combination of education about online activity and legislative measures which reflect the seriousness of gendered abuse, as well as effective practice of these provisions, are preventative and punitive measures which could push societal attitudes against IBSA.
200 Nicola Henry and Anastasia Powell, ‘Beyond the “sext”: Technology facilitated sexual violence and harassment against adult women’ [2015] 48 Australian & New Zealand Journal of Criminology 104, 105
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BIBLIOGRAPHY
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DPP v White [1972] AC 849 R v DPP [2006] EWHC 852 R v Hamilton [2007] EWCA Crim 2062, [2008] QB 224 R v Knuller [1973] AC 435, 494 R v Sharpe, 2001 SCC 2, 2001 CarswellBC 82, 2001 CarswellBC 83, REJB 2001-22168, [2001] 1 S.C.R. 45, [2001] S.C.J. No. 3 (S.C.C.) (UNITED STATES) R v Butler, 1992 CarswellMan 100, 1992 CarswellMan 220, EYB 1992-67139, [1992] 1 S.C.R. 452, [1992] S.C.J. No. 14 (S.C.C.) (UNITED STATES) Washington v Glas (2002) 54 P.3d 147 (UNITED STATES)
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Books:
Backlash, ‘“Extreme” Pornography Proposals: Ill-Conceived and Wrong’ in Clare McGlynn, Erika Rackley and Nicole Westmarland, Positions on the Politics of Porn: A Debate on Government Plans to Criminalise the Possession of Extreme Pornography (Durham University, 2007) Christie N, The Ideal Victim (Macmillian Press,1986) Dworkin A and MacKinnon C, Pornography and Civil Rights: A New Day for Women’s Equality, (Organising Against Pornography, 1988)
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Gillespie A, ‘“Up-skirts” and “Down-blouses”: Voyeurism and the Law’ [2008] 5 CLR 370, 382 Henry N and Powell A, ‘Beyond the “sext”: Technology facilitated sexual violence and harassment against adult women’ [2015] 48 Australian & New Zealand Journal of Criminology 104 Jane E, ‘“You’re a ugly, whorish, slut”’ [2014] 14 Feminist Media Studies 531, 539 Loh WD, 'Q: What Has Reform of Rape Legislation Wrought? A: Truth in Criminal Labelling’ [1981] 37 Journal of Social Issues 28 Malamuth N and Check J, ‘The Effects of Aggressive Pornography on Beliefs in Rape Myths: Individual Differences’ [1985] 19 Journal of Research in Personality 299 Malamuth N et al, ‘Pornography and Sexual Aggression’ [2000] 11 Annual Review of Sex Research 26 Malamuth N et al, ‘Sexual Responsiveness of College Students to Rape Depictions: Inhibitory and Disinhibitory effects’ [1980] 38 Journal of Personality and Social Psychology 399 McGlynn C and Rackley E, ‘Criminalising Extreme Pornography: A Lost Opportunity’ (2009) Criminal Law Review 245 McGlynn C and Rackley E, ‘Image-Based Sexual Abuse’ [2017] 37 OJLS 542 McGlynn C and Rackley E, ‘More than ‘Revenge Porn’: Image-Based Sexual Abuse and the Reform of Irish Law’ Irish Probation Journal Vol.14 [2017] 38 McGlynn C, Rackley E and Houghton R, ‘Beyond “Revenge Porn”: The Continuum of Image-Based Sexual Abuse’ [2017] 25 Feminist Legal Studies 25 Metzl J, ‘From scopophilia to Survivor’ [2004] 18 Textual Practice 415 Nissenbaum H, ‘Protecting Privacy in an Information Age: The Problem of Privacy in Public’ (1998) 17 Law and Philosophy 567 Rackley E and McGlynn C, ‘Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law’ [2013] 5 Criminal Law Review 400 Thompson MP and Morrison DJ, ‘Prospective predictors of technology-based sexual coercion by college males’ [2013] 3 Psychology of Violence 233 Wilson J, ‘Bad Law and the CPS – Part II: The Simon Walsh Trial’ [2012] CL&J 571 Zillmann D and Bryant J, ‘Pornography and Sexual Callousness, and the Trivilisation of Rape’ [1982] 32 Journal of Communication 10
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Australian Legal and Constitutional Affairs References Committee, ‘Phenomenon colloquially referred to as ‘‘revenge porn’’’ (2016)
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CPS, Annual Report on Violence Against Women and Girls (28 September 2018)
Academic and Statistical Reports:
Barr S, ‘Upksirting Becomes Criminal Offence’ (The Independent, 12 February 2019)
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Elena Martellozzo et al, ‘A quantitative and qualitative examination of the impact of online pornography on the values, attitudes, beliefs and behaviours of children and young people’ (Middlesex University, 2016) Ellsberg M and Heise, L Researching Violence Against Women (WHO, 2005, Washington DC) Flatley J, ‘Sexual Offences in England and Wales: year ending March 2017’ (ONS, 2018)
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Farrell P, ‘Nude photos of Jennifer Laurence and others posted online by alleged hacker’ (The Guardian, 1 September 2014)
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Hobhouse W, ‘Why I want to make ‘upskirting’ an offence’ (The Huffington Post, 8 March 2018)