Intimate Image Abuse A consultation paper Consultation Paper 253 Law Commission Consultation Paper No 253 Intimate Image Abuse A consultation paper 26 February 2021 i © Crown copyright 2021 This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-government-licence/version/3. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. This publication is available at https://www.lawcom.gov.uk/project/taking-making- and-sharing-intimate-images-without-consent/. ii THE LAW COMMISSION – HOW WE CONSULT About the Law Commission: The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Rt Hon Lord Justice Green, Chair, Professor Sarah Green, Professor Nicholas Hopkins, Professor Penney Lewis, and Nicholas Paines QC. The Chief Executive is Phillip Golding. Topic of this consultation: We are conducting a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent. In particular we look at the current range of offences which apply in this area and identify the gaps in the scope of protection currently offered, making provisional proposals in an effort to ensure that the criminal law provides consistent and effective protection against the creation and sharing of intimate images without consent. Geographical scope: This consultation applies to the law of England and Wales. Duration of the consultation: We invite responses from 26 February 2021 to 27 May 2021. Responses to the consultation may be submitted using an online form at: https://consult.justice.gov.uk/law-commission/intimate_image_abuse/. Where possible, it would be helpful if this form was used. Alternatively, comments may be sent: By email to [email protected] OR By post to Intimate Image Abuse Team, Law Commission, 1st Floor, Tower, 52 Queen Anne’s Gate, London, SW1H 9AG. If you send your comments by post, it would be helpful if, whenever possible, you could also send them by email. Availability of materials: The consultation paper is available on our website at https://www.lawcom.gov.uk/project/taking-making-and-sharing-intimate-images-without- consent/. We are committed to providing accessible publications. If you require this consultation paper to be made available in a different format please email [email protected] or call 020 3334 0200. After the consultation: We will analyse the responses to the consultation, which will inform our final recommendations for reform to Government, which we will publish in a report. iii Consultation Principles: The Law Commission follows the Consultation Principles set out by the Cabinet Office, which provide guidance on type and scale of consultation, duration, timing, accessibility and transparency. The Principles are available on the Cabinet Office website at: https://www.gov.uk/government/publications/consultation-principles-guidance. Information provided to the Law Commission: We aim to be transparent in our decision- making, and to explain the basis on which we have reached conclusions. We may publish or disclose information you provide in response to Law Commission papers, including personal information. For example, we may publish an extract of your response in Law Commission publications, or publish the response itself. We may also share responses with Government. 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Any queries about the contents of this Privacy Notice can be directed to: [email protected]. iv Contents Page GLOSSARY IX CHAPTER 1: INTRODUCTION 1 Intimate images 1 This project 3 The current legal framework 9 This consultation paper 14 Children and young people 18 Freedom of expression and human rights compatibility 19 Acknowledgments 20 PART 1: THE CASE FOR A NEW MODEL 22 CHAPTER 2: EXPERIENCES AND BEHAVIOURS 23 Introduction 23 Taking 23 Making 30 Sharing 35 Threats 48 Possession 56 Intimate image abuse 57 Conclusion 58 CHAPTER 3: THE CURRENT LAW AND ITS LIMITATIONS 60 Introduction 60 Specific offences 61 Other offences 88 Conclusion 102 Table 1: Intimate image offences 107 CHAPTER 4: MOTIVATIONS 108 Introduction 108 v Motivations in current offences 108 Revenge 108 Exerting power and control 110 Social status 112 Sexual gratification 113 Extortion 113 A joke or prank 113 Art 114 No identifiable reason 114 Conclusion 115 CHAPTER 5: THE WRONGS AND HARMS OF INTIMATE IMAGE ABUSE 116 Introduction 116 The wrongs of intimate image abuse 116 Harm caused by intimate image abuse 119 Conclusion 143 PART 2: THE NEW MODEL 145 CHAPTER 6: DEFINITION OF “INTIMATE IMAGE” 146 Introduction 146 The definition of “image” 146 The nature of the image 149 Conclusion 178 CHAPTER 7: THE ACTS 179 Introduction 179 Taking an intimate image without consent 179 Possessing an intimate image without consent 191 Making an intimate image without consent 200 Sharing an intimate image without consent 205 Conclusion 216 CHAPTER 8: WITHOUT CONSENT 218 Introduction 218 Capacity 219 Deception 221 vi Voluntariness 222 Child victims 222 Conclusion 225 CHAPTER 9: PROOF OF HARM 226 Introduction 226 Current status of proof of harm 226 Stakeholders’ views 227 Conclusion 228 CHAPTER 10: FAULT REQUIREMENTS 229 Introduction 229 Awareness of lack of consent 230 Additional intent 237 Conclusion 248 CHAPTER 11: INTIMATE IMAGES TAKEN OR PREVIOUSLY SHARED IN PUBLIC 249 Introduction 249 Privacy in civil law 249 Intimate images taken in public 252 Intimate images previously shared in public 275 Conclusion 284 CHAPTER 12: THREATS TO TAKE, MAKE AND SHARE INTIMATE IMAGES WITHOUT CONSENT 285 Introduction 285 Types of Threat 285 Existing threat offences in England and Wales 286 Current criminal offences that could apply to intimate image threats 291 Threat offences in other jurisdictions 303 Potential new threat offence 311 Conclusion 317 CHAPTER 13: REASONABLE EXCUSE 319 Introduction 319 Reasonable excuse or reasonable conduct 320 Conduct which might constitute “reasonable excuse” 324 vii Conclusion 356 CHAPTER 14: CONCLUSION 358 Introduction 358 The provisionally proposed offences 358 Can these behaviours be considered sexual offences? 362 The need to trigger special measures and ancillary orders 371 Conclusion 383 CHAPTER 15: CONSULTATION QUESTIONS 384 APPENDIX 1: CIVIL REMEDIES FOR INTIMATE IMAGE ABUSE 398 viii Glossary This is not an exhaustive comprehensive glossary of terms relating to intimate image abuse. It defines only the terms related to intimate image abuse that are used in this consultation paper. 4chan 4chan is a website to which images and discussion can be posted anonymously by internet users. The website contains a number of sub-categories – or “boards” – such as, notably, the “Politically Incorrect” board and the “Random” board. The website has proved controversial, and has at times been temporarily banned by various internet service providers. Actus reus The external elements of an offence, that is, the elements of an offence other than those relating to the defendant’s state of mind or fault. They divide into conduct elements, consequence elements and circumstance elements. App Short for “application”, this is software that can be installed on a mobile device, such as a tablet or mobile phone, or a desktop computer. AirDrop This is an Apple service that allows users to transfer files (including photographs) between Apple devices using a peer-to-peer wireless connection (ie they are not sent over the internet or mobile network). Blog An online journal, or “web log”, usually maintained by an individual or business and with regular entries of content on a specific topic, descriptions of events, or other resources such as graphics or videos. To “blog” something is also a verb, meaning to add content to a blog, and a person responsible for writing blog entries is called a “blogger”. Microblogging refers to blogging where the content is typically restricted in file size; microbloggers share short messages such as sentences, video links or other forms of content. Twitter is an example of a microblog. Catfishing Luring someone into a relationship by adopting a fictional online persona. ix Chatroom A feature of a website where individuals can come together to communicate with one another. Chatrooms can often be dedicated to users with an interest in a particular topic.