In February of this year, the Law Commission of England and Wales published its Consultation Paper on taking, making and sharing intimate images without consent. I was fortunate to be part of the team who produced this Paper prior to the commencement of my pupillage in October 2020.
The project originated from the Law Commission’s Scoping Report on Abusive and Offensive Online Communications, published in November 2018. Amongst other recommendations (which established the sister projects relating to the law on hate crime and the communications offences), the report made the case for a review of the law on the non-consensual taking and sharing of intimate images. The Commission accepted a reference from the Ministry of Justice in 2019 to conduct this review. The project leaves aside the law relating to indecent images of children as well as the role of platform liability, both of which were out of scope.
Currently, the law governing intimate image abuse is, as the Commission describes, a piecemeal and inconsistent “patchwork” of offences. The applicable law appears in various bits of legislation, with different offence elements and varying consequences for both defendant and complainant. For example, while taking an intimate image is only criminalised when done for the purposes of obtaining sexual gratification (in the voyeurism and upskirting provisions of the Sexual Offences Act 2003), sharing an intimate image without consent is only criminalised when done with the intention of causing the depicted individual distress, as per section 33 of the Criminal Justice and Courts Act 2015. Further, it is only for those “taking” offences in the Sexual Offences Act 2003 that complainants have automatic anonymity and defendants can be subject to Sexual Harm Prevention Orders and the notification requirements. The “sharing” offence does not trigger any of those measures or consequences, despite having the potential to be similarly harmful.
Some intimate image abuse behaviours are also not specifically criminalised: for example, threatening to disclose an intimate image without consent, disclosing an image created or altered to appear sexual (such as “deepfake pornography”) without consent, or disclosing an intimate image to the person depicted without their consent.
In line with its objectives, the Commission proposes a clear, consistent suite of offences to reform this area of law:
(1) A “base offence” of taking or sharing an intimate image where there is no reasonable belief in consent. This aims to target intimate image abuse that has the potential to cause significant harm, but where it cannot be proven that the defendant had malicious or crude intent. It is proposed that this offence would have a defence of “reasonable excuse”, which includes where the taking or sharing without consent was done for the purposes of:
– preventing, detecting, investigating or prosecuting crime;
– for a genuine medical, scientific or educational purpose;
– where the defendant reasonably believed it was necessary for the purposes of legal proceedings or in the administration of justice; or
– where the taking or sharing was in the public interest.
(2) An additional, more serious offence of taking or sharing an intimate image without consent with intent to humiliate, alarm or distress the depicted person.
(3) A further additional, more serious offence of taking or sharing an intimate image with no reasonable belief in consent for the purpose of obtaining sexual gratification, for oneself or another. This offence would trigger the notification requirements where the appropriate seriousness threshold is met.
(4) An offence of threatening to share an intimate image, where the defendant intends to cause the victim to fear that the threat will be carried out or is reckless as to whether the victim will fear that threat will be carried out.
“Intimate” for the purposes of these offences is defined as:
The Commission has asked consultees for their view as to whether this should be extended to include people in a state of undress and not nude or semi-nude but covered only with underwear.
The Commission also asks consultees whether “intimate” should be extended to include images which are considered intimate by particular cultural or religious groups, but are not necessarily nude, semi-nude or sexual by nature. For example, an image of a Muslim woman who usually wears a hijab in public without her hijab and in an intimate setting (such as hugging or kissing) with another man who is not her husband. The Commission heard from stakeholders of many instances of disclosure of these types of images. The harm caused to the victim was significant and often long-lasting. This extended definition would be limited to the offences with an additional intent requirement and where the perpetrator is aware the image is considered intimate by the depicted person or aware of the harm it can cause.
In light of its engagement with stakeholders and literary analysis, the Commission comes to the conclusion that this behaviour sits on a continuum of sexual abuse. As such, it proposes a number of measures similar to those provided for sexual offence cases. For example, it is proposed that complainants of all the offences have lifetime anonymity and be automatically eligible for special measures. Sexual Harm Prevention Orders are also proposed to be available for all the offences, where it is considered necessary to protect the public or particular members from sexual harm.
Reform in this area is long overdue, perhaps now more than ever, as the Covid pandemic has increased the use of the internet and phones to communicate and socialise. The suite of offences proposed by the Law Commission will help to make the law in this area more consistent, while also ensuring that the range of intimate image abuse behaviours that warrant criminalisation are targeted appropriately.
This article on the ‘Law Commission Consultation Paper on Taking, Making and Sharing Intimate Images without Consent’ was written by Laura Tilt. To enquire about instructing Laura or any other member of our Criminal Team, please contact our clerking team via our switchboard on 01962 868 161 or email: firstname.lastname@example.org