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26 Feb 2018

Lights, Camera, Legislative Action?

Recent months have seen a tidal wave of issues consuming the public consciousness on sexual misconduct and women’s rights. The Harvey Weinstein scandal, the #MeToo movement, the recent collapsed rape trials and the demise of the Presidents Club following sexual harassment allegations all feed into a growing concern about the disconnect between gender equality and the perceived sufficiency of the criminal law.

A report published on 23 January 2018 by the Fawcett Society’s Sex Discrimination Law Review Panel is therefore aptly timed. Amongst its many recommendations are; that the existing offence of coercive and controlling behaviour should include separated parties; increased procedural protections for all those who allege sexual image based abuse; new offences relating to “upskirting” and breaches of domestic violence orders; “misogyny” to be included as a listed hate crime and the extension of extra-territorial jurisdiction to include all sexual offences and domestic abuse committed abroad.

In particular, the report recommends an extension to the current offence of revenge pornography. It argues that the current law does not go far enough in criminalising those who (a) create private sexual images without the subject’s knowledge and/or consent; (b) threaten to disclose such images as a form of blackmail or coercion and (c) disclose images with a recklessness as to the subject’s distress.

This report comes swiftly on the heels of two major cases, neither of which involved criminal proceedings. YouTube star Chrissy Chambers recently won her four year battle to obtain damages against a former partner who uploaded sexually explicit videos of her to a pornographic website. In a less reported but equally important case, Facebook recently agreed to a settlement in respect of a 14 year old girl in Northern Ireland after a sexual image of her was repeatedly shared via a ‘shame’ page on the social network. The settlement has been hailed as a landmark case which will likely increase the number of civil claims against social media platforms and which shifts the onus onto them to more closely monitor and regulate their content. But are these cases, and the surrounding maelstrom of anger over all forms of gender based harassment, likely to result in any substantive legislative changes when it comes to revenge pornography?

The Criminal Justice and Courts Act 2015 made it a criminal offence to disclose private sexual material with the intent of causing fear and distress. The offence had a relatively slow start, with few successful convictions in its first year in force when compared with the vast number of cases apparently reported.  This prompted a push by the Liberal Democrats to table further amendments in 2016 which (amongst other things) would have widened the definition of “sexual” as well as the ambit of the substantive offence to cover reckless as well as intentional commission, and to instances where “fear and alarm” as well as “distress” were caused to the victim. Those proposed amendments bear significant resemblance to those proposed by the Fawcett Society Report in January of this year.

They remained in the draft Bill until the Committee stage in November 2016[1] when they were withdrawn on the basis that the offence had not existed on the statute books for sufficient time to assess its “success.”  The government expressed an intention to keep the operation of the offence under review. Echoing that sentiment in response to the Fawcett Society report this week, a Ministry of Justice spokesperson stated that; “Prosecutors have a range of powers to deal with these cases. We continue to keep legislation under constant review to ensure we can bring offenders to justice.” In short, the answer to whether any change in the law is imminent appears to be a resounding “no.”

However, recent events and a changing public mood could force the government to reassess their position more quickly than anticipated. After all, Westminster itself has been embroiled in allegations of sexual harassment and misogyny, which it has responded to with the establishment of a working group and cross-party report. An attempt to resolve some of the underlying issues with fresh criminal offences could involve an almost unprecedented overhaul of legislation and Parliament would have to consider carefully whether the criminal law is the correct forum for such issues. In contrast, revenge pornography legislation has significant support and the previously proposed amendments are already in force in Scotland. Given the topical nature of this area, the government may feel a move towards expanded criminalisation of those who disclose private sexual material would be prescient and expedient. Whether the content of any proposed amendments would be proportionate to the ills they are attempting to cure is an entirely different matter, especially where the disclosure of material is reckless and ill-advised but falls short of being intentionally malicious.

[1] Hansard. Volume 776. Column 1444

This article was originally published in Criminal Law & Justice Weekly and can be accessed here, behind a paywall.

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