Section 33 of the Criminal Justice and Courts Act 2015 created the offence of disclosing private sexual photographs or films without the consent of the individual who appears in them and with intent to cause that individual distress. Colloquially, but perhaps misleadingly, this offence has become known as “revenge porn”.
Parliament introduced this offence because historically the conduct had typically been charged as harassment, voyeurism or malicious communications. It was thought that none of these offences fully encapsulated the seriousness and impact of this behavior and its prevalence in the social media age. Nor did prosecuting some of these offences allow a judge to impose associated orders aimed at the protection of the public, such as requiring the convicted defendant to report under the sex offenders register.
Several years later, section 69 of the Domestic Abuse Act 2021 amended section 33 to make it an offence to threaten to disclose private sexual photographs and films. Notably, this expanded offence does not require proof that the image even existed. The mere threat of disclosing an image is itself sufficient to trigger criminal liability, provided the threat is made with the intention of causing the victim distress.
These offences were recently thrust into the spotlight. On 3 March 2023, Stephen Bear, a reality TV personality, was sentenced to 21 months’ imprisonment following his conviction for disclosing private sexual images of his ex-girlfriend on both WhatsApp and Only Fans. A prison sentence just three months less than the maximum available has sent out an unambiguous message that this offence will be treated with the utmost seriousness by the criminal courts.
Apart from laying down this marker, what is particularly interesting about Mr Bear’s case is that it illuminates the flexibility of the offence: it can be committed in ways probably not foreseen by Parliament in 2015 but which are rightly treated as aggravating the offending conduct.
Only Fans was founded in November 2016, around one year after the offence came into force. It reportedly has approaching 150 million users worldwide. Its business model, which asks fans to subscribe on a periodic or pay-per-view basis, means that a person minded to share private sexual images without consent may be motivated not just by a desire to humiliate another person, but by financial gain. In Stephen Bear’s case, not only was the video made available to over 1,000 of his Only Fans subscribers for a fee, it also became viral on multiple social media platforms after he sent it.
When the sentencing guidelines for the offence were drafted in October 2018, the Sentencing Council seemed to have little sense that the offence could be committed in this way on such a vast scale. Whereas earlier social media such as Facebook and Snapchat meant that images would usually only be circulated to existing friends and contacts, newer social media such as Only Fans makes it possible to circulate the images to anyone – for a price. Indeed, financial gain is an aggravating factor currently absent from the sentencing guidelines.
These guidelines indicate that, even with a defendant whose offending has the highest level of culpability and inflicts the greatest harm, the starting point is one year custody, with a range of up to 18 months. These are of course only guidelines; a sentencing judge is entitled to step outside of them (although they rarely do so other than in exceptional cases). In Mr Bear’s case, the judge took this rare step: the financial gain from which Mr Bear benefited was very unusual and seems to have persuaded the judge to arrive at a sentence greater than the top of the range, at almost the maximum of what the legislation allows. As the sentencing judge noted, Mr Bear “wished to exploit the economic value of the recording of himself and Harrison having sex.” Mr Bear now faces the rare prospect of confiscation proceedings – and paying over the economic value of his exploitation – in respect of a sexual (and traditionally non-acquisitive) offence.
The financial repercussions for Mr Bear do not stop there. In the same week as his sentencing hearing, and in what the judge understood was a legal first, a woman was awarded almost £100,000 in damages in the civil courts following a successful claim against her ex-partner arising from his covert recording of naked images of her and their subsequent publication on a pornographic website (he had previously been successfully prosecuted for voyeurism).
This civil claim was based on intentionally exposing the claimant to a foreseeable risk of injury or severe distress which resulted in injury, infringement of the claimant’s privacy and breach of the claimant’s confidence (i.e. misuse of private information). Mr Bear’s victim is understood to be pursuing a similar civil claim. The damages potentially available in civil proceedings for these claims far outweigh what a criminal court is likely to grant by way of a compensation order following a conviction.
These two contemporaneous but unconnected cases – one criminal, one civil – illustrate vividly that lawmakers and judges are increasingly alive to the fact that sexual crime can and should pay. The law is slowly waking up to the fact that unregulated social media provides an enticing platform for the unscrupulous not only to inflict public distress and humiliation but also to make money from that distress.
This new appreciation of the diverse motives for committing this type of offence is reflected in the more enlightened language used by judges to describe the crimes themselves. In the civil case, the judge criticised the term “revenge porn”, suggesting that this choice of words indicated that the victim had done something wrong for which they deserved to be punished. Instead, the judge favoured the more neutral term “image-based abuse”, which is stripped of the connotations of victim-blaming. Indeed, this is also an apt description of the section 33 criminal offence.
The unstoppable evolution of social media means that, unsurprisingly, reported incidents of this offence are on the rise. Statistics provided by the Metropolitan Police indicate that between 2015 (when the offence was first in force) and 2019, there were 2,197 reported cases, 109 of which resulted in a charge, an average of no more than 21 cases a year. In comparison, between April 2020 and June 2022, the police have confirmed that 1,048 cases were charged, an average of around 500 cases a year.
These statistics will continue to move in only one direction. Many charities, such as Refuge, are currently campaigning for the law to be amended and, in particular, for the section 33 offence to remove the requirement for the defendant to have the intention to cause distress to the victim. They argue that proving this mens rea is difficult and accounts for the relatively low number of successful prosecutions, and that if a victim is caused distress by the disclosure (or threatened disclosure) of the image, this should be sufficient.
Whilst this concern is understandable, it is suggested that turning image-based abuse into a strict liability offence, stripped of any mens rea, is stretching the criminal law too far and will only create undesirable uncertainty in investigations and charging decisions. A better solution would be to follow the example of harassment legislation, and to criminalise the defendant who intends to cause distress through the non-consensual disclosure of images and the defendant who ought to have known that non-consensual disclosure of images would cause distress. In other words, Parliament should create alternative subjective and objective bases on which the offence can be committed.
For the time being, an individual arrested for the section 33 offence needs to consider not only the immediate criminal investigation but the distinct possibility of civil proceedings. The prospect of financial punishment, as well as a lengthy prison sentence, indicates that image-based abuse, and the variety of ways it can be committed as social media evolves, is being taken more seriously in both the criminal and civil courts. All of the indications are that this trend will continue.
When sexual crime pays: the financial consequences of image-based abuse
June 1 2023
Could a change of disclosure regime help the SFO’s disclosure headache
May 25 2023