An alarming 3 in 5 Australians have experienced digital harassment and 1 in 10 had a nude image of them distributed without their consent, a 2015 study revealed.
We spoke with one of the survey’s co-authors, La Trobe Senior Lecturer Dr Nicola Henry, who is currently the lead Chief Investigator (with Drs Asher Flynn (Monash University) and Anastasia Powell (RMIT University)) on a La Trobe University Transforming Human Societies RFA grant and a Criminology Research Grant investigating the nature, prevalence, scope and responses to ‘revenge pornography’ in the Australian context.
What exactly is ‘revenge porn’?
‘Revenge pornography’ refers to the non-consensual distribution of nude or sexually explicit images. However, it is a problematic term because, firstly, it implies that the motivations for distribution are exclusively about revenge, yet perpetrators of ‘image-based sexual abuse’ (the term we prefer) may have diverse motivations beyond that of revenge.
For instance, some people may share images to blackmail or coerce a victim (as in the case of domestic violence) or for trade, for purchasing, for sexual gratification or to impress their mates with ‘look how hot my girlfriend is’.
Of course, there are many instances where revenge is in fact the motivation, but the point is that it is not the only motivation for the distribution of images without consent.
Secondly, ‘pornography’ implies somewhat that the victim was complicit in producing the pornographic images. Also, many images might not be pornographic at all, or may not serve the purposes of pornography.
You might recall the Lara Bingle shower image some years ago that was taken non-consensually by her then lover, ex-AFL player Brendan Fevola, before then being circulated among sports teams and the media. That image wasn’t actually pornographic, but it was a nude image distributed without consent that did cause significant harms.
Thirdly, many people understand ‘revenge pornography’ as being exclusively about the distribution of images without consent, but we are also concerned with other behaviours, such as the creation of images without consent (e.g. the recording of sexual assaults or consensual sex acts), as well as threats to distribute intimate images, regardless of whether the images are actually distributed, or regardless of whether the images actually exist in the first place.
So ‘image-based sexual abuse’ is a much better term for capturing an array of perpetrator motivations, victim harms, image content, and different behaviours where images are being used in some way to cause harm – and regardless of whether or not the perpetrator intended to cause harm or distress.
What are the limitations of the current laws to protect people from image-based sexual abuse?
In Australia we have a patchwork of civil and criminal laws that are applicable in image-based sexual abuse cases. At the federal level we have the telecommunications legislation under the federal Criminal Code Act 1995 (Cth), which makes it a criminal offence to use a carriage service to menace, harass or offend another person.
The problem with that federal legislation is that it’s not specifically tailored to respond to these types of behaviour. The other issue is that the telecommunications legislation isn’t actually being used in relation to so-called ‘revenge pornography’ behaviour.
Only South Australia and Victoria have specific criminal laws in place for these types of behaviours. New South Wales is currently considering possible a new criminal offences to tackle image-based sexual abuse, as is the Northern Territory and Western Australia to give victims better protection with the criminal law.
Although we strongly support the introduction of specific criminal offences in all Australian jurisdictions, including at the federal level, it’s important to acknowledge that the law is never going to be the magic bullet solution to address this problem. Law is always reactive.
We know with murder, for instance, that we have harsh laws in place for these sorts of crimes, but people still go on to commit murder. In the same way, while we might have specific criminal offences in place for revenge pornography-type behaviours, it would be unrealistic to expect that people will stop engaging in these types of behaviours. Law is always going to be an imperfect solution. It’s part of the solution, but we need to be doing much more in conjunction with law reform.
It’s widely reported that rape and sexual assault cases often don’t end up in the justice system, whether that’s because the victim feels too ashamed to come forward or because their claim isn’t believed, for example. Is it a similar scenario with image-based sexual assault?
There are a number of barriers for victims of image-based sexual abuse. The first obstacle is that there’s no specific criminal offence in place in most Australian states and territories. Even in Victoria where we’ve got new laws in place (since 2014), a second obstacle is that victims may not know the laws exist; in fact, police may not know about the existence or applicability these laws to be able to make a charge.
Third, victims may feel uncomfortable reporting to police and proceeding with a prosecution because they’re concerned about who is going to see or have access to the images.
Then there’s the additional barrier we know in relation to sexual violence in that victims are reluctant to report to police for fear of being blamed or stigmatised. They’re afraid they’ll be asked ‘Why did you take that image in the first place?’ or ‘Why did you share those images?’. This might be particularly pertinent for victims from particular age groups or cultural and religious backgrounds where it might be very shameful for the victim if friends, family members and the community more broadly discover such images exist, even if they never have access to them.
Our society places unfair emphasis on ‘proper’ female behaviour – and so we’ve seen a lot of ‘slut-shaming’, particularly of women who take ‘sexy’ images of themselves, or who share images with an intimate partner or friend.
Finally, there are barriers for victims in pursuing civil remedies through the civil courts, not simply because existing civil remedies might not quite fit, but also because many victims just don’t have the resources to go down this avenue. So in the absence of criminal laws in a particular state or territory, the civil law might be the only option – but it’s a very costly option that most victims can’t afford, especially because if they lose the case they will be saddled with the winning party’s legal costs.
You mentioned before bringing in a federal law that’s specific to image-based sexual assault is part of the solution, but not the whole solution. What else do you think can be done to stop the prevalence of revenge porn in Australia?
One of the key solutions is primary prevention approaches – that is to prevent the behaviours from happening in the first place. I certainly support programs in primary schools, high schools, universities and the wider community that tackle this problem directly and/or that provide education on digital ethics more broadly. Such education needs to be happening in people’s homes and starting from primary school level.
I also think public awareness campaigns are very important, but they need to focus not on the victim and why they took the photo and/or shared it in the first place, but on the perpetrator’s actions – and the unethical and criminal distribution of intimate images without consent.
Do you think the law is keeping pace with technology advancements?
One of the biggest challenges for law is keeping up with the rapid changes in technology. I certainly think in Australia the law has been slow to keep pace. There’s a private members bill that was put to federal parliament at the end of last year that would introduce new criminal offences at the federal level. However, the federal government has not acted yet on this proposed bill.
If we look at other countries like the US, UK and New Zealand, those countries have specific legislation in place. Australia, with the exception of Victoria and South Australia, is lagging behind despite the growing awareness and attention to the harms of non-consensual imagery. I think we could be doing more.
Watch our expert panel discuss revenge porn, decency and the law at our Bold Thinking Series event ‘Free Speech – How Far is Too Far?’ Panellists include leading legal experts Dr Nicola Henry and Professor Patrick Keyzer, free speech advocate Chris Berg and human rights lawyer Shen Narayanasamy.
