www.newlawjournal.co.uk | 6 & 13 January 2023 13
CRIMINAL
LEGAL UPDATE
© Getty images/iStockphoto
matter likely to lead members of the
public to identify a person as the
person against whom the oence
is alleged to have been committed
(“the complainant”) shall during the
complainant’s lifetimebe included in
any publication.’
Section 2, SO(A)A 1992 provides a list for
the specific oences to which s 1 applies.
However, currently, victims of revenge porn
are not automatically granted anonymity,
which is a huge barrier to people
coming forward.
Online Safety Bill
Thankfully, positive steps are being made.
The Online Safety Bill is continuing its long
journey towards becoming approved by
Parliament and being brought into force. It
is this eventual Act in which it is proposed
that the added protections for victims of
image-based sexual abuse will now be
included.
It will also make root-and-branch
changes to the oence itself. The
government seems to have genuinely
listened to the Law Commission’s
recommendations and understood the need
for change and for better protection for
these victims.
This means that it will no longer be
a requirement to prove that the alleged
offender intended to cause distress to the
victim, which currently is a huge barrier
for prosecutions. It will also include
an offence for computer-generated or
adapted images, known colloquially as
‘deep-fakes’.
What difference will anonymity
make?
It has also been reported that the
government is currently drawing up plans
to change the law to grant anonymity
for victims/survivors of revenge porn.
Ensuring that victims of revenge porn
remain anonymous in their report to the
police and the subsequent process through
the criminal courts is likely to make victims
feel more able to come forward.
There remain many hurdles for victims of
these crimes, including that the police will
often require sight of the images themselves
in order to conduct their investigation,
when other people seeing the images or
videos is exactly what the victim is trying
to prevent.
But allowing victims anonymity in these
crimes may mean that more feel able to
report, and therefore get the support and
justice they so desperately need. NLJ
photograph or film, and
(b) with the intention of causing that
individual distress.’
Inevitably, if the crime requires an image
to be ‘private’ and ‘sexual’, then in my view
revenge porn must be a sexual crime.
Why has change taken so long?
While it has been clear to campaigning
organisations, those working with victims,
and the Law Commission that these crimes
are sexual crimes, it has taken a long time for
the government to be convinced of the need
for reform.
It seems that the original drafting of the
oence in CJCA 2015 was focused on this
being a communications oence in terms
of the way the oending was perpetrated,
rather than being focused on the nature of
the content, which is clearly sexual.
The Law Commission recommended
reform in February 2021, in its proposals
on ‘Reforms to laws around intimate image
abuse proposed to better protect victims’.
How does anonymity work?
Section 1 of the Sexual Oences
(Amendment) Act 1992 (SO(A)A 1992)
provides for anonymity for victims of
sexual crimes:
‘(1) Where an allegation has been
made that an oence to which this
Act applies has been committed
against a person,no matter relating
to that person shall during that
person’s lifetime be included in any
publicationif it is likely to lead
members of the public to identify that
person as the person against whom
the oence is alleged to have been
committed.
(2) Where a person is accused of an
oence to which this Act applies, no
R
evenge porn is rarely out of the
headlines—in December last year,
reality TV contestant Stephen Bear
was found guilty of voyeurism and
two counts of disclosing private, sexual
photographs and films. In June 2022, Rob
Kardashian and Blac Chyna reached a
settlement in their revenge porn case as the
trial began.
However, revenge porn isn’t something
that just aects the famous. According
to Refuge’s ‘The Naked Threat’ report in
July 2020, one in 14 adults in England and
Wales have been threatened with sharing
an intimate image. This increases to one
in seven young women aged between 18
and 34 having experienced threats to
share intimate images. The overwhelming
majority (72%) of threats to share intimate
images are made against women by current
or ex-partners.
What is revenge porn?
The current legislation relating to image-
based sexual abuse, or ‘revenge porn’, is
the Criminal Justice and Courts Act 2015
(CJCA 2015).
By their very nature, incidents of image-
based sexual abuse or revenge porn are
sexual crimes. Section 33, CJCA 2015
defines this as follows:
‘(1) It is an oence for a person to disclose
a private sexual photograph or film if
the disclosure is made—
(a) without the consent of an
individual who appears in the
Emily McFadden examines
the growing impact of
image-based sexual abuse &
the importance of securing
anonymity for its victims
Revenge porn:
time for action
IN BRIEF
fThe law has been slow to recognise the scale
of the problem of revenge porn and put in
place proper legislation to deal with it. However,
positive steps have been taken recently with
the Online Safety Bill and an announcement
that victims will have anonymity in revenge
porn cases.
Emily McFadden is an associate in the
abuse claims team at Bolt Burdon Kemp
(www.boltburdonkemp.co.uk).
