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A dish served cold: targeting revenge in revenge pornography

Published online by Cambridge University Press:  27 December 2018

Alex Dymock Open the ORCID record for Alex Dymock [Opens in a new window]  and
Charlotte van der Westhuizen
Alex Dymock*
Affiliation:
School of Law, Royal Holloway, University of London, Egham, UK
Charlotte van der Westhuizen
Affiliation:
School of Law, Royal Holloway, University of London, Egham, UK
*
*Corresponding author. Email: [email protected].
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Abstract

The introduction of s 33 of the Criminal Justice and Courts Act 2015, criminalising the disclosure of private sexual images, has been seen as a welcome step forward for curbing this abuse of privacy and the harmful effects it has on victims. However, while s 33 sidesteps any reference to ‘revenge pornography’, as the phenomenon has been termed in popular vernacular, little attention has been paid to the way in which narratives of revenge implicitly underpin and imbue the new offence, particularly its specific intent requirement. We argue this has serious implications for the treatment of s 33 offences in the courts and for sentencing. Drawing on cross-disciplinary conceptualisations of revenge, its recent criminal-legal history, and examples of media and parliamentary rhetoric, we claim that despite innumerable attempts to turn debate on disclosure of private sexual images towards consent, harm and privacy, there lurks within these discourses an assumption that the victim must have done something to deserve the treatment she received. Until the multiple harms of disclosure of private sexual images are recognised and explicit recommendations are made that scrutiny of victims’ behaviour should normally be inadmissible, we argue that the offence offers little in the way of redress.

Keywords

criminal justicerevenge pornographygendered violence
Type
Research Article
Information
Legal Studies , Volume 39 , Issue 3 , September 2019 , pp. 361 - 377
Copyright
Copyright © The Society of Legal Scholars 2018 

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References

1 A Gillespie ‘“Trust me, it's only for me”: revenge porn and the criminal law’ (2015) Crim L Rev 866.

2 McGlynn, C and Rackley, E ‘Image-based sexual abuse’ (2017) 37(3) Oxford J Legal Stud 534, DOI: 10.1093/ojls/gqw033CrossRefGoogle Scholar; Henry, N and Powell, A ‘Sexual violence in the digital age: the scope and limits of criminal law’ (2016) 25 Soc and Legal Stud 397CrossRefGoogle Scholar.

3 Citron, DK and Franks, MA ‘Criminalizing revenge porn’ (2014) 49 Wake Forest L Rev 345Google Scholar.

4 Henry and Powell, above n 2.

5 Henry, N and Powell, A ‘Embodied harms: gender, shame, and technology-facilitated sexual violence’ (2015) 21 Violence Against Women 758CrossRefGoogle ScholarPubMed.

6 The longstanding but comparatively underreported phenomenon of up-skirting, for example, has until recently been superseded – indeed eclipsed entirely – in the wake of the ‘discovery’ of revenge pornography. Over the last few months, a campaign was launched to target up-skirting in England and Wales via an amendment to the Sexual Offences Act 2003, s 67, and it was raised for the first time in oral questions in the House of Commons on 5 September 2017 (Hansard HC Deb, vol 628, col 12, 5 September 2017). However, no legislative action has yet been taken.

7 While there are, of course, other ‘backstories’ that underpin the new offence, such as cyberbullying and cyberstalking, these are rarely foregrounded in either parliamentary debate on the construction of the offence or its reform, or in media reporting on the case law.

8 ‘Revenge porn website operator Hunter Moore sentenced to 30 months in prison’, The Verge (3 October 2015), see http://www.theverge.com/2015/12/3/9843038/hunter-moore-revenge-porn-is-anyone-up-prison-sentence (accessed 17 November 2018).

9 For case studies, see Citron and Franks, above n 3; Salter, M and Crofts, T ‘Responding to revenge porn: challenges to online legal impunity’ in Cormella, L and Tarrant, S (eds) New Views on Pornography: Sexuality, Politics, and the Law (Santa Barbara: Praeger Press, 2015) p 233Google Scholar.

10 Howe, A ‘Provoking polemic – provoked killings and the ethical paradoxes of the postmodern feminist condition’ (2002) 10 Feminist Legal Stud 39CrossRefGoogle Scholar; Howe, A ‘“Red mist” homicide: sexual infidelity and the English law of murder (glossing Titus Andronicus)’ (2013) 33 LS 407Google Scholar.

11 See for example R v Clinton, Parker and Evans [2012] EWCA Crim 2.

12 Henry and Powell, above n 2.

13 Scheller, SH ‘A picture is worth a thousand words: the legal implications of revenge porn’ (2014) 93 North Carolina L Rev 551Google Scholar.

14 See for example, MA Franks and D Citron, ‘It's simple: criminalise revenge porn, or let men punish women they don't like’ (The Guardian, 17 April 2014), available at https://www.theguardian.com/commentisfree/2014/apr/17/revenge-porn-must-be-criminalized-laws (accessed 17 November 2018).

15 For perhaps the most well-known attempt to distinguish revenge and retribution see Nozick, R Philosophical Explanations (Cambridge, MA: Harvard University Press, 1981)Google Scholar. More recently, scholars such as Fletcher, G (Rethinking Criminal Law (Cambridge: Cambridge University Press, 2000)Google Scholar) and Moore (Placing Blame: A Theory of Criminal Law (Oxford: Oxford University Press, 1997)Google Scholar) have provided further justification for distinguishing the two concepts. However, see Rosenbaum's, T Payback: The Case for Revenge (London: University of Chicago Press, 2013CrossRefGoogle Scholar) for a defence of revenge as an operative principle in the criminal justice system and indeed, drawing on the example of ‘crimes of passion’, an argument that it already plays a significant role.

16 This perspective emerged in nineteenth century legal historical works. See for example Pollock, F and Maitland, FW History of English Law Before the Time of Edward I (Liberty Fund Inc, 2nd edn, 2009)Google Scholar.

17 Miller, W ‘Clint Eastwood and equity: popular culture's theory of revenge’ in Sarat, A and Kearns, T (eds) Law in the Domains of Culture (Ann Arbor: University of Michigan Press, 1998) p 161Google Scholar.

18 This perspective originates with Hobbes, T The Elements of Law Natural and Politic. Part I: Human Nature; Part II: De Corpore Politico with Three Lives: Human Nature Pt. 1 (Oxford: Oxford University Press, 2008)Google Scholar.

19 Rosen, IC ‘Revenge – the hate that dare not speak its name: a psychoanalytic perspective’ (2007) 55 J of the American Psych Ass 595 at 607Google Scholar.

20 CG Schoenfeld ‘In defense of retribution in the law’ (1966) 35 Psych Quart 108.

21 See for example Zaibert, L ‘Punishment and revenge’ (2006) 25 L and Phil 81CrossRefGoogle Scholar; Nozick, above n 15.

22 Grobbink, LH, Derksen, JJL and Marle, HJC van ‘Revenge: an analysis of its psychological underpinnings’ (2015) 59 Int J of Offender Therapy and Comparative Crim 892CrossRefGoogle ScholarPubMed.

23 Agnew, R ‘Foundation for a general strain theory of crime and delinquency’ (1992) 30 Criminology 47CrossRefGoogle Scholar.

24 Frijda, NH The Laws of Emotion (Hove: Routledge, 2007)Google Scholar.

25 Posner, RA Law and Literature (Cambridge, MA: Harvard University Press, 3rd edn, 2009) p 79CrossRefGoogle Scholar.

26 Sarat, A When the State Kills: Capital Punishment and the American Condition (Princeton: Princeton University Press, 2001) p 39CrossRefGoogle Scholar.

27 See for example Beattie, HJ ‘Revenge’ (2005) 53 J of the American Psych Ass 513CrossRefGoogle Scholar; Kohut, H ‘Thoughts on narcissism and narcissistic rage’ (1972) 27 The Psychoanalytic Study of the Child 360CrossRefGoogle Scholar.

28 Beattie, above n 27, at 515.

29 On narcissism and revenge see also Brown, RP ‘Vengeance is mine: narcissism, vengeance, and the tendency to forgive’ (2004) 38 Journal of Research in Personality 576CrossRefGoogle Scholar.

30 Durkheim, E The Division of Labour in Society (Basingstoke: Palgrave Macmillan, 2nd edn, 2013) p 85Google Scholar.

31 Miller, above n 17.

32 Sarat, A and Kearns, T ‘The cultural lives of law’ in Sarat, A and Kearns, T (eds) Law in the Domains of Culture (Ann Arbor: University of Michigan Press, 1998) p 17CrossRefGoogle Scholar.

33 Neuman, Y ‘On revenge’ (2012) 17 Psychoanalysis, Culture & Society 1CrossRefGoogle Scholar.

34 There are numerous sexually motivated offences that have benefited from the advancement of technology, or are indeed a product of them, including and not limited to voyeurism, child pornography, extreme pornography, stalking and harassment.

35 Quinn, JF and Forsyth, CJ ‘Describing sexual behavior in the era of the internet: a typology for empirical eesearch’ (2005) 26 Deviant Behavior 191CrossRefGoogle Scholar.

36 For example, the US state of Minnesota criminalises the act regardless of the intention under Laws of Minnesota, Chapter 126 SF No 2713 (USA).

37 Under existing harassment law in the England and Wales a course of conduct must be undertaken on two or more occasions, which is unhelpful for victims of revenge pornography given that resulting harms can flow from a single disclosure of such an image.

38 To establish a breach of confidence the information disclosed must have been imparted in such a way that imposed an obligation of confidence. This is not always the case in revenge pornography matters – most notably where an image has been obtained from someone's phone/icloud and disclosed without consent and then shared.

39 Amended by the Protection of Freedoms Act 2012 to include stalking.

40 [2007] 2 All ER 1012.

41 Ibid.

42 See Part 1 of the Copyright Designs and Patents Act 1988 (CDPA) as amended, although also a criminal offence, see CDPA, s 107.

43 See Duchess of Argyll v Duke of Argyll [1967] Ch 302.

44 A Levendowski ‘Using copyright to combat revenge porn’ (2013) 3 NY University J of Intel Prop & Ent L 422.

45 [2002] QB 195.

46 See above n 38 for an explanation of limitations in respect of an action for ‘breach of confidence’ in revenge pornography cases.

47 Cotterrell, R The Sociology of Law (Oxford: Oxford University Press, 2nd edn, 1984)Google Scholar.

48 See Simester, AP and von Hirsch, A Crimes, Harms and Wrongs: On the Principles of Criminalisation (Oxford: Hart, 2011)Google Scholar.

49 Gillespie, above n 1.

50 Horder, J and Fitz-Gibbon, K ‘When sexual infidelity triggers murder: examining the homicide law reform on judicial attitudes in sentencing’ (2015) 74 Camb LJ 307CrossRefGoogle Scholar.

51 Dressler, J ‘Provocation: partial justification or partial excuse?’ (1988) 51 Mod Law Rev 467CrossRefGoogle Scholar.

52 Horder, J Provocation and Responsibility (Oxford: Clarendon Press, 1992) p 112CrossRefGoogle Scholar.

53 Horder, J Excusing Crime (Oxford: Oxford University Press, 2004) pp 8–9Google Scholar.

54 The requirements of the defence in s 3 of the Homicide Act 1957 were as follows:

‘Where on a charge of murder there is evidence on which the judge can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man’.

55 Howe, above n 10.

56 Wilson, MI and Daly, M ‘Male sexual proprietariness and violence against wives’ (1996) 5 Current Directions in Psych Sci 2CrossRefGoogle Scholar.

57 [2002] EWCA 2982.

58 Ibid, at [6].

59 Howe, A ‘Provocation in crisis – law's passion at the crossroads? New directions for feminist strategists’ (2004) 21 Aus Feminist LJ 1Google Scholar.

60 Edwards, S ‘Provoking her own demise: from common assault to homicide’ in Hanmer, J and Maynard, M (eds) Women, Violence and Social Control (London: Palgrave Macmillan, 1987)Google Scholar.

61 Ledward, J and Agate, J ‘“Revenge porn” and section 33: the story so far’ (2017) 28 Ent L Rev 41Google Scholar.

62 For a comparative study of how double victimisation operates in cases of rape, see Soothill, K and Walby, S ‘Prosecuting the victim? A study of the reporting of barristers’ comments in rape cases’ (1993) 32 Howard Journal of Crime and Justice 12CrossRefGoogle Scholar.

63 M Ellis ‘Anonymity in revenge pornography cases’ Lexology 12 September 2016, available at http://www.lexology.com/library/detail.aspx?g=dfd1602c-5b3f-4798-966a-eb84f8733733 (accessed 17 November 2018).

64 Jacoby, S Wild Justice: The Evolution of Revenge (London: Harper & Row, 1983) p 184Google Scholar.

65 McGlynn and Rackley, above n 2.

66 Jacoby, above n 64, p 223.

67 Coroners and Justice Act 2009, s 54(4).

68 Clinton, Parker and Evans, above n 11.

69 Coroners and Justice Act 2009, s 55(6)(b).

70 Clinton, Parker and Evans, above n 11, at [16].

71 See, for example, Horder and Fitz-Gibbons, above n 50; Howe, above n 10; Kesselring, KJ ‘No greater provocation? Adultery and the mitigation of murder in English law’ (2015) 34 Law & Hist Rev 199CrossRefGoogle Scholar.

72 Clinton, Parker and Evans, above n 11, at [16].

73 Naffine, N ‘Possession: erotic love in the law of rape’ (1994) 57 Mod L Rev 10CrossRefGoogle Scholar.

74 Howe, A ‘Enduring fictions of possession’ (2012) 21 Griff L Rev 772 at 778Google Scholar.

75 Powell, A and Henry, N Sexual Violence in the Digital Age (Basingstoke: Palgrave Macmillan) p 119Google Scholar.

76 J Lewis ‘Cornish man posted 35 revenge porn pictures online after breaking up with girlfriend’ (Plymouth Herald, 24 April 2016).

77 Ibid.

78 Ibid.

79 Paul Deacon was jailed for six months for attacking his ex-wife and then posting a topless photo of her on Facebook.

80 T Burrows ‘“Your wives are not your property”: judge blasts jilted husbands who post revenge porn as he jails a thug who attacked his ex and then posted a topless picture of her on Facebook’ (Mail Online, 20 October 2016), available at http://www.dailymail.co.uk/~/article-3856002/index.html (accessed 17 November 2018).

81 Hansard HC Deb, vol 582, col 1368, 19 June 2014.

82 Bacon, F The Essays (Harmondsworth: Penguin, 1985) p 72Google Scholar.

83 Balkin, JM and Kozlovski, N ‘Introduction’ in Balkin, JM et al. (eds) Cybercrime: Digital Cops in a Networked Environment (New York: New York University Press, 2007) pp 1–2Google Scholar.

84 Hansard HL Deb, vol 755, col 970, 21 July 2014.

85 Ibid, cols 973–4.

86 Ibid, col 976.

87 Section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 criminalises disclosing, or threatening to disclose, an intimate photograph or film, where a defendant intends to cause alarm of distress to the victim or is reckless as to whether or not alarm or distress will be caused to the victim. Such an approach could inadvertently criminalise young people who share images of other young people (commonly referred to as sexting).

88 Hansard HL Deb, vol 776, col 1443, 16 November 2016.

89 CPS ‘Revenge pornography – guidelines on prosecuting the offence of disclosing private sexual photographs and film’ (2016) available at http://www.cps.gov.uk/legal/p_to_r/revenge_pornography/ (accessed 17 November 2018).

90 McGlynn, C, Rackley, E and ‘Beyond, R Houghton “revenge porn”: the continuum of image-based sexual abuse’ (2017) 25 FLS 25Google Scholar.

91 Mathen, C ‘Crowdsourcing sexual objectification’ (2014) 3 Laws 529 at 531CrossRefGoogle Scholar.

92 Vora, A ‘Into the shadows: examining judicial language in revenge porn cases’ (2017) 18 Geo J Gender & L 229Google Scholar.

93 McGlynn and Rackley, above n 2.

94 Vora, above n 92.

95 McGlynn, Rackley and Houghton, above n 90.

96 Sentencing Council Sexual Offences Definitive Guidelines (2013) available at http://www.sentencingcouncil.org.uk/wp-content/uploads/Final_Sexual_Offences_Definitive_Guideline_content_web1.pdf (accessed 17 November 2018).

97 See above n 98.

98 See Gillespie, above n 1 for a detailed discussion about s 33(8).

99 McGlynn Rackley and Houghton, above n 90, at 14.

100 See above n 96, at 33.

101 Communications Committee Social Media and Criminal Offences (HL 2014–15, 37) para 13.

102 Gillespie, above n 1.

103 McGlynn and Rackley, above n 2, at 24.

104 See Ministry of Justice Limiting the Use of Complainants’ Sexual History in Sexual Offence Cases, CM 9547.