Image Based Abuse (Revenge Porn) and the Law: Non Consensual Intimate Images

Image Based Abuse (Revenge Porn) and the Law: Non Consensual Intimate Images

Image based abuse, commonly known as “revenge porn,” is a form of non-consensual exploitation and harassment that has become a growing concern in recent years. This abusive practice involves the distribution or publication of intimate, private images or videos without the consent of the individual depicted.

The purpose of this blog is to educate readers on the legal aspects of image based abuse, providing an overview of the crime and the available legal resources. This blog also aims to provide you with a comprehensive overview of the legal landscape surrounding this form of non-consensual exploitation and harassment. It is crucial to understand the severity of this issue and the profound impact it can have on individuals, their personal lives, and their well-being.

Understanding the Crime

Image based abuse refers to the non-consensual creation, distribution, or threat to distribute intimate or sexual images of an individual. This abusive practice is often incorrectly labelled as “revenge porn,” as the motivations behind such actions can be diverse and not necessarily driven by revenge. It can also be inaccurate, as the images shared or threatened to be shared do not necessarily need to be pornographic in nature.

Rather, image based abuse can involve any type of intimate or private visual material, and the perpetrator’s motives can range from a desire to control, punish, or humiliate the victim, to financial incentives, or a pursuit of social status or notoriety. The core issue with image based abuse is the lack of consent from the individual depicted in the images or videos.

According to Victoria Police, compromising, sexual, or intimate image or video includes depictions of:

a person engaged in a sexual activity
a person in a manner or context that is sexual
the genital or anal region, or breasts of a person.

This includes manipulated or altered digital images or videos created to look like someone.

Brief History

Image based abuse is not a recent development brought about by the development of digital technology and the internet. In actuality, private photos have been published without consent for decades. The famous actress Marilyn Monroe’s naked photos were featured on the cover of Playboy magazine as early as 1953 without her permission. A person’s private and personal images were shared publicly without their consent in this blatant and early instance of image based abuse. High profile women have since been the targets of comparable types of non-consensual exploitation and privacy violations in each of the ensuing ten years due to the publishing or dissemination of their private photos.

The development of media technologies in the latter half of the 20th century is directly associated with the rapid rise of image based abuse. Our everyday lives now revolve around online places that are becoming more and more “toxic,” as platform design and algorithms encourage the propagation of abusive content and misogynistic discourses. The advancement of technology has made it easier for criminals to obtain, distribute, and exchange private information without permission. The alarming increase in the frequency of image based abuse is a result of the convergence of these technological and sociological variables, highlighting the necessity for all-encompassing solutions to address this problem.

Users no longer require actual photos of their victims because of advancements in AI technology in the 2010s. Alternatively, they can produce “deep fakes.” These are artificial intelligence (AI) face-swapping technology-based sexual content fakes.

In Victoria

Despite the criminalisation of image based abuse in Victoria nearly a decade ago, the number of women targeted with this form of sexual violence continues to rise. This type of abuse remains significantly underreported, with perpetrators often using the material as a means to exert control or blackmail their victims.

The definition of “intimate images” under the relevant legal reforms also encompasses digitally created content, such as deep fake pornography. This indicates that the scope of image based abuse extends beyond just non-consensual sharing of real intimate imagery, and encompasses the exploitation of victims through the creation of synthetic or manipulated media as well.

The persistence of this issue highlights the pervasive and complex nature of image based abuse. This suggests the need for continued efforts to address both the technological and societal factors that enable and perpetuate this form of sexual violence against women.

Since the initial 2014 legal reform, the number of culprits facing court for disseminating intimate pictures without agreement has increased, with over 40 charged between April 2015 and March 2016 and nearly 100 between April 2022 and March this year.

According to data from the Crime Statistics Agency, 107 persons were arrested in 2021–2022 for allegedly engaging in image based sexual abuse, and over 100 others were cautioned, warned, or otherwise avoided charges for sharing personal photographs without permission the following year.

Legal Aspects and Recourse

Summary Offences Act 1966 (Vic)

Visually capturing genital or anal region (section 41B)

In situations where another person would reasonably expect that their genital or anal region could not be visually captured without that person’s consent—aside from using the internet or a broadcasting or data casting service, or a police officer acting in the course of their duties—it is illegal to purposefully take a picture of an adult’s genital or anal region.

Maximum penalty: imprisonment for 2 years.

Distribution of an image of genital or anal region (section 41C)

It is an offence for a person who has visually captured an image of an adult person’s genital or anal region (whether in violation of section 41B) to intentionally distribute that image for a particular purpose without the consent of the person, unless the person being visually captured expressly consents to it.

Another exception applies to this section:

Where the subject is a child or other person incapable of giving consent; and
The capturing was not made in contravention of section 41B; and
A reasonable person would regard the image as acceptable.

Maximum penalty: imprisonment for 2 years.

Distribution of an intimate image (S 41DA)

It is an offence to intentionally distribute an intimate image of an adult person to a third party, if the distribution of the image is contrary to community standards of acceptable conduct, where the person has not expressly consented, or could not reasonably be considered to have consented to the distribution.

Maximum penalty: imprisonment for 7 years.

Gathering evidence to prove technology-facilitated stalking or abuse

Sometimes it can be hard to prove stalking or abuse that is technology-facilitated. Some tips for gathering evidence are:

Do not remove text messages, voicemail messages, or photographs.
Try to save any evidence on a PC or USB flash drive.
Use screenshots and save the images with the date and time they were taken. When capturing screenshots of websites, always include the URL. Additionally, keep a diary or voice notes with dates and times for incidences.
Consider giving police written authorisation to examine your phone, computer, Facebook, email account, and so on if a situation is being investigated.

Prevention and Intervention

Prevention Strategies

Awareness Campaigns – Public awareness campaigns can educate the general population about the harms of image based abuse and the importance of consent when sharing intimate media.
Community Initiatives – Grassroots organisations, advocacy groups, and local authorities can spearhead community-driven programs to prevent image based abuse.
Policy Changes – Lawmakers should continue to review and strengthen legislation to criminalise the non-consensual distribution of intimate images.

Stakeholder Roles

Law Enforcement – Police and investigators need robust training to properly handle cases of image based abuse, ensure victim safety, and collect digital evidence.
Social Services – Victim support services, such as counselling, legal assistance, and mental health resources, are essential for those affected by image based abuse.
Educational Institutions – Schools, colleges, and universities should incorporate digital safety and consent education into their curricula.

Individual and Community Actions

Personal Safety Measures – Individuals can take steps to protect their digital privacy, such as limiting the creation and sharing of intimate images, using strong privacy settings on online accounts, and being cautious about who they trust with such content.
Risk-Reduction Techniques – Communities can organise self-defence workshops and promote digital literacy programs to help individuals recognise and mitigate the risks of image based abuse.
Bystander Intervention – Educating the public on how to safely intervene and support victims when they become aware of image based abuse can foster a culture of collective responsibility.

Conclusion

Image based abuse is a complex form of sexual violence that has become a growing concern in recent years. By exploring the legal landscape surrounding this issue, the aim is to empower individuals with the knowledge they need to navigate this challenging situation and seek the support they deserve.

Understanding the history, social, economic, and psychological factors that contribute to image based abuse is crucial in developing comprehensive solutions. While legislative action has been taken to criminalise this behaviour, the persistence of the issue and the ongoing underreporting highlight the need for continued efforts to address both the technological and societal factors that enable and perpetuate this form of sexual violence.

The collective responsibility of individuals and communities to recognise, intervene, and support victims is crucial in promoting a more just and equitable society, free from the devastating consequences of image based abuse.

If you, or someone you know has been accused of image based abuse or any other type of sex offence, contact us for a no-obligation consultation to discuss your circumstances. Our experienced legal team is dedicated to helping you navigate the complexities of the law and protect their rights.

Disclaimer: The information provided is of a general nature and not tailored to your individual circumstances. Please get in touch for independent legal advice specific to your situation.

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