This article is written by Mir Adnan Zahoor, pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy from Lawsikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).
“The inviolability of the person is as much invaded by a compulsory stripping and exposure as by a blow. To compel anyone . . . to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass . . . .” – Justice Horace Gray.
Revenge pornography is the non-consensual distribution of sexually explicit photos or video that is used to threaten and control the victim. Scholars have argued that revenge pornography should be considered a type of violence along a “continuum of Image Based Sexual Abuse (IBSA)”. Furthermore, revenge pornography presents a glaring example of gender imbalance and power differential whereby women are mostly being portrayed as submissive sexual objects, who are subordinate to men. It would not be amiss to presume that revenge porn media forms the part of a larger cultural narrative that not only objectifies, degrades, and humiliates women, but also seeks to entrench a belief system that devalues women and encourages acts of misogynistic dominance and power.
Noteworthily, scholars have also pointed out deficiencies with the “revenge porn” terminology as it fails to capture behaviours of perpetrators that go beyond the acts of distributing intimate images without consent. It has been suggested that terminology that captures a wide range of motivations, not limited to revenge, is needed. Further, apart from revenge, other motivations of offenders such as blackmail, monetary gain, sexual gratification, social notoriety or entertainment need to be taken into account as well. The perpetrator in this offence should not be narrowed down to ex-partner and to his revenge motivations, but also extended to unknown and unrelated persons combined with various motivations and contexts.
“Revenge porn” terminology can therefore lead to an oversimplification of what is actually a complicated offence. Hence, a nuanced understanding of this technology facilitated menace is necessary to ensure accountability and dispensation of justice to the victims. Further, the effects of revenge porn are devastating to the victims of it. Victims of revenge porn evidence psychological symptoms congruent with posttraumatic stress disorder. 93% of victims indicated that they suffered significant emotional distress in a survey conducted by Cyber Civil Rights Initiative. The revenge porn epidemic is violative of an individual’s right to life and its facets such as dignity, privacy and autonomy. Therefore, it offends both the guarantees of the constitutions and international covenants pertaining to the right to dignified life and liberty.
The offence of revenge porn needs to be redressed by the coercive power of law as well as non-legal redressal options, both of which need to be sought and explored. A holistic approach needs to be adopted that secures effective redressal and justice to victims, and at the same time, ensures robust deterrence and prevention.
In the following Section of this article, questions as to the definition of revenge pornography; the harms inflicted by it on the victims and society; recourses to redressal; and finally the conclusion have been seriatim delineated.
The definitional conundrum of ‘revenge porn’
Limitations of the revenge porn terminology
Scholars have argued that the term “revenge pornography” focuses ‘solely on the motivation of the offender rather than the harm inflicted upon and experienced by the victim. More importantly, the language used to describe nonconsensual pornography is influential for it impacts how these crimes are dealt with by law enforcement and how they are perceived by the public and media.
Further, the attention that “Revenge Porn” has garnered cannot be discounted, but given its limitations, it is being rejected on the following grounds:
- “Revenge porn” as a misnomer: Not all the perpetrators of “revenge porn” are motivated by revenge, as other motivations such as blackmail, entertainment, economic gain etc. can also trigger them. . Therefore, this term emerges as a misnomer.
- “Revenge porn” limits the focus on non-consensual image sharing by ex-partners: ‘The revenge porn terminology fails to bring into its fold the perpetrators who may not necessarily be ex-lovers or ex-partners. Therefore, this terminology unwittingly excludes violations by unrelated and unknown perpetrators, who without doubt can also be potential non-consensual sharers of private images or media.
- “Revenge porn” terminology entails victim-blaming connotations: This terminology is suggestive of a connotation whereby the violated person is a provocateur herself because of her behaviour or carelessness which led to or invited the conduct of the offender; or that the victim is conscious about the production of pornographic content, and hence complicit. This line of understanding can lead to victim-blaming rather than direct the focus on the conduct of the offender.
- Attention is directed at the content of the image, and not the perpetrator: Finally, “revenge pornography” instead of directing the attention to sexual abuse committed by the perpetrators, directs the attention to the content of the image.
Image Based Sexual Abuse (IBSA) as an alternative to “revenge porn” terminology
Notably, “revenge porn” has been alternatively labelled as “non-consensual pornography”, “involuntary porn”, “non-consensual sexting”, or “image-based sexual abuse” (IBSA). However, the IBSA is comparatively useful in capturing the wide range of behaviours underlying the so-called “revenge porn”.
IBSA is inclusive of three key behaviours, which are stated hereunder:
- The first behaviour type may involve the taking of non-consensual nude or sexual images. Motivations of the offenders may include sexual pleasure, gender domination, entertainment, or monetary gain. Examples of stealth photography or filming of victims (like “creepshots,” “upskirting,” and “downblousing”) without their knowledge in both public and private spheres belong to this behavior-type.
- Second, IBSA also refers to the non-consensual dissemination of nude or sexual images distribution, whether online or offline or both. Offenders’ motivations may range from retribution, sexual gratification, monetary gain, voyeurism, or social status building. Offenders are encouraged by the anonymity that can be secured on the internet and the economic gains from the online pornographic industry. The offenders enjoy the liberty to share the identity credentials of their victims. The availability of identity details of the victims leaves them vulnerable to repeated victimization by the same or other offenders.
- The third key IBSA behaviour involves the issuance of threats to the victims to share their nude or sexual images, also known as “sextortion”, that is, acts committed against persons who are threatened with revealing of their sexual content, or any other sexual media related to them in lieu of money or any sexual favour. The perpetrator’s motivations for such behaviour may include extortion of money from the victims, seeking unwanted sexual intimacy, the humiliation of victims, intimidation to share sexually coloured media of victims, forcing the victim to continue an abusive relationship and offender’s exercise of domination for power or mere enjoyment. Breaches committed against victim’s devices like mobile phones or computers to gain unauthorized access to images and use of them as tools of intimidation may also arise in this IBSA behaviour-type.
Therefore, the foregoing discussion as regards the IBSA clearly shows the usefulness of this terminology and its coverage of multifarious behaviours and correlative motivations behind media-based sexual abuse.
Why is a coherent and all-encompassing definition of ‘revenge porn’ needed?
Arguably “revenge pornography” focuses on the motivation of the offender rather than the harm inflicted upon and experienced by the victim. The language deployed to describe non-consensual pornography has to be conscious of the effect it can have on law enforcement as well as the perception it creates within the media and the public. Scholars Henry and Powell rightly argue that ‘these crimes are too often framed as user naiveté or bad decision-making on the part of the victim and not as gender-based violence perpetrated by offenders to harass, coerce, or blackmail women’. Therefore, the classification and characterization of these offences can be achieved better if the laws that take into account the so-called “revenge porn” as part of a continuum of abuse, are facilitated by larger cultural values rather than specific instances of nonconsensual distribution.
The harms inflicted by “revenge porn”
The harms inflicted by “Revenge Porn” are deeply gendered, and females predominantly happen to be the victims. The offence of “Revenge Porn” is replete with the violations of individual victim’s personhood and its negative impact on society. An overview of these harmful effects has been provided hereinbelow.
“Revenge porn” as a violation of personhood
- Harms of personal and bodily nature: The image-based sexual abuse is detrimental to the physical and mental well-being of the individuals depicted in the images. 80% of ‘revenge porn’ victim-survivors experienced severe emotional distress and anxiety as per a study of the US Cyber Civil Rights Initiative. Studies have recorded adverse impacts on individuals including education, emotional trauma as well as instances of suicide.
Further, owing to the “revenge porn” victimization and subsequent online sexual media abuse, victims have reported incidents of employment discrimination – like outright dismissals and denial of employment. Also, victims are so adversely affected that they force upon themselves a closeted identity, retreating from both the physical and virtual world.
All this amounts to the absence of favourable conditions required for the exercise of civil, economic and social rights by an individual.
- Invasion of privacy and personal dignity: Image-based sexual abuse constitutes a serious violation of individuals’ fundamental right to privacy and the right to a dignified life. Privacy is inherited by every individual and is indispensable for the realization of their personal liberty, human dignity and exercise of autonomy. Therefore, when sexually coloured media is non-consensually shared by the offender, he not only invades and encroaches upon the victim’s privacy, but also disables the victim’s right to assert and control all those facets of her human personality which she would have otherwise preferred to keep secret.
Whenever images of the victim are disseminated in absence of her explicit consent, it is immaterial whether such pictures were produced consensually or otherwise, as in both instances; a severe breach of the expectation of trust and confidentiality is occasioned to the victim. Therefore, the legitimate right to the recognition of privacy is impaired at the peril of the victim.
- Hindrances caused to the sexual autonomy: As mentioned in the foregoing, the right to privacy is vital for the exercise of sexual autonomy as it ensures an individual to make decisions independently that are intimate to human personality. At the heart of it lies the consent of the victim, the decisional autonomy of her to make decisions on the facets of her person which she would choose to publicize or keep private. The harassment and abuse that is invited upon the victim by way of image-based sexual abuse denudes and disables the victim of her right to make her choices thereby denying her both sexual privacy and agency.
Where instead of disapprobation of perpetrators of image-based sexual abuse, the entire focus is shifted to shaming the victimized females by holding them responsible for the creation of sexual media only speaks of the prevalence of gender inequality and the wider socio-cultural environment that allows such an unfair treatment against the females to exist and thrive.
Impact on society
The offence of image-based sexual abuse does not only cause personal injury to the victim of it, but the effects cause harm to society as well. Any failure on part of the society to uphold the women’s capacities of consent will further encourage violence against them in all its forms and shapes. Further, rendering of online sexual abuse of females as mere ‘hypersensitivity’ or ‘humorlessness’ of females is indicative of victim-blaming and the making of a narrative that seeks to minimize the harms of online abuse and leads to the potential normalization of such egregious conduct. Consequently, such a cultural narrative will cause the members of the society to get steeped into a culture where infractions of privacy and sexual autonomy of women will, overtime, become tolerated.
As has been discussed previously, this will result in inhibiting women’s voices, and engender their invisibility both in the physical and virtual world. Thus, a negative impact on the personality of the victims because of online sexual abuse is not detrimental to the victims alone, but also leaves societies bereft of a public discourse that is richer in terms of the plurality of views and reflective of equality of individuals in every facet of their human existence.
Options of redress
Legal responses : criminal and civil remedies
Law plays a vital role in regulating the behaviour of individuals by informing them about the commissions and omissions (both of criminal or civil nature) that are proscribed by it in order to prevent detriment or harm to others. Further, the prescription of certain conduct is reflective of societal censure for such conduct. Therefore, the law can be said to have the function to protect individuals from unlawful deprivations of their right to a dignified life and personal liberty.
- Criminalization of “revenge porn”: Several countries across the globe have criminalized the distribution of nonconsensual pornography. The Philippines became the first country to criminalize such behaviour in 2009. Other countries followed, including Australia, the United Kingdom, Japan, Israel, and Canada, responding to this issue by creating and implementing laws against the non-consensual distribution of intimate images. In the United States, approximately 48 states and the District of Columbia have criminalized revenge pornography. In addition, multiple perpetrators as well as website owners, who encourage the posting of revenge porn have been successfully prosecuted under these new laws.
In India, there is no specific statute for the offence of “revenge porn”, but the accused can be charged under various sections of the Indian Penal Code, 1860 (IPC) and Information Technology Act, 2000 (IT Act). The following Section of the IPC that will be attracted includes Section 292 (Sale etc., of obscene material); Section 354C (Voyeurism); Section 499 (Defamation); and Section 509 (Word, gesture or act intended to insult the modesty of a woman). And under the IT Act following Section will be attracted: Section 66E (Punishment for the violation of privacy); Section 67 (Punishment for publishing or transmitting of obscene material in electronic form); Section 67A (Punishment for publishing or transmitting of material containing the sexually explicit act, etc., in electronic form); and Section 72 (Penalty for breach of confidentiality and privacy).
The first successful prosecution for “revenge porn” in India was in the case of State of West Bengal v. Animesh Boxi. The case is considered to be a landmark as the accused in the case was convicted for uploading intimate photos and videos of his former girlfriend on pornography websites and sentenced to 5 years imprisonment along with a fine of Rs. 9,000. Also, demands of sexual favours by the accused, online stalking, and taking and transmitting of images of the victim without her consent, were held to have caused injury to the victim. Further, the Court reasoned that the absence of physical injury was immaterial as the victim had suffered the injury on account of her reputation and the same could be read within the scope of the definition of ‘injury’ provided under Section 44, IPC.
Image based sexual abuse will be considered as a form of sexual abuse just like physical sexual abuse if there is a penal sanction. Therefore, fixing criminal responsibility for image-based sexual abuse will ensure accountability for offences that inflict grave harm on the right to dignified existence of individuals, paving the way for a form of redress and justice to the victims.
- Civil remedies for revenge porn: Victim-survivors of image-based sexual abuse have put to their use civil law when seeking redress in many jurisdictions. It has been argued that the suits brought under common law or statutory civil law have brought victims of IBSA to a position of control.
“Revenge porn” victims have used copyright law in order to seek justice. For example, one victim copyrighted her breasts and demanded her revenge porn photos be removed from the Internet. She also sought financial damages from her perpetrator. One Californian woman was awarded $6.4 million (USD) from the court after she copyrighted her intimate images and sought damages for copyright infringement and severe emotional distress. In cases such as these, victims have been successful in civil suits where the aim was receiving damages and having images removed from the Internet.
In the UK, the Court granted a non-disclosure order in favour of the claimant to protect her ‘right to confidentiality and privacy’ in respect of ‘sexual’ photos and personal text messages she had sent to the second defendant who had been her former partner.
In Australia, where the defendant had uploaded private sexual photos and videos taken during their relationship to Facebook, the Court awarded the claimant over $37,500 in damages, alongside an injunction and held the defendant in breach of confidence against her former partner.
- Need for public-private collaboration: For the purpose of addressing the menace of harassment on online platforms, suggestions have also been made in support of public-private collaboration involving the law enforcement agencies, information technology industry and internet service providers (or ISPs). However, what also needs to be ensured is that information exchange is used only for investigative and intelligence purposes and is not misused to unlawfully deprive individuals of their civil liberties. Further, such collaborations can be used as a means to impart necessary technical knowledge to all the stakeholders in the criminal justice system so that investigation, prosecution and adjudication of cybercrimes can become easier and speedier.
- Role of education: The role of education has been argued to be the first step towards self-protection, and that educating the potential perpetrators has been described as one of the best solutions to curb sexual harassment on the internet. Education programs have also been advocated for those convicted for such offences so that they are sensitized about the harms of cybercrimes and are educated on how they can make well-informed choices in the future.
From the above discussion, it is very clear that “revenge porn” has far-reaching implications for the victims. The experience of image-based sexual abuse can be as debilitating an experience for the victims as the physical abuse. Consequently, this not only hinders the overall personal development of the victims but at its very core, impairs their very right to a dignified life. With the increase in the availability of internet accessibility, access to sexual media has also increased. The market of sexually-explicit media, which in the words of scholars K. Holt and R. Liggett ‘used to be an underground venture has now become a thriving, vast corporate-capitalist industry that is accessible to all and facilitates and maintains a rape-supportive culture’. Moreover, the anonymity and amplification of the internet are used by the perpetrators of image-based sexual abuse at the peril of their victims, whose suffering becomes permanent (given the nature of the internet), and revictimization becomes an ever-present threat.
Furthermore, the language that is deployed to describe image-based sexual abuse needs to be revisited. A coherent language that would cover wide-ranging motivations behind this sexual abuse and perpetrator-types needs to be followed. The narrative that seeks ‘to shift from revenge terminology towards the commission of gender-based violence needs to be adopted, and this can elucidate the serious nature of the crime of image-based abuse and reveal it as a behaviour used to control, dominate, and humiliate others and prevent them from engaging fully in online spaces’. In the same vein, the language of the statutes should be perpetrator-centric, meaning that the focus of attention has to be the abusive actions of the perpetrator, rather than the content of the (sexually explicit) media.
The victims’ of image based sexual abuse suffer serious violations of their privacy, autonomy and sexual expression. Both the state and society should share responsibility to awaken and sensitize the general public about this menace. The devastating effects of this image based sexual abuse cannot be overlooked as such an attitude will lead to the minimization of its harms and potential normalisation of non-consensual sexual activity. This shall engender a culture that is conducive to further forms of sexual violence. Moreover, not only the coercive power of law but also non-legal redressal options need to also be explored and deployed so that a holistic approach can be devised to deal with such a grotesque violation of human dignity.
Thus, the inviolable and inalienable right to a dignified life of victims of revenge porn needs to be restored and justice needs to be dispensed to them. Personal autonomy and privacy, which form as part of the personhood, are inextricably linked to each other; and their violations by image based sexual violations or any in other manner, cannot be allowed with impunity or tolerated in any conscientious society. To conclude with the following words of the Supreme Court of India in K S Puttaswamy v. Union of India held, “…Privacy postulates the reservation of a private space for the individual, described as the right to be left alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated with matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy…”.
- Union Pacific Railway Co. v. Botsford:: 141 U.S. 250 (1891):: Justia US Supreme Court Center
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