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CRIMINALISING IMAGE-BASED SEXUAL ABUSE: AN ANALYSIS OF THE DUTCH BILL AGAINST ‘REVENGE PORNOGRAPHY’

Dit artikel verscheen in Ars Aequi juni 2019.

This article defines image-based sexual abuse, rejects the term ‘revenge pornography’ and analyses the Dutch bill of article 139h Sr intended to criminalise image-based sexual abuse. Issues regarding the intention of the perpetrator, victim-blaming and the sexual breach of privacy are reviewed in connection to the likely fairness and effectiveness of the bill.

 

  1. Introduction

Out of the blue, Marleigh received a text message from an acquaintance: ‘Sorry to be the bearer of bad news, especially since we haven’t talked in forever, but you should know that a private picture of you was posted online.’[1] This was when she found out an image of her had been published without her consent by a former partner. ‘I found my image: my face and breasts glaring back at me through the screen. I tried to negotiate my feelings with myself, saying over and over in my head. “It’s ok. It’s not the worst picture. It’s just my boobs and my face. It could be worse.”’[2] ‘But It was the worst because it was a photo of MY breasts and MY face posted up for anyone to see without my permission or even knowledge.’[3] Marleigh is a victim of image-based sexual abuse, more commonly known as revenge pornography. Victims of image-based sexual abuse are harmed deeply and publication is virtually irreversible.[4] Once the harm is done, victims can be victimised over and over again, whilst having almost no legal remedies available to them. Image-based sexual abuse is not currently criminalised in most countries, including the Netherlands. Although a proposal to change the law was presented in May 2018, the proposal has not yet been adopted and is still under discussion. The draft bill is problematic, and this article discusses some of the main issues arising from the draft bill.

Before I analyse the draft bill, I introduce terminology and define image-based sexual abuse. I then discuss the harms and wrongs of image-based sexual abuse. These harms and wrongs are closely tied to why criminalisation of image-based sexual abuse is necessary (although not everyone agrees). The harms and wrongs are followed by a review of the Dutch draft bill. Following this review three main issues regarding the draft are considered: the problem of focusing on the intention of the perpetrator, the sexual breach of privacy and the placement of the criminalisation of image-based sexual abuse in the law as a whole.

  1. ‘Image-based sexual abuse’ instead of ‘revenge pornography’[5]

2.1 Defining ‘image-based sexual abuse’

Image-based sexual abuse has been defined in many different ways.[6] In this article image-based sexual abuse is defined as the non-consensual disclosure of private images or videos.[7] As I stated above, image-based sexual abuse is more commonly known as ‘revenge pornography’. The term ‘image-based sexual abuse’ was first used in a news report,[8] and subsequently adopted by several scholars because it better reflects the harm done.[9] The first to adopt this term, Clare McGlynn and Erika Rackley argue that: ‘Replacing the language of ‘revenge porn’ with the more accurate and inclusive “image-based sexual abuse” would be a small – yet important – step in challenging the cultural context conductive to high levels of sexual coercion and violence.’ Following this argument I refrain from using terms the term ‘revenge pornography’, which could be considered an abusive term.

2.2 Why ‘revenge pornography’ is not an ideal term

A reason why the term ‘image-based sexual abuse’ better covers the content of the issue indicated than the term ‘revenge pornography’ does, is that the use of the word ‘revenge’ is confusing with regard to the issues indicated. Because the term ‘revenge pornography’ is quite well known, one might be inclined to assume that the case of Marleigh covers the full scope of image-based sexual abuse. However, revenge is not the only possible motive, and it would be wrong to suggest that it is.[11] Image-based sexual abuse is done for a lot of reasons: to humiliate, for fun, to cause harm, etc.

The other half of the term ‘revenge pornography’ is also problematic: the common meaning of the term ‘pornography’ has a connotation of being something naughty but not particularly harmful.[12] Consensual pornography is made with an audience in mind, and thus intended for publication by the people depicted in it. Calling image-based sexual abuse ‘revenge porn’ is like calling ‘rape’ ‘revenge sex’. Rape is committed for many reasons (revenge may indeed be one of them), and none of those are ‘good reasons’: rape is always wrong, regardless of how much it may look like consensual sex from the outside. It does not do justice by victims to call rape a form of ‘sex’, just as it does not do justice by victims to call image-based sexual abuse a form of ‘pornography’.

2.3 Fair labelling: why ‘image-based sexual abuse’ is a better term to use

Proper naming of a crime is beneficial for justice. This is the concept of fair labelling.[13] Fair labelling affects the way a crime is perceived: it matters that the label put on the perpetrator is the correct one (for instance that he is called ‘a rapist’ and not ‘a thief’), otherwise it would be unfair. A fair label describes the wrongs a perpetrator committed and for which he was prosecuted. A fair label also impacts the victim. Victim-blaming is not uncommon in image-based sexual abuse,[14] and a fair label could aid in making external parties see that in fact the victim is not to blame as it is a form of abuse. ‘Image-based sexual abuse’ is a fair label for the non-consensual disclosure of private images or videos.

  1. Impact on victims: the harm caused by image-based abuse

3.1 When harm is done to victims

The ‘non-consensual disclosure’ element of image-based sexual abuse is an identifying characteristic and of particular importance: the disclosure is non-consensual, meaning that whoever disclosed private images or videos without consent goes against the wishes of the depicted person. In cases of image-based abuse in which the image or video was consensually made (this does not automatically mean that consent for publication is also given), the victim may not have been wronged up until the moment that someone decides to disclose her image without consent.[15]

3.2 The harm suffered by victims

Victims of image-based sexual abuse can suffer great harm from image-based sexual abuse. The Australian eSafety commissioner reported that victims had ‘feelings of fear, shame, humiliation, anger, sadness and depression’.[16] It is important to note that these harms are caused by the loss of control over who gets to see private images. Victims are not (usually) ashamed of being sexual beings, but rather they are ashamed of being seen as sexual beings without their volition and by people they did not want them to see them as such.[17] The intention of the perpetrator is irrelevant for the harm caused to victims.

These harms have a terrible impact on victims. In addition to

  1. The wrongs of image-based sexual abuse

4.1 Wronging the victim

The harms faced by victims of image-based sexual abuse are largely caused by three essential wrongs done to them. In the analysis of the essential wrongs of image-based sexual abuse I use Herring’s analysis of the essential wrongs of domestic violence.[22] Domestic violence and image-based abuse have very similar wrongs. Herring identifies at least three essential wrongs: the breach of trust, coercive control and the social impact. Depending on the acts leading up to the non-consensual disclosure (was the image made with or without consent? How did the perpetrator get access to the image?) two or three of these wrongs are present in image-based sexual abuse.

4.2 A breach of trust

The first essential wrong discussed here is the ‘breach of trust’. Herring notes that an intimate relationship involves a ‘thick interpersonal trust’.[23] Domestic abuse involves a breach of that trust. In an intimate relationship there is trust that the disclosed intimacy will stay between partners, that it is safely harboured within the other.[24] Trust creates the obligation ‘not to take advantage of the vulnerability created by intimacy’.[25] A breach of trust occurs in image-based sexual abuse when the perpetrator was entrusted with the images he disclosed without consent, and can only occur if the depicted person entrusted the images to the person disclosing them.[26] Breaching trust that was present in an intimate relationship ‘turns what should be a tool for self-affirmation and self-identification into a tool for alienation and self-betrayal’.[27] The victim ‘almost becomes used as a tool against herself’.[28] This breach of trust constitutes a wrong towards the victim and contributes to the harms faced by victims.

4.3 Coercive control

Any perpetrator of image-based sexual abuse, whether he was entrusted with the images or films or gained access to the materials in another way subjects his victims to his coercive control.[29] This means that a victim is no longer free to decide who to show her body to. This seems to be part of the attraction for perpetrators. Herring recognises coercive control as an essential wrong of domestic abuse, because of the aim of the abuser: ‘The whole aim of the behaviour of the abuser is to dominate the victim and diminish her sense of self-worth.’[30] Coercive control as present in domestic abuse can also be recognised in image-based sexual abuse: pornography is available all over the internet, yet that does not seem to satisfy the perpetrators of image-based sexual abuse. Image-based sexual abuse is not about seeing pornographic images, but about control. Reasons vary from revenge to humiliating the victim, to seeing a particular woman naked, or claiming pictures of other people’s bodies as property.[31] The autonomy a woman has over herself and her freedom to choose over who gets to see her a certain way are taken away. In other words: she is controlled coercively when she is a victim of image-based sexual abuse.

4.4 The social impact

Lastly, Herring identifies an element of wrong within the social impact of domestic abuse. He notes that ‘[d]omestic violence not only relies on existing inequalities within society, it reinforces them’.[32] The social impact of image-based sexual abuse can be seen as the reinforcement of the idea that the objectification of others against their will is acceptable: it slowly becomes taken for granted that a person, whose private, intimate and sexual images or films are disclosed, loses her right to decide over her own body. In other words: the social impact of image-based sexual abuse is the normalisation of it. The more people get used to the idea that private images are being shared without consent, and the more people take part in this non-consensual sharing (either by sharing images or by actively looking at non-consensually disclosed images), the more acceptable this behaviour is bound to become. This tendency can already be recognised when victims of image-based sexual abuse are famous.[33] The social impact is therefore to be seen as the idea that ‘it is just the way it is’. This wrong can be countered by establishing an effective criminalisation and awareness, by means of which society condemns the behaviour instead of silently approving it.

  1. The proposed Dutch law against image-based sexual abuse

5.1 Changing minds

The law generally moves slowly (which is not necessarily a bad thing). When developed quickly, the law is likely to lack thorough understanding of the subject matter and fails to acknowledge essential elements. This is apparent in laws developed to criminalise image-based abuse worldwide. The plan to criminalise image-based sexual abuse in the Netherlands was first presented in 2017, a departure from the previous stance that image-based sexual abuse is already criminalised under slander and defamation laws.[34] In principle it should be beneficial for victims that the notion of image-based sexual abuse as slander or defamation is abandoned. A fair label is part of the justice done to both perpetrator and victim. Slander and defamation require the victim to be accused of something, and thus entail the notion that there is something that the victim could have done differently (i.e. not take private images). This is a form of victim-blaming and fails to acknowledge that taking private images is normal.[35] In 2018 a draft bill to criminalise image-based sexual abuse was presented in the Netherlands. The proposed article 139h Sr would – in theory – criminalise image-based sexual abuse. This proposal is discussed in the following.

5.2 The draft bill for article 139h Sr

The article intended to criminalise image-based sexual abuse consists of two parts (referred to as article 139h (1) Sr and article 139h (2) Sr). The article 139h (1) Sr – consisting of (a) and (b) – is intended (a) to criminalise making images of a sexual nature without the consent of the depicted person, and (b) to criminalise having access to and/or publishing images that were made without consent if the perpetrator knew or should have known that they were made without consent.[36] Article 139h (1)(b) Sr is problematic: it fails to criminalise the non-consensual publication of images that were made with consent. No obligation is created for the perpetrator to assure that the depicted person consented to the publication of the image. Publishing an image made with consent but published without consent can be even more harmful to victims, as they are used as a weapon against themselves.[37] Phrasing the law to distinguish between consent and non-consent at the moment an image was made could be unproblematic for the criminalisation of image-based sexual abuse if the victim is protected against an unwanted publication in both cases. The way the Dutch draft bill is phrased shows the legislator’s lack of consideration or effort towards protecting the right privacy of people who consented to private images being made, especially as the second part of draft article 139h Sr fails to effect a thorough criminalisation of non-consensual publication of private images made with consent.

Article 139h (2) Sr concerns the publication of images made with consent. This part aims to criminalise the non-consensual publication of images of a sexual nature if the perpetrator intends to harm the victim by publishing the image.[38] The Dutch legislator appears to follow the example set by the UK in 2015, when ‘revenge pornography’ was criminalised there by criminalising the disclosure of ‘private sexual photographs and films with intent to cause distress’.[39] Both the UK law and the Dutch bill focus on the intention of the perpetrator, as opposed to the wrongs done to the victim. There are two major issues with this standpoint. One problem is that it is almost impossible to prove the intention of the perpetrator if he did not make a comment alongside the publication of the image that showed his intention (for example an insulting comment). If the intention of the perpetrator cannot successfully be proven the perpetrator cannot be punished, even if it is proven that he knowingly published the images without consent. After all: when the law regards the perpetrator’s intention to be a qualifying characteristic of image-based sexual abuse, the perpetrator needs to have had the intention (and this intention needs to be proven) to harm the victim in order for his actions to be criminal. A second reason that the law’s focus on the intention of the perpetrator is problematic is that the harm done to the victim does not change drastically depending on the intention of the perpetrator. The explanatory notes for the draft of article 139h Sr state that the legislator intends to prohibit and prevent the abuse of images of a sexual nature.[40] The legislator acknowledges that making sexual images is considered to be part of contemporary ways of possible interaction with others. By acknowledging this, the legislator seems to aim to protect the victim. By focusing the criminalised act on the intention of the perpetrator (‘non-consensual publication with the intent to cause harm) instead of the wrongs done to the victim (for instance by criminalising a ‘sexual breach of privacy’) the legislator not so much criminalises the abuse of private images with image-based sexual abuse, but rather criminalises ‘harming someone with private images’.

6 Critique on draft article 139h Sr

There are many issues to be raised regarding the draft bill for the criminalisation of image-based sexual abuse in the Netherlands. In the following I will address two issues.

6.1 Intention of the perpetrator

6.1.1 Confusing consent with consent

The legislator fails to protect the victim by making this a crime that depends on the intention of the perpetrator. It is remarkable that image-based sexual abuse concerning images that were made without consent are criminalised more thoroughly than they already are, but the non-consensual publication of images made with consent is hardly criminalised at all, showing an implicit condemnation of the victim who agreed private images to be made. This suggests a form of victim-blaming on the part of the legislator similar to the victim-blaming present when using slander and defamation laws (see §5.1). When presented with the draft for article 139h Sr there were indeed political parties that did not see the need for this article to be created at all: the VVD[41] party questioned the added value this article could have, as the party considered everything mentioned in the article to be already sufficiently criminalised.[42] The VVD fails to acknowledge that draft article 139h (2) Sr entails a completely new criminalisation (although it is limited to the intention of the perpetrator) and thus also fails to acknowledge that there is a need to criminalise the non-consensual publication of images made with consent. It may also be that the political party would consciously argue that victims of image-based sexual abuse with consensual images do not deserve the same legal protection as victims who were recorded without consent. This is not an uncommon view: victims of image-based sexual abuse who did not consent to the making of images are protected better and in more countries than those who consented to the making of images.[43]

6.1.2 Victim-blaming by giving the perpetrator a way out

Image-based sexual abuse wrongs victims regardless of the intention of the perpetrator. The legislator accepts these wrongs with regard to images made without consent but does not accept or acknowledge them with regard to images made with consent. Although it may be true that recording someone without their permission constitutes a harm separate from non-consensual disclosure, there seems to be a concept that eludes the legislator: whether an image was made with or without consent, its non-consensual publication will wrong the depicted person. By including the intention of the perpetrator, the legislator implicitly accepts that the victim was at least partly to blame by allowing such images to be made (even though the legislator accepts this behaviour to be part of normal forms of communication),[44] and thus contributes to victim-blaming. This implication is further aided by the legislator’s claim that the sensitive nature of sexual images requires the depicted person to have a say in whether it can be created (hence the legislator criminalises secretly taken images), while simultaneously explicitly mentioning the perpetrators bad intentions again.[45] The implication: you have a right to choose whether you want to be depicted in a sexual way or not. Once you’ve decided that you want to be depicted that way, the picture is the perpetrator’s to do with what he wishes so long as he does not intend to harm you. The draft bill for the criminalisation of image-based sexual abuse – if adopted – will not change the reality that victims face: the legislator phrased the crime in a way that makes it almost impossible to prove and excludes many forms of image-based sexual abuse.

6.1.3 Levels of intent

The Dutch legal system uses different levels of ‘intent’ in criminal law. In the draft article 139h Sr the legislator has opted for the strongest level of intent, meaning that it needs to be proven without doubt that the perpetrator had the intention to harm the victim. A less demanding level of intent would require that the perpetrator knew or should have known that – in this case – his actions would harm the victim. It is unlikely that a perpetrator of image-based sexual abuse could not be expected to have an idea that non-consensual publication might be harming the victim. It is unclear why the legislator sees the need for the highest level of intent in this criminalisation, especially as the wrongs done to the victim are not related to the intention of the perpetrator. By requiring the highest level of intent, the draft bill is rendered almost useless (impossible to prove) and does not do justice to victims.

6.1.4 Proposing a solution: intention to publish

If the legislator would like to point at an intention the perpetrator might have had, I would propose focusing on the perpetrator’s intention to publish private images. If these images are of a sexual nature or if the perpetrator perceives them as sexual the intention to publish could be considered as the qualification of intent for image-based sexual abuse (see §6.2.3).

6.2 Sexualising privacy

6.2.1 Identifying materials of image-based sexual abuse

The legislator in his initial proposal used multiple descriptions regarding the materials that are recorded or published: in the text of draft article 139h Sr the legislator spoke (and continues to speak) of ‘images of a sexual nature’, whereas the clarifying notes referred to ‘images of an intimate nature’.[46] These are not the same, and the Dutch Council of State warned that these different meanings could lead to unwanted or unintended exclusions from the criminalisation: limiting the criminalisation to images of a sexual nature could potentially exclude images that were secretly recorded in a sauna as they may be considered more intimate than sexual.[47] It could also imply that the legislator treats a sauna as a sexual environment. Upon the advice of the Council of State the explanatory notes were changed to refer to ‘images of a sexual nature’ only, with the clarifying notes containing a definition of that term.

6.2.2 Images of a sexual nature

An image of a sexual nature is defined in the clarifying notes as an image of such an intimate sexual nature that any reasonable person would consider them to be private.[48] It is further considered that an image of a naked body would indeed qualify as an image of a sexual nature. This is problematic. If any image of a naked body is considered to be sexual, nudity is sexualised, which would have implications beyond the scope of this draft bill. It is also not necessary to include a reference to ‘sexual images’ in the criminalisation (see §6.2.3). If the legislator insists on explicitly mentioning ‘images of a sexual nature’ in this draft bill, the legislator could nevertheless explicitly distinguish between sexuality and nudity by – for example – changing the proposed law to read ‘images showing a (partially) naked body and/or images of a sexual nature’. However, I argue that the focus on the sexual nature of the images could be abandoned.

6.2.3 Proposing a solution: sexualising the breach, not privacy

Phrasing the crime of image-based sexual abuse as ‘a sexual breach of privacy’ avoids having to qualify the type of privacy a victim may have been enjoying during the time an image was made (was it sexual privacy? Was it intimate privacy? etc.). Qualifying privacy should not be necessary: it seems to be the point of privacy that what someone does while enjoying it is not the business of others (so long as it is legal). A breach of privacy is a violation of the victim’s rights.

The victim of image-based sexual abuse is further violated by the sexualisation on the part of the perpetrator. The meaning of ‘sexual’ needs to be clarified to enable answering the question what qualifies as a sexual breach. The UK Sexual Offences Act 2003 defined ‘sexual’. The statute considers that an “activity is sexual if a reasonable person would consider that (a) […] it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”[49] This covers the case where it is clear the material will be used for sexual purposes and the perpetrator seeks to deny they personally had sexual motivations; but also cases where the perpetrator finds the material sexual, even though that would be a minority perspective. This definition may well be useful in criminalising image-based sexual abuse in the Netherlands.

7 Placing image-based sexual abuse within the law

The consensual images abused in image-based sexual abuse are of a private nature. This is the intention of the victim. Images that were not consented to should not have existed and thus are not technically intended to be private by the victim, but would nevertheless constitute a breach of privacy.

The materials abused in image-based sexual abuse are sexualised through publication, the exposure of private acts for the sexual enjoyment of others, by the acts of the perpetrator – he portrays the victim as a sexual being visible for everyone to see.

The criminalisation of image-based sexual abuse should concern the non-consensual disclosure of private materials. The main interest to be protected by image-based sexual abuse is sexual autonomy (i.e. not being sexualised without consent), it makes sense for the law to be placed in that framework: with other laws protecting the same interests (i.e. sexual offence laws). Image-based sexual abuse does entail a breach of privacy, yet that is not the main interest to be protected here: image-based sexual abuse is a sexual breach of privacy, i.e. a qualified breach that puts the acts in the sexual offences-framework. It is also unfitting to criminalise image-based sexual abuse as a public offence, the prosecutor’s office suggests that it would only make sense to regard image-based sexual abuse as a public offence if the aim is to prevent the victim being put in a compromising position.[50] This implies a level of victim-blaming: a compromising position should have been avoided by the victim, and sexuality exercised in private but abused by someone else cannot be regarded as compromising.

  1. Conclusion

The draft criminalisation set forth in article 139h Sr is in the wrong place, has the wrong focus, and has further unwanted implications. Image-based sexual abuse should be a sexual offence, protecting the integrity of the victim and condemning the use of people and their depictions. I propose aiming for a criminalisation of ‘a sexual breach of privacy’. Much like other sexual offences the sexual nature of the crime is to be found in the perpetrator’s acts, while the victim’s right to privacy was sexually violated.

A suggestion for a more appropriate law might be something along the lines of the following. First part: it is illegal to make images or films in a private area without the consent of the person recorded. Second part: it is illegal to publish without consent of the depicted person images or films in which the depicted person appears (partly) naked or in a sexual way. This way, there are two separate crimes: secretly recording images, and publishing, images that infiltrate and claim a person’s sexuality. These laws would be best placed in the framework of sexual offences, where they would be next to other laws protecting sexual autonomy. As stated, laws developed without thorough research have so far been rather problematic and ineffective in addressing image-based sexual abuse. My doctoral research at the University of Oxford aims to develop guidelines for legislators on the criminalisation of image-based sexual abuse.[51]

* M.L.R. Goudsmit, LLM MA, is a DPhil Law candidate (Oxford PhD) at the University of Oxford. Her research regards the question how image-based sexual abuse can be criminalised effectively.

[1] M. Farlow, Twitter 23 April 2019. Available at: https://twitter.com/MarLeighBadass/status/1120537611234422784 (accessed: 25 April 2019).

[2] M. Farlow, Twitter 23 April 2019. Available at: https://twitter.com/MarLeighBadass/status/1120538207492374528 (accessed: 25 April 2019).

[3] M. Farlow, Twitter 23 April 2019. Available at: https://twitter.com/MarLeighBadass/status/1120538269819842560 (accessed: 25 April 2019).

[4] Notwithstanding the right to be forgotten in the EU allowing a request with Google to block certain search results and the fact that certain social media platforms have decency-guidelines that would result in certain images being removed from the site. It should be noted that decency-guidelines are aimed at protecting the public, not victims of image-based sexual abuse. Nevertheless, decency guidelines can be useful to victims of image-based sexual abuse with regard to limiting the visibility of the images used to abuse them.

[5] In Dutch a term replacing the term ‘wraakpornografie’ could be ‘seksueel misbruik van privébeeldmateriaal’ or ‘seksueel misbruik van beeldmateriaal’. It should be noted that I reject the suggestion ‘misbruik van seksueel beeldmateriaal’ as I consider the relevant sexuality to be the way materials are being abused, and not necessarily part of a qualification of that which is shown. The materials abused in image-based sexual abuse are private. Generally that would be the only necessary qualification. The sexualisation is forced upon them by the perpetrator and/or the context in which they are placed after publication. See also §6.2.

[6] M.L.R. Goudsmit, Revenge pornography: A conceptual analysis – Undressing a crime of disclosure (master thesis), Leiden University 2017, p. 23-24 (available at https://openaccess.leidenuniv.nl/handle/1887/47472).

[7] See for an extensive discussion on different types of image-based abuse Goudsmit 2017 and M.L.R. Goudsmit, ‘De wijzende vinger bekeken – over de strafbaarstelling van wraakpornografie’, Nederlands Juristenblad 2018, p. 1721-1729.

[8] C. Mariner, ‘Revenge Porn: Government Urged to Make it Illegal’, Sydney Herald 4 October 2015.

[9] See: C.M.S. McGlynn & E. Rackley, ‘Image-Based Sexual Abuse’, Oxford Journal of Legal Studies 2017, p. 534-561.

[10] C.M.S. McGlynn & E. Rackley, ‘Not “revenge porn” but abuse: let’s call it image-based sexual abuse’, Everyday Victim Blaming 9 March 2016.

[11] §3.2 addresses why the intention of the perpetrator is less important than the intention of the victim, which is also not brought across with the term ‘revenge pornography’.

[12] A discussion on the harms of consensual pornography (particularly for the women depicted in it) falls outside the scope of this article.

[13] See for instance: J. Chalmers & F. Leverick, ‘Fair Labelling in Criminal Law’, The Modern Law Review (71) 2008, issue 2, p. 217-246; G. Williams, ‘Convictions and Fair Labelling’, The Cambridge Law Journal (42) 1983, issue 1, p. 85-95.

[14] Goudsmit 2017, p. 41.

[15] I refer to victims as female, as 90% of victims are female. See: Cyber Civil Rights Initiative, www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf.

[16] Office of the eSafety Commisioner Australian Government, Image-Based Abuse Qualitative Research Summary (, October 2017, p. 9.

[17] See: E. Holten, ‘Someone stole naked pictures of me. This is what I did about it – Video’, The Guardian 21 January 2015.

[18] J.V. Roberts, ‘Aggravating and mitigating factors at sentencing: towards greater consistency

of application’, Criminal Law Review 2008-4, p. 264-276.

[19] Surveys held among victim’s suggest that 51% of victims have had suicidal thoughts after falling victim to image-based sexual abuse. ‘Revenge Porn Statistics’, Cyber Civil Rights Initiative, 2014. https://www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf

[20] Two examples can be found in the horrific cases of the 14-year old Dutch boy Onur Cücü and the Italian Tiziana Cantone: J. Pieters, ‘Enschede teen commits suicide over online nude photo’, NL Times 21 February 2017; ‘Tiziana Cantone: Suicide following years of humiliation online stuns Italy’, BBC News 16 September 2016.

[21] Cyber Civil Rights Initiative, www.cybercivilrights.org/wp-content/uploads/2014/12/RPStatistics.pdf.

[22] J.J.W. Herring, ‘The Meaning of Domestic Violence: Yemshaw v London Borough of Hounslow [2011] UKSC 3’, Journal of Social Welfare and Family Law (33) 2011, issue 3, p. 297-304, on p. 301.

[23] D. Khodyakov, ‘Trust as a Process: A Three-Dimensional Approach’, Sociology (41) 2007, issue 1, p. 121.

[24] J. Eekelaar, Family Law and Personal Life, Oxford: Oxford University Press 2006, p. 4-47.

[25] Herring 2011, p. 302.

[26] Although it could be argued that hacking into someone else’s computer/phone/cloud-space could be considered a breach of trust because it violates social norms of behaviour. I would consider this unlikely, as I believe trust can only exist between people that know each other – an acquainted hacker might therefore be considered to breach the trust of his victim by hacking into their computer, but I do not believe one should argue that they also breach the trust of the victim if the images or videos disclosed were not entrusted to the perpetrator.

[27] Herring 2011, p. 302.

[28] Herring 2011.

[29] I refer to perpetrators as male as multiple studies have considered the question of the perpetrator’s gender and have found perpetrators to be generally male. Benjamin Wittes et al. found no female perpetrators while Wolak and Finkelhor found 89% of perpetrators to be male. See: B. Wolak, C. Poplin, Q. Jurecic & C. Spera ‘Sextortion: Findings from a survey of 1,631 victims. Crimes Against Children Research Center’ 2016. https://www.wearethorn.org/wp-content/uploads/2016/08/Sextortion_Report.pdf ; J. Wolak & D. Finkelhor, ‘Sextortion: Findings of a survey of 1631 victims’ 2016. https://www.thorn.org/wp-content/uploads/2016/08/Sextortion_Report.pdf

[30] Herring 2011, p. 301.

[31] See for instance: “We’ve all masturbated to you or laughed at you, and it’s done. It can’t get any worse.” In C. Dodero, ‘Hunter Moore makes a living screwing you’, The Village Voice, 4 April 2012; D.J. Ley, ‘Why Men Post Revenge Porn Pictures’, Psychology Today 17 March 2017; “In de chatkamer worden regelmatig foto’s van meisjes geplaatst met de vraag of iemand ook naaktfoto’s of video’s van hen heeft.” In: D. Verlaan, ‘Naaktfoto’s honderden meisjes gedeeld in groot wraakpornonetwerk’, RTL Nieuws 12 april 2018.

[32] Herring 2011, p. 303.

[33] The 2014 ‘Fappening’ left dozens of celebrities victimised, whilst the public looked at the images without hesitation, see for instance: S. Marcus, ‘The Media Has Been Very Hypocritical About The Celebrity Nude Photo Hack, But It’s Trying To Change’, Huffington Post 8 September 2014; or the Dutch fascination with private images of Patricia Paaij: “In de video was te zien hoe Paay seksuele handelingen verricht met een man. Het filmpje werd gepubliceerd door website GeenStijl en daarna massaal gedeeld op sociale media.” In: ‘GeenStijl vervolgd om seksvideo Patricia Paay’, NOS 22 February 2017.

[34] I.W. Opstelten, Antwoorden Kamervragen over het strafbaar stellen van wraakporno aan de Voorzitter van de Tweede Kamer der Staten-Generaal 19 december 2014 Aanhangsel Handelingen II 2014/15, 933; ‘Naar een veiliger samenleving; Brief regering; Reactie op de uitzending van RTL Nieuws van 14 april 2015 over “wraakporno” en de mogelijke strafbaarstelling daarvan in het Verenigd Koninkrijk’, 12 juni 2015, Kamerstukken II 2014/15, 28684, 443.

[35] A quarter of men between the ages 18-24 and a fifth of women between the ages 18-24 report sending sexual images of themselves to others. The older people get, the less likely they are to do this: in the age category 25-39 men 15% of men and 17% of women report sending images and in the age category 40-59 10% of men and 7% of women send sexual images of themselves to others. See: H. de Graaf & C. Wijsen, Monitor seksuele gezondheid in Nederland (2017), Utrecht: Rutgers 2017, p. 33. In this same report (p. 39) it is noted that even though people send naked images of themselves to others, they consider it to be someone’s own fault when they fall victim to image-based sexual abuse, showing the need for a change in perception regarding responsibility: if you participate and think it is normal to do so, but still victim-blame victims of image-based sexual abuse, you effectively state that you should not do what you are doing.

[36] Draft bill art. 139h Sr. Kamerstukken II 2018/19, 35080, 2: ‘1. Met gevangenisstraf van ten hoogste een jaar of geldboete van de vierde categorie wordt gestraft: a. hij die opzettelijk en wederrechtelijk van een persoon een afbeelding van seksuele aard vervaardigt; b. hij die de beschikking heeft over een afbeelding als bedoeld onder a of deze openbaar maakt terwijl hij weet of redelijkerwijs moet vermoeden dat deze door of als gevolg van een onder a strafbaar gestelde handeling is verkregen.’

[37] See §4.2.

[38] Draft bill art. 139h Sr. Kamerstukken II 2018/19, 35080, 2: ‘2. Met gevangenisstraf van ten hoogste twee jaren of geldboete van de vierde categorie wordt gestraft hij die van een persoon een afbeelding van seksuele aard openbaar maakt met het oogmerk van benadeling van die persoon.’

[39] Criminal Justice and Courts Acts 2015, § 33.

[40] Kamerstukken II 2018/19, 35080, 3 (MvT).

[41] Dutch liberal party.

[42] ‘De leden van de VVD-fractie vragen naar de concrete meerwaarde van de zelfstandige strafbaarstelling van misbruik van seksueel beeldmateriaal.’ Kamerstukken II 2018/19, 35080, 7, p. 7.

[43] Although in Austria even secretly filming is not currently criminalised: ‘SPÖ fordert Strafen für heimlich aufgenommene Nacktvideos’, Der Standard 7 March 2019.

[44] Kamerstukken II 2018/19, 35080, 3, p. 3 (MvT).

[45] Kamerstukken II 2018/19, 35080, 3, p. 4 (MvT).

[46] (Internet)consultatieversie, Wijziging van onder meer het Wetboek van Strafrecht in verband met de herwaardering van de strafbaarstelling van enkele actuele delictsvormen (herwaardering strafbaarstelling actuele delictsvormen), art. 139h lid 2.

[47] Kamerstukken II 2018/19, 35080, 4, p. 3.

[48] Kamerstukken II 2018/19, 35080, 3, p. 22.

[49] UK Sexual Offences Act 2013, s. 78.

[50] Brief Ministerie van Justitie en Veiligheid, Advies wetsvoorstel herwaardering strafbaarstelling actuele delictsvormen 12 June 2018, WBOM/1.7836, p. 2.

[51] See: www.endnonconsensualporn.com.

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[1] Zie bijvoorbeeld: Chantal uit Werkendam, Dader [on]bekend, Kortenhoef: Splint Media B.V. 2018.

[2] Zie bijvoorbeeld: I.W. Opstelten, Antwoorden Kamervragen over het strafbaar stellen van wraakporno aan de Voorzitter van de Tweede Kamer der Staten-Generaal 19 december 2014 Kamerstukken II 2014/15, ah-tk-20142015-933; “Naar een veiliger samenleving; Brief regering; Reactie op de uitzending van RTL Nieuws van 14 april 2015 over ‘wraakporno’ en de mogelijke strafbaarstelling daarvan in het Verenigd Koninkrijk” 12 juni 2015, Kamerstukken II 2014/15, 28684, 443.

[3] Hoge Raad, 23 mei 1921, NJ 1921/564.

[4] HR 8 mei 2012, ECLI:NL:HR:2012:BW5000, r.o. 2.3.

[5] “Naar een veiliger samenleving; Brief regering; Reactie op de uitzending van RTL Nieuws van 14 april 2015 over ‘wraakporno’ en de mogelijke strafbaarstelling daarvan in het Verenigd Koninkrijk” 12 juni 2015, Kamerstukken II 2014/15, 28684, 443.

[6] ‘Revenge porn victims often blamed, says helpline’, BBC, 28 december 2015.

[7] Onvrijwillige pornografie is onder meer strafbaar gesteld door een verbod op stiekem filmen in bijvoorbeeld kleedkamers in Duitsland, Frankrijk, het Verenigd Koninkrijk, Nieuw Zeeland en verschillende staten in de Verenigde Staten.

[8] Hanneke de Graaf en Ciel Wijsen (ed.), Monitor seksuele gezondheid in Nederland 2017, Rutgers, p. 2.

[9] Emma Holten, “Someone stole naked pictures of me. This is what I did about it – Video,” The Guardian, 21 januari 2015.

[10] https://www.youtube.com/watch?v=pGWggWQM4jY

[11] “Kinderpornografie blijft slachtoffers achtervolgen”, Nationaal Rapporteur Mensenhandel, 29 september 2017.

[12] https://www.cnet.com/news/revenge-porn-youporn-reporting-tool/

[13] (Internet)consultatieversie, Wijziging van onder meer het Wetboek van Strafrecht in verband met de herwaardering van de strafbaarstelling van enkele actuele delictsvormen (herwaardering strafbaarstelling actuele delictsvormen), art. 139h lid 2.

[14] Rebecca Campbell, “The Psychological Impact of Rape Victims’ Experiences With the Legal, Medical, and Mental Health Systems,” American Psychologist, (2008)., p. 703.

[15] Dmitry Khodyakov, “Trust as a Process: A Three-Dimensional Approach,” Sociology 41, no. 1 (2007)., p. 121.

[16] John Eekelaar, Family Law and Personal Life (Oxford: Oxford University Press, 2006)., p. 4-47.

[17] Jonathan Herring, “The Meaning of Domestic Violence: Yemshaw v London Borough of

Hounslow [2011] UKSC 3,” Journal of Social Welfare and Family Law 33, no. 3 (2011)., p. 302.

[18] Ibid.

[19] Ibid.

[20] Ibid.,p. 301.

[21] Zie bijvoorbeeld: M.C. Barnum, “IT HAPPENED TO ME: I Was The Victim Of Revenge

Porn And Forced To Resign From My Job,” XOJane, 7 October 2015.; Lou Chibbaro Jr., “Gay teacher’s sex video stolen, posted to school site,” Washington Blade, 10 February 2016.; Cyber Civil Rights Initiative, “Victims’ Stories” https://www.cybercivilrights.org/share-your-story/

[22] Zie: www.timetoendrevengeporn.comv

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