Project Description

RESEARCH PROPOSAL

Towards the criminalisation of non-consensual and revenge pornography

Introduction

Revenge pornography[1] is a form of non-consensual pornography that has gained more attention over the past few years. In my master’s thesis I developed the following definition: revenge pornography is the non-consensual publication of private, intimate and sexual images or films that are made with consent of the depicted individual(s) but published without their consent by the person to whom they were entrusted. In 2014, hundreds of celebrities fell victim to non-consensual pornography (in that case erroneously thought to be revenge pornography).[2] The issue of revenge pornography and other forms of non-consensual pornography is not limited to public persons; private persons have also been victims of it, to the extent of committing suicide or being expelled from their community.[3] The impact of these publications may be devastating and the type of injustice acted through them often remains beyond the scope of current criminal legislation and beyond an adequate understanding by legislators. This proposal focuses on the criminalisation of four types of non-consensual pornography set out in my master’s thesis. Revenge pornography is often confused with other types of non-consensual pornography, which makes criminalisation more difficult.[4] Adequate legislation demands clarity of terms and concepts, so that laws and measures can be formulated correctly and in proportion to the wrongs inflicted on the victims.

Although efforts of legislators indicate a wish to criminalise revenge pornography, the laws put in place to do so often fall short.[5] This may be due to a misunderstanding of the topic, as was the case in the Netherlands in 2014: revenge pornography legislation was rejected as the Dutch government considered the conduct already sufficiently criminalised;[6] or it may be due to the usage of inexact definitions, as is the case in France, which developed a law with the intention to criminalise revenge pornography, but ended up with a law that does not criminalise the unauthorised publication of (visual) documents that have been made with consent within the private domain.[7]

More and more states are exploring legal arguments to criminalise revenge pornography: The Netherlands announced its intention to criminalise revenge pornography in October 2017, thus departing from its previous stance. Other countries, such as Australia, are also preparing legislation to criminalise revenge pornography. Yet it seems that the existing laws intended to regulate revenge pornography and non-consensual pornography, do not yet grasp all the wrongs of non-consensual pornography.

Proposal

The proposed research would seek to clarify the difficulties faced by legislators. I wrote two master’s theses on the topic of revenge pornography, one in Law (2015) and one in Philosophy (2017). My two master’s thesis projects have inspired me to seek a more profound research/treatment of the subject in order to elaborate the theoretical and practical groundwork of a generally applicable legislation that would do justice to the complexity of this relatively new phenomenon. This is what the present project aims at and what makes the proposed research highly necessary.

In my first master’s thesis (2015) I analysed Dutch laws with regard to their applicability to the subject. I found that the prevailing jurisdiction treated victims of revenge pornography as victims of slander and openly blamed them for their own actions in the sense that images that do not exist cannot be made public, therefore the images should not have been agreed to and thus come into existence.[8] I also found that the term ‘revenge pornography’ was not clearly defined, and was used to denote a variety of phenomena.

My second master’s thesis (2017) on this topic – supervised by professor Herring – sought to clarify the concepts of revenge pornography and started from the theoretical framework set out by professor Herring on the wrongs of domestic abuse.[9] This framework was particularly helpful in specifying various confusions around the non-consensual publication of images. I distinguished four kinds of non-consensual pornography. The first is revenge pornography. The others are what I called uninvolved revenge pornography, non-voluntary pornography and edited portrayals. I found that the four kinds of non-consensual pornography are different with regard to the ways they came into existence, although their final results may be visually similar. One of the conclusions drawn from this master’s research was that further research would be required to investigate the differences between these separate concepts more fully, so as to support the development of effective legislation and application of laws criminalising non-consensual pornography.

Research questions

The research proposed here would aim at developing a framework for legislators, without limiting it to a single jurisdiction. This framework would identify the elements that should be addressed by a law, the purpose of which it is to criminalise and distinguish effectively the various types of non-consensual pornography.

The main research question therefore is:

  • What elements should be present in laws criminalising the various types of non-consensual pornography?

Auxiliary questions that would have to be addressed are:

  • What are the wrongs of non-consensual pornography?
  • What are relevant differences between the separate types of non-consensual pornography?
  • What withholds laws currently in existence from effectively criminalising non-consensual pornography?
  • What principles ought the law to be looking at?
  • What arguments should be observed by legislators?

The envisaged research will depart from professor Herring’s theory on domestic abuse. The research will take into account and will study currently existing laws, as well as laws currently being developed in the Netherlands and Australia (and elsewhere, when available). It will also look at jurisprudence and the documented considerations of judges treating cases of non-consensual pornography in order to categorise the elements considered relevant to the legal system by the judges, as well as those elements not taken into account within the various legal systems.

Selection of relevant readings

[1].     D. Keats Citron; M.A. Franks, “Criminalizing Revenge Porn,” Wake Forest Law Review 49, (2014).

[2].     See for instance: P. Farrel, “Nude photos of Jennifer Lawrence and others posted online by alleged hacker,” The Guardian, 1 September 2014.

[3].     See for instance: “Italy grapples with suicide of woman taunted over online sex video,” The Guardian, 16 September 2016.

[4].     C. McGlynn; E. Rackley; R. Houghton, “Beyond ‘Revenge Porn’: The Continuum of Image-Based Sexual Abuse”, Feminist Legal Studies 25, no. 1 (2017).

[5].     A. Powell; N. Henry, Sexual Violence in a Digital Age, (London: Palgrave Macmillan, 2017).

[6].     I.W. Opstelten, Antwoorden Kamervragen over het strafbaar stellen van wraakporno aan de Voorzitter van de Tweede Kamer der Staten-Generaal, 19 december 2014.

[7].     French Criminal Code, Art 226-1: “En fixant, enregistrant ou transmettant, sans le consentement de celle-ci, l’image d’une personne se trouvant dans un lieu privé”.

[8].     J. Sweeney, “Gendered Violence and Victim-Blaming: The Law’s Troubling Response to Cyber-Harassment and Revenge Pornography”, International Journal of Technoethics 3, no. 1 (2017).

[9].     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, no. 3 (2011);

M.M. Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (Oxford: Oxford University Press, 2009);

  1. Khodyakov, “Trust as a Process: A Three-Dimensional Approach,” Sociology 41, no. 1 (2007);
  2. Eekelaar, Family Law and Personal Life (Oxford: Oxford University Press, 2006).
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