When naming is shaming

A recent poll found that three-quarters of people believe victims of ‘revenge pornography’ should have the same right to anonymity as victims of sexual offences. But should revenge pornography be recast as a sexual offence to achieve this aim?

Victims of most sexual offences and human trafficking currently benefit from an automatic bar on the publication of any information likely to lead to their identification. The rationale for anonymity was set out in 1975 by the Heilbron Committee, which advocated it as a protection from the distressing and harmful consequences rape complainants may suffer should the offence be publicised. They also pointed to the deterrent effect publicity would have on the reporting of offences.

This bar on naming victims was not universally welcomed and anonymity in our (otherwise largely transparent) criminal justice system continues to be a thorny issue. Periodic calls for anonymity to be extended to the accused are largely opposed as a barrier to justice.

For revenge pornography complainants, the arguments in favour of anonymity are more clear cut. The concerns of the Heilbron Committee have not only proven correct here but have been magnified with the advent of the internet and social media. The publication of a complainant’s name may only compound a painful invasion into privacy that has already been suffered by the disclosure of any intimate sexual images. Moreover, there is currently no mechanism for the effective removal of these images when posted online, and drawing attention to them by publishing the names of complainants redoubles the humiliation.  

Current calls for complainant anonymity seek to tackle these high attrition rates by recasting the offence as a sexual one. There is certainly room in our legal arsenal for image-based sexual offences. Voyeurism can be committed by capturing non-consensual private images, and indecent images of children are a now well-recognised form of child sexual abuse.

To push for anonymity by recasting the revenge porn offence as sexual seems, on the face of it, logical. The sexual – and thus pornographic – element of the offence comes from the nature of the image. This must either be an image of exposed genitalia or of a person engaged in sexual behaviour or posing in a provocative way that is not of a kind ordinarily seen in public.

Dreadful as the disclosure may be, the intent required is not inherently sexual, although the image itself may be. The offence, as enacted, requires the disclosure is made with the intention of causing distress. While distress may, of course, embrace an intent to cause sexual shame, something the CPS guidelines recognise by broadening this out to include disclosures intending to cause embarrassment or humiliation, it does appear to exclude disclosures made solely for amusement or sexual gratification. In fact, the offence makes clear that a person ‘is not to be taken to have disclosed a photograph or film with the intention of causing distress merely because that was a natural and probable consequence of the disclosure’.  

The offence is primarily concerned with the preservation of privacy, not sexual harm. While we do have sexual offences that do not require a sexual intention, exposure for example, to bring revenge pornography into this category would bring its own problems. Without amending the offence to make the mens rea explicitly sexual there is a danger spiteful individuals and even children would be labelled sexual offenders for maliciously sharing such images.

Judges already have a discretionary power to withhold names and the media have been, to date, remarkably discreet. Clearly this offers insufficient reassurance to complainants, but the response should not be to make revenge pornography a sexual offence but to mandate complainant anonymity. It is a great shame that the amendment to the Policing and Crime Bill tabled in June that sought to introduce automatic anonymity was rebuffed.   

Dr Samantha Pegg is senior lecturer at Nottingham Law School, part of Nottingham Trent University