Opinion: Put revenge pornographers on the Sex Offenders Register

Smartphone bar.Facebook has just been served with its first revenge porn lawsuit. I can’t comment on the particulars of the case in question but it does appear that revenge porn is an issue the law has yet to catch up with. In my opinion, the law should be changed to allow those convicted of distributing revenge porn to be put on the Sex Offenders Register. This requires further clarification of the distinction between legal and illegal pornography.

Once explicit material is published it becomes pornography. If the individuals in the films or photographs do not consent to having the material published, even if he or she consented for the material to be made for another purpose, then it should be classified as illegal pornography. Illegal pornography should also include incidents where material has been accessed through devices without the explicit consent of the individual who owns the device and the participants in the explicit material.

To those of a more conservative leaning all pornography is of the same ilk. These individuals must not be allowed to frame the debate in such a way. Revenge porn is by definition a form of pornography that lacks an element of consent. It is a very different thing from pornography that has been legally and consensually made. Until revenge porn is illegal it continues to demean the status of consenting pornographic performers.

Unless pornographic performers give their explicit consent for the material to be made and distributed then it should not be legal. In addition to the issue of consent, the mens rea behind revenge porn is to cause harm. There has been too much debate over which current laws apply to revenge porn but as someone who has followed this issue the only conclusion I can draw is new laws should be made to deal with a new crime. Deliberately using explicit material to harm another individual without their consent should be a sexual offence.

* The author is known to the Liberal Democrat Voice team and is writing under a pseuodonym.

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  • This idea creates a mechanism by which angry ex’s can use material consensually filmed in order to get their ex on the sex offenders register. I suspect the number of angry ex’s that would behave in this way would be at least equal to the number of people that would use the material as revenge porn. People seem to be thinking the concept of revenge is monodimensional and will be easy to pin down, but most of these suggestions can be used by an aggressor against an innocent party and may actually encourage the secret filming of more private sex acts for the purpose of control.

    You’re designing further mechanisms of abuse that can’t be safeguarded against – how would you feel if you slept with a guy and 4 months later you’re on the sex offenders register because he claims you filmed and uploaded the act? At this point it becomes apparent that your odds of justice would entirely hinge upon how much money you’d have for legal representation, so not only do these ideas empower the aggressor, they also make it obvious that if you’re rich you can sexually abuse and control poorer people, especially ones that can’t afford barristers – you can turn them into sex offenders at will.

  • I think this is a very sensible and rational proposal.

  • Little Jackie Paper 26th Aug '14 - 12:20pm

    This sounds to me like a serious definition-inflation. And that’s always a bad idea.

  • >Obviously, it would have to be proven in a court of law. A claim would not be sufficient.

    Indeed, I’ve had a friend in a situation similar to what we’re describing recently and I can assure you, the party with the deepest pockets usually wins (there’s pretty much no legal aid now). With a top barrister, some secret filming and uploading on their machine (some proof?) and your proposal we could turn pretty much anyone into a registered sex offender!

    You’d be requiring the same burden-of-proof for the person you’re initially trying to protect, and that alone will make this legislation pretty much unusable unless the perpetrator was particularly stupid (they uploaded the material via their home internet connection whilst in a situation the claimant can prove means there could be no other person responsible for the upload). You’d also need to require the ISP to carry all the logs of uploads, so you’d necessitate “Snoopers Charter” powers in order to make any proposal of this type possible.

    I think you’ve created a self-stultifying argument – this mechanism could be used in anger as part of someone’s abuse, you’ve described a way to make victims into sex offenders and make money the determinant factor as regards outcomes. Good news for rich men that want to abuse poor women, terrible for everyone else.

  • Eddie Sammon 26th Aug '14 - 1:39pm

    I’ve never understood the backlash against this idea. Of course “revenge porn” should be illegal. The issue is not publishing photos of people without their consent, it is the explicit violation of privacy that comes with publishing deeply private material without consent. The law can be worded to protect against this.

    After my strong support I would also like to say I have been a victim of publishing material without my consent in the past and I know of other men who have too, so I’m slightly dubious of the claim this is mainly a crime against women, but I still support action against it.

  • I agree with this article. Unfortunately, however, the situation has become a little farcical, with the powers that be unable to agree on whether revenge porn is already illegal or not. This needs to be clarified urgently. If there really are laws in place, then the message needs to get through to the police and CPS who have been failing to prosecute, so that prosecutions can commence quickly. If the existing laws are not sufficient, the government should get on with introducing new ones.

    Changing the law can only be a small part of the solution though. I worry that successful prosecutions may be very, very difficult. A determined ex-offender could easily report his phone as “stolen” (along with the 700,000+ other lost or stolen phones each year) and then claim innocence when images start appearing on the web a few weeks later.

  • Richard Dean 26th Aug '14 - 3:09pm

    The offence is not the sex, but the publication of private information. It’s a violation of privacy rather than of body.

  • Stephen Donnelly 26th Aug '14 - 7:00pm

    The sex offenders register ought to be reserved for sex offenders.

  • Andrew Suffield 26th Aug '14 - 7:08pm

    In addition to the issue of consent, the mens rea behind revenge porn is to cause harm.

    Okay, if the law actually says that – you have to prove in court that there was intent to cause harm – then I think this is acceptable and would tend to support it. I think this is an important requirement to include.

    I am opposed to laws criminalising distribution of images in general. They’re too easily abused in cases of accidental harm.

  • Andrew Suffield 26th Aug '14 - 7:14pm

    I’ve never understood the backlash against this idea.

    I’ve not really seen any backlash against it – but I’ve always been a bit wary of it, primarily because of the risk of increasing the incidence of “revenge lawsuits”, where an angry ex comes up with a way to make somebody’s life hell by dragging them through court.

    The “mens rea” test noted in my post above would seem to be a good solution.

  • Richard Dean 26th Aug '14 - 8:40pm

    What would be the purposes of this, would it achieve its aims, and could it be abused? The purposes of a sex offenders register are not to punish, but are presumably …

    (a) to deter re-offending,
    (b) to assist in preventing offenders from getting into situations where they are tempted to re-offend,
    (c) to assist in investigating new offences.

    This is presumably on the basis of a belief that a sex offender is more likely to re-offend and more difficult to identify once an offence is committed, compared to other types of offenders.

  • Eddie Sammon 26th Aug '14 - 8:46pm

    Hi Andrew, I understand, I just think the risk of wrongful prosecutions shouldn’t prevent something becoming illegal. However, as people know, I support listening to the concerns of everyone. We should never assume guilt.

  • Peter Andrews 26th Aug '14 - 8:51pm

    Totally agree with Stephen Donnelly the sex offenders register should be reserved for sex offenders not people who breach others privacy. Revenge porn is NOT a sex offence.

  • Andrew Suffield 26th Aug '14 - 9:10pm

    I just think the risk of wrongful prosecutions shouldn’t prevent something becoming illegal.

    It’s important to have good laws that are clearly defined and easy to resolve. Laws which generate a lot of ambiguity and “creative enforcement” tend to cause a lot of harm and not achieve very much, as people with legitimate cases have a hard time proving them and people with lawyers looking for a loophole find a way to exploit them. Laws need to be written in a way that makes misuse easy to identify and stop, especially criminal laws. (This is one of the more common problems with things we’ve seen proposed recently, like that wretched snooper’s charter.)

    I’d say that if criminal law cannot be written in a way that strongly discourages wrongful prosecution then you need to have a serious rethink about what that law is trying to do and why it should be a crime. For this particular one, it looks like there’s a way to make it work.

  • Peter Rothery 27th Aug '14 - 2:17am

    I accept there is a powerful argument for restricting through the criminal law the publication of sexually explicit images created consensually for private purposes within a relationship. There are potential difficulties and such a law would require careful drafting.

    However the intent behind revenge porn is not sexual, even though the material was created originally for sexual purposes. The intent which we would seek to criminalise by a revenge porn law is the publication of sexually explicit images by one party to a relationship without the consent of the other. The motivation there is revenge/control/humiliation. It is a form of domestic abuse, and not a sexual crime.

    It should not lead a perpetrator to go on the sexual offences register. Publication of sexually explicit images taken by consent within a relationship does not indicate that a person is a risk of committing a sexual assault against another person. The sexual offenders register should be confined to those people. Otherwise we risk undermining the purpose of the register which is public safety and crime prevention not a punishment in itself.

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