Lecture 3: Substantive Law (2)
Image-based sexual abuse McGlynn & Rackley
Abstract
Advances in technology have transformed and expanded the ways in which sexual violence
can be perpetrated. One new manifestation of such violence is the non-consensual creation
and/or distribution of private sexual images: what we conceptualize as ‘image-based sexual
abuse’. This article delineates the scope of this new concept and identifies the individual and
collective harms it engenders. We argue that the individual harms of physical and mental
illness, together with the loss of dignity, privacy and sexual autonomy, combine to constitute
a form of cultural harm that impacts directly on individual, as well as on society as a whole.
While recognizing the limits of law, we conclude by considering the options for redress and
the role of law, seeking to justify the deployment of the expressive and coercive powers of
criminal and civil law as a means of encouraging cultural change.
Image-based sexual abuse: delineating the concept
- Image-based sexual abuse: non-consensual creation and/or distribution of private
sexual images.
o Sexual abuse conveys the significant harms that may occur and reflects the
experiences of victim-survivors.
o Non-consensual distribution of private sexual images: revenge-porn
o Non-consensual creation and distribution of private sexual images:
voyeurism, sextortion, sexualized photoshopping
o Defining private sexual images:
Private: the intentions and expectations of the person represented in
the image.
Privacy in public: sexual images taken in public are also
private, unless the person depicted intends or agrees to their
publication, or they have acted in some way to relinquish
control over who can view the image.
Sexual images: a form of abuse through the exploitation of a victim-
survivor’s sexual identity, and harm to their sexual dignity and
autonomy. A sexual context is one which has the potential to be
exploited in this way and for exacting this form of harm.
o Scope of consent
The consensual taking and sharing of sexual images is an important
aspect of sexual expression.
Agreement by choice, where there is freedom and capacity to make
that choice.
An individual’s awareness of a picture being taken, or even taking it
oneself, is not determinative of consent.
The harms of image-based sexual abuse
- Harms suffered by victim-survivors are deeply gendered:
o Predominantly women are victim-survivors
o The sexualized and misogynistic form and manner in which the images are
manifested.
- Harm to individuals: violations of mental and physical integrity, dignity, privacy and
sexual expression
o Violating personal and bodily integrity
Direct harm to the physical and mental well-being of the individual
depicted in the image. Distribution is often accompanied with personal
information of the individual.
, o Infringing dignity and privacy
Other harms include the adverse impact on an individual’s
fundamental rights to dignity and privacy, as well as their freedom of
sexual expression and autonomy.
Dignity: all are deserving of respectful treatment, to be treated
as ends and not means. Dishonored through a failure to show
respect, through the treatment of others as less than creatures
of inherent worth.
Privacy: privacy right stems not from the intimacy or secrecy of
the image or its subject but rather from a breach of the
expectation of trust and confidentiality of the victim-survivor.
Non-consensual creation of private sexual images: it is vital to
challenge any tendency towards a public/private split in privacy
protection whereby acts done in the private realm are more
easily or immediately protected.
o Inhibiting sexual autonomy and expression
An individual’s confidence in the security of their privacy and dignity
forms the conceptual foundation for the protection and enjoyment of
their right to sexual autonomy and expression.
We must resist a simplistic victimization/empowerment dualism when
considering the production of sexual media.
- From individual to societal impacts: the cultural harm of image-based sexual abuse
o The instantiation of a culture that accepts the creation and/or distribution of
private sexual images without consent as a harmless prank, where the vast
majority of perpetrators are rarely reprimanded while victim-survivors continue
to be frequently chastised as hypersensitive or humorless.
Redress and the role of law
- Harnessing the expressive power of law
o Law can affirm and solidify existing norms as well as articulate new ones, and
play a key role in protecting our individual entitlement to be regarded as a
member of society in good standing.
o The aim of the law is to shape people’s behavior, deterring them from
committing the criminal acts or civil wrongs proscribed by law. The
prohibitions of specific acts ideally results in greater societal disapproval
thereof.
- Deploying the coercive power of law
o It is the potential deterrent and therefore educative aspect of the coercive role
of law, rather than its punitive aspect, which can encourage cultural change.
o The availability and accessibility of a range of civil law remedies is vital to
ensure that victim-survivors are able to tailor the form of their redress, but
also as a means of seeking to deter future actions.
- Criminalizing image-based sexual abuse
o Coherent criminal law as a response for providing clarity for victim-survivors,
potential perpetrators and actors in the criminal justice system.
Scope should be determined by the terms \private and sexual’,
provisions must be carefully drafted, but a reasonableness standard,
providing flexibility to deal with the unforeseeable range of actions of
determined perpetrators, should be paramount.
The law should only require the intention to create and/or distribute
private sexual images without consent, that is, there should be no
additional element of maliciousness. It should also cover threats
thereof.
Image-based sexual abuse McGlynn & Rackley
Abstract
Advances in technology have transformed and expanded the ways in which sexual violence
can be perpetrated. One new manifestation of such violence is the non-consensual creation
and/or distribution of private sexual images: what we conceptualize as ‘image-based sexual
abuse’. This article delineates the scope of this new concept and identifies the individual and
collective harms it engenders. We argue that the individual harms of physical and mental
illness, together with the loss of dignity, privacy and sexual autonomy, combine to constitute
a form of cultural harm that impacts directly on individual, as well as on society as a whole.
While recognizing the limits of law, we conclude by considering the options for redress and
the role of law, seeking to justify the deployment of the expressive and coercive powers of
criminal and civil law as a means of encouraging cultural change.
Image-based sexual abuse: delineating the concept
- Image-based sexual abuse: non-consensual creation and/or distribution of private
sexual images.
o Sexual abuse conveys the significant harms that may occur and reflects the
experiences of victim-survivors.
o Non-consensual distribution of private sexual images: revenge-porn
o Non-consensual creation and distribution of private sexual images:
voyeurism, sextortion, sexualized photoshopping
o Defining private sexual images:
Private: the intentions and expectations of the person represented in
the image.
Privacy in public: sexual images taken in public are also
private, unless the person depicted intends or agrees to their
publication, or they have acted in some way to relinquish
control over who can view the image.
Sexual images: a form of abuse through the exploitation of a victim-
survivor’s sexual identity, and harm to their sexual dignity and
autonomy. A sexual context is one which has the potential to be
exploited in this way and for exacting this form of harm.
o Scope of consent
The consensual taking and sharing of sexual images is an important
aspect of sexual expression.
Agreement by choice, where there is freedom and capacity to make
that choice.
An individual’s awareness of a picture being taken, or even taking it
oneself, is not determinative of consent.
The harms of image-based sexual abuse
- Harms suffered by victim-survivors are deeply gendered:
o Predominantly women are victim-survivors
o The sexualized and misogynistic form and manner in which the images are
manifested.
- Harm to individuals: violations of mental and physical integrity, dignity, privacy and
sexual expression
o Violating personal and bodily integrity
Direct harm to the physical and mental well-being of the individual
depicted in the image. Distribution is often accompanied with personal
information of the individual.
, o Infringing dignity and privacy
Other harms include the adverse impact on an individual’s
fundamental rights to dignity and privacy, as well as their freedom of
sexual expression and autonomy.
Dignity: all are deserving of respectful treatment, to be treated
as ends and not means. Dishonored through a failure to show
respect, through the treatment of others as less than creatures
of inherent worth.
Privacy: privacy right stems not from the intimacy or secrecy of
the image or its subject but rather from a breach of the
expectation of trust and confidentiality of the victim-survivor.
Non-consensual creation of private sexual images: it is vital to
challenge any tendency towards a public/private split in privacy
protection whereby acts done in the private realm are more
easily or immediately protected.
o Inhibiting sexual autonomy and expression
An individual’s confidence in the security of their privacy and dignity
forms the conceptual foundation for the protection and enjoyment of
their right to sexual autonomy and expression.
We must resist a simplistic victimization/empowerment dualism when
considering the production of sexual media.
- From individual to societal impacts: the cultural harm of image-based sexual abuse
o The instantiation of a culture that accepts the creation and/or distribution of
private sexual images without consent as a harmless prank, where the vast
majority of perpetrators are rarely reprimanded while victim-survivors continue
to be frequently chastised as hypersensitive or humorless.
Redress and the role of law
- Harnessing the expressive power of law
o Law can affirm and solidify existing norms as well as articulate new ones, and
play a key role in protecting our individual entitlement to be regarded as a
member of society in good standing.
o The aim of the law is to shape people’s behavior, deterring them from
committing the criminal acts or civil wrongs proscribed by law. The
prohibitions of specific acts ideally results in greater societal disapproval
thereof.
- Deploying the coercive power of law
o It is the potential deterrent and therefore educative aspect of the coercive role
of law, rather than its punitive aspect, which can encourage cultural change.
o The availability and accessibility of a range of civil law remedies is vital to
ensure that victim-survivors are able to tailor the form of their redress, but
also as a means of seeking to deter future actions.
- Criminalizing image-based sexual abuse
o Coherent criminal law as a response for providing clarity for victim-survivors,
potential perpetrators and actors in the criminal justice system.
Scope should be determined by the terms \private and sexual’,
provisions must be carefully drafted, but a reasonableness standard,
providing flexibility to deal with the unforeseeable range of actions of
determined perpetrators, should be paramount.
The law should only require the intention to create and/or distribute
private sexual images without consent, that is, there should be no
additional element of maliciousness. It should also cover threats
thereof.
