‘Revenge porn’ is more than a privacy violation

Canadian legislation criminalizing the non-consensual distribution of “intimate images” risks putting more scrutiny on the victims than the perpetrators, according to a recent study from the Peter A. Allard School of Law at UBC.

Bill C-13, and the first six cases prosecuted in Canada after it became law in 2015, treat the non-consensual distribution of intimate images primarily as a privacy violation rather than an act of gender-based violence, argues PhD student Moira Aikenhead. The cases have involved male perpetrators seeking to dominate and control female victims — motivations similar to those found in cases of domestic violence — yet the wording and interpretation of the law emphasizes privacy, and whether victims have a right to expect it.

We spoke with Aikenhead about her paper, published last month in the Canadian Journal of Women and the Law.

What is it about Bill C-13’s wording that got you interested in studying these cases?

What interested me is the actual definition of what counts as an “intimate image.” For something to be considered an intimate image under the law, there has to be a reasonable expectation of privacy at the time the photo was taken, and at the time it was distributed. I thought this focus on an expectation of privacy was odd, because what circumstances can you envision where a person posts intimate images of another person online, without their consent, but hasn’t breached their privacy? I have a hard time understanding what the focus on privacy adds to the analysis.

‘Victim-blaming’ has become a key part of defence arguments in sexual assault cases. Does Bill C-13 leave the door open for that?

The legislation frames the crime as one based on lack of consent and breach of privacy. The consent element is similar to sexual assault — if someone consents to sex it’s not a crime, and if someone consents to having intimate images distributed, then that’s not a crime. While this ostensibly gives women control over their bodies as well as images of their bodies, too much focus on consent means there’s going to be scrutiny of the victim’s behaviour, which may include blaming her for having allowed the images to be taken in the first place, or not having been more careful about who she shared them with.

Where does the scrutiny belong?

In my view, the scrutiny belongs on the perpetrator: the person who knowingly and often maliciously ignored the victim’s wishes by distributing the images, and his intention for doing so. There’s very limited case law so far, but most of these cases show the typical “revenge pornography” pattern of a man — in the context of a relationship that has ended or looks like it will end — posting images online or threatening to do so, in order to control and hurt his former partner. It’s meant to be an act of gender-based violence and intimidation, so it’s important to frame the crime as that type of crime rather than simply an invasion of privacy.

You use the term “violence,” which many people equate only with physical force. Why do you use that term?

Feminism generally takes a broader view of violence, going beyond only physical violence. It’s all the elements of coercion and harm that limit women’s ability to participate fully in society. So I would consider this to be a violent crime. While women face high rates of physical and sexual violence, the understanding of violence should also include coercion and intimidation in the broader social context of gender discrimination. This better captures the ways women and women’s equality rights are harmed through crimes such as sexual assault, criminal harassment, and the non-consensual distribution of intimate images. The cases so far depict a crime consistent with other forms of intimate partner violence in terms of its motivations, its impact on women’s lives, and the fear it can cause.