Rikke Amundsen argues that the law supposedly created to protect victims is weighted in favour of perpetrators

2671822805_9dc96eceb1_zOn April 15th 2015, ‘revenge porn’ was criminalised in England and Wales under sections 33, 34, and 35 of the 2015 Criminal Justice and Courts Act (CJC Act). The law is, in theory, a welcome and necessary response to a form of harassment that poses a significant threat to gender equality. I say in theory, however, as a close inspection of the law with a focus on precisely gender equality reveals the extent to which sections included to protect the free speech of a faction of the (usually male) distributors of revenge porn, violate the interests of the (usually female) victims.

The Act requires that a person responsible for disseminating the private sexual image or film has an “intention to cause distress” in doing so. Moreover, where proving “intention to cause distress”, it’s not enough to assume that “distress” is an obvious and expected result of the perpetrator’s actions. Rather, it has to be proved that they fully intended to cause distress.

Arguably, these sections have been included to protect the free speech of those responsible for distributing revenge porn without a malicious intention in doing so. Certainly, a person can distribute revenge porn, for instance, for a laugh, to show a partner off to his friends, by accident, or simply because he wants to make a profit in selling the material to a pornography website. Nevertheless, the reality is that revenge porn causes harm regardless of the intentions of the person responsible for its dissemination. The law criminalising revenge porn thus creates a conflict between the interests of a specific faction of those responsible for distributing revenge porn, and their victims.

Unless the policymakers are willing to waive the protection of people’s right to disseminate revenge porn material, even if without malicious intentions, revenge porn will be difficult – if not impossible – to prevent or strike down. As it stands, the law fails to capture the objectification of women’s bodies for the mere purpose of entertainment and mockery. This is problematic, because it is this form of everyday sexism in the domain of speech about sex that constitutes the very core of revenge porn. Certainly, it is only when the law captures how revenge porn feeds off, and into, gender inequality that it can fully capture and address that which informs the relationship between the victim, offender and audience of revenge porn.

This is not to say that we will not be able to use the law to charge and prosecute anyone. Since the law came into force, people have already been both charged and prosecuted. Furthermore, the increased social and political focus on revenge porn has encouraged Internet service providers and social media sites like Google and Reddit to introduce stricter regulations to prevent revenge porn from appearing in their domains. Whilst this recent development is a very positive movement in the right direction, it is still not clear what material these companies will actually be removing from their sites without a concise legal definition of revenge porn to guide them.

According to the revenge porn legislation, proof of an intention to cause distress is necessary for the material to constitute revenge porn. Unless such proof can be easily established, there are no concise further definitions for the sites to go by in determining what material to remove. As we are already aware, sex sells. It is therefore unlikely that any sexual material will be removed from the Internet unless it is absolutely evident that the material was disseminated non-consensually. Whilst the law is not aimed at the Internet service providers and social media sites, it is also futile as a means of providing any form of legal guidelines to those responsible for removing revenge porn material from their sites.

The focus on malicious intentions renders the revenge porn law a flawed piece of legislation. In failing to capture the everyday sexism that the distribution of revenge porn, even without malicious intention, represents, the law also fails to address the gender inequality located at the very core of this particular form of cyber exploitation. In terms of responding to, and preventing, the harms to gender equality that occur in cyberspace at the hands of revenge pornographers, the Act is a futile legal tool.

Rikke Amundsen is a PhD candidate at the University of Cambridge Centre for Gender Studies.

The image used depicts the “Control” key on a computer keyboard and is used under the Creative Commons License.