Julian Huppert MP, a Liberal Democrat Member of Parliament, has called for a new law to outlaw “revenge porn”. Now for those who don’t know, revenge porn is the name given to the publishing online of intimate photographs of an ex-partner for the purposes of taking revenge for some real or imagined offence by the “victim”.
Mr Huppert correctly points out that “[l]ives can be ruined, personal relationships destroyed and jobs lost”. That’s terrible, but it raises a couple of important questions: a) does the harm necessitate yet another criminal offence? And b) is the criminal law an appropriate tool for dealing with this type of behaviour, i.e. should “revenge porn” be a crime?
Over the past 20-years or so, it has become very trendy for Governments in the UK to create new criminal offences – I believe that by the end of the last Labour government they had created more new crimes then every other government before them put together! As a student barrister, I was taught that going to law, i.e. suing somebody, should be a last resort. Equally, creating a new crime should be a last resort for a government.
Let’s have a quick think about what “revenge porn” actually is. These are photographs of people, usually but not always women, in intimate situations – they may be straightforward nudes or photographs of the individual in flagranti. They are images taken with the person’s permission; if they were not then taking the photographs would already be a crime under section 67(3) of the Sexual Offences Act 2003. They are photographs of adults; again, such photographs of people under 18-years of age are already criminal.
Taking a common sense approach, we all know that if we allow somebody else to have an intimate photograph of ourselves then we are taking a risk that the image will appear online or will be seen by somebody else – whether deliberately, accidentally or as a result of the device they are stored on being stolen. To my mind, criminal law is very much a bandage for covering a wound. It is not great at preventing crime happening… if you don’t believe me then take a look at how many crimes happen every year, all committed by people who have not been put off by the illegality of their actions!
Prevention is far better than a cure. It occurs to me that children should be taught to think their actions through and consider what the consequences of an action might be. Thus, when they reach their late teens (and even far greater ages – anybody remember Leslie Grantham?) they might consider the possible consequences of sharing these types of photographs and not do it!
In addition, we might try teaching children that when somebody shows a great deal of trust in us we should not break that trust.
One of the things I encounter regularly and which I see as a major problem in our society is the abdication of responsibility. I represented somebody at trial once who took a taxi to court each morning. He was on benefits and eventually ran out of funds for his taxi. Rather than accept that he should have just taken a bus the short distance from home to court he blamed the court for not paying for his transport! When I did legal aid work, I regularly came across parents who blamed teachers, police, courts and anybody but themselves for their child’s inability to accept authority. Duty solicitors will recognise the type who shows up at court for their trial having done nothing to prepare their case or get a solicitor and expect to rely on the duty only to become angry when they find the duty won’t help them.
Politicians add to the sense that everything wrong in your life is somebody else’s fault with constant calls to criminalise every type of reprehensible conduct. Ultimately, “revenge porn” photographs are pictures that an adult has agreed to allow somebody to take or keep. Quite frankly, if you are old enough to vote then you are old enough to know that when you take a picture of your tits, balls or whatever there is a chance it will end up on the internet and old enough to make that decision.
Turning back to the two questions I originally posed myself: does the harm necessitate a new criminal offence? I answer this in the negative. There is potential for harm to the person in the photograph but the harm is obvious and easily foreseeable at the time the photograph is taken. The people we are talking about are adults with the power to join the army, marry and vote at elections, if they cannot weigh up the risks and benefits then they shouldn’t be allowed to leave their house in the morning!
The second question was: is the criminal law an appropriate tool for dealing with this type of behaviour? Criminal law is a sledgehammer that should be used in appropriate circumstances. It is not good at shaping behaviour. Would a criminal offence stop the photographs circulating online? Not a chance. Would it stop an angry ex-boyfriend who feels he’s been wronged posting a photograph online? No, it doesn’t stop people committing other crimes so why would it stop this?
We each have decisions to make in life. We each know the risks and benefits of each decision we take. Each one of use must accept that we are responsible for those decisions and their foreseeable consequences.