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More than Revenge:
Addressing the Harms of Revenge
Pornography
Report of the More than Revenge Roundtable
Hosted by Monash University, La Trobe University and RMIT University
Monday 22 February 2016
Organised by: Dr Asher Flynn, Dr Nicola Henry and Dr Anastasia Powell
Funded by: The Criminology Research Council (CRG08/16-17), a La Trobe University
Transforming Human Societies (THS) Grant and a Monash University Faculty of Arts
Seed Research Project Grant
Report written by
Dr Asher Flynn, Dr Nicola Henry and Dr Anastasia Powell
Assisted by
Rachael Burgin, Kate Burns and Madeleine Ulbrick
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This is a project supported by a grant from the Commonwealth of Australia. The views
expressed are the responsibility of the authors and are not necessarily those of the
Commonwealth.
©Monash University 2016
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1. Table of Contents
1. Table of Contents 3
2. Introduction 4
3. Challenges and Experiences of Revenge Pornography: International Perspectives 8
4. Challenges and Experiences of Revenge Pornography: Australian Perspectives 12
5. The Australian Senate Legal and Constitutional Affairs Reference Committee Inquiry
Recommendations 15
6. Conclusion 16
7. References 17
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2. Introduction
The non-consensual distribution of intimate images, also known as ‘revenge pornography’ has been
increasingly identified as a significant and serious problem, warranting substantial legislative reform and
non-legal remedies. Yet little information is available to date on these types of behaviours, or the extent of
harms caused to victims. What is clear is that this form of image-based sexual exploitation is occurring
globally, and research is needed to assist in the development of: concise laws, training for criminal justice
authorities, social workers and victim advocates, and education and prevention campaigns, in order to
respond effectively to the victims and perpetrators of these harms.
“Whatever solutions we come up with, they must deter. At the moment we
are trying to limit the damage once it has already been done. The point of
legislation is to be expressive and communicate to society that this is
something you should not do – so don’t do it. People must understand how
serious this is and that it will ruin someone’s life … Social attitudes don’t
change merely because of the law. However, the more the law explicitly
recognises that this is a social problem, the more we may address some of
the harms. It is the bigger social attitude problem that we have to fix”
(Professor Mary Anne Franks).
‘Revenge pornography’ is a media-generated term used to describe the distribution of sexually explicit or
intimate images of another person without their consent. The term is a misnomer (Franks 2015), since not
all perpetrators are motivated by feelings of revenge, and not all content constitutes or serves the purpose
of ‘pornography’. Indeed, labelling such images pornographic may be highly offensive to victims. Some
scholars have alternatively labelled the behaviour as ‘non-consensual pornography’ (Citron & Franks 2014;
Franks 2015), ‘involuntary porn’ (Burns 2015), or ‘non-consensual sexting’ (see Henry & Powell 2015a).
However these alternate terms are also problematic, in part because they tend to focus on the behaviour
of the victim (e.g. the voluntariness of the creation and/or distribution of the image) rather than on either
the abusive impacts of the behaviour or the perpetrator’s actions as a form of sexual violation and
exploitation. Consequently, we prefer to name these harmful behaviours as they are – a form of image-
based sexual exploitation (Henry, Flynn & Powell 2015). We contend that this term better captures the
diverse range of harmful behaviours increasingly reported by victims and allows for clearer distinctions
between child sexual exploitation material and adult victims of image-based sexual exploitation, which are
not distinct in current terminology. However recognising that such a term does not currently carry
significance in broader public understanding and debates on this issue, the term ‘revenge pornography’ is
used throughout this report.
“While we can deal with it solely through law, the attitudes will remain and
women will continue to suffer in a myriad ways. There is an expressive
value of the law, but what do we do for women after the fact? We need to
take the discussions a step further”
(Professor Walter DeKeseredy).
Leaving aside definitional issues, it is important to note that revenge pornography includes a wide range of
behaviours and motivations. It includes images originally produced or obtained with and without the
consent of the victim, and may involve: images obtained (consensually or otherwise) in an intimate
relationship; photographs or videos of sexual assault/s; images obtained from the use of hidden devices to
record another person; stolen images from a person’s computer or other device; and pornographic or
sexually explicit images that have been photo-shopped, showing the victim’s face.
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While these wrongs can be perpetrated by jilted lovers who distribute or threaten to distribute images to
get ‘revenge’ on their partner or ex-partner, revenge pornography can also involve acquaintances or
strangers who distribute images in order to coerce, blackmail, humiliate or embarrass another person, or
those who distribute images for sexual gratification, fun, social notoriety or financial gain.
The methods of distribution are likewise diverse, including text message or email to family, friends,
colleagues, employers and/or strangers; uploading images to pornography websites, including mainstream
pornography sites, or specifically designed revenge pornography or ‘ex-girlfriend pornography’ websites;
uploading images onto social media, thread or imageboard websites; or more traditional means of
distributing images in public places, such as through the post, letterboxes or public spaces.
While the non-consensual distribution of intimate images may cause minimal harms to some, for others
there may be profound, adverse and long-lasting impacts. For example, victims may be at risk of stalking if
their personal details are revealed next to their images online (known as ‘doxing’), or if information
underneath their images incites others to make sexual demands of them in person. Images may be shared
or distributed to children, intimate partners, family members, friends, colleagues and strangers, resulting in
feelings of shame and humiliation to both the victim and their significant others. This may substantially
affect relationships with others, including leading to a loss of employment or future employment prospects
and relationship breakdown. Images are also being distributed (or threats are being used to distribute
images) in domestic violence contexts, meaning that victims may be forced to engage in non-consensual
acts, stay in a relationship, or refrain from pursuing criminal charges or an intervention (apprehended
violence) order. This adds a significant burden on victims who may already find it difficult to leave their
violent partners (Henry & Powell 2015a). Like sexual violence generally, victims may be blamed for
engaging in certain behaviours, including those who consent to having their photograph or video taken by
another person, or those victims who took the image themselves. Victim-blaming is likely to exacerbate the
diverse social, financial and psychological impacts of this harmful behaviour.
“Women online receive certain types of abuse that men do not. It can take
the form of revenge pornography but not always. Revenge pornography is
one of the worst forms and one of the hardest to ‘undo’. There are impacts
on careers and educational opportunities and the enduring threat of
disclosure. There is a strong disciplinary effect on other women (it could
happen to you). It is quickly becoming an option for people to shut women
up; a virulent form of online misogyny. Revenge pornography is a
particularly disturbing type of conduct”
(Professor Mary Anne Franks).
Overall, victims may feel unsafe in their own homes and may suffer significant emotional distress. They may
retreat from engaging in both offline and online social activities. They may suffer anxiety, depression and a
host of other psychological problems as a result of knowing that their images are out in cyberspace and
that they have little control over who possesses these images, or whether those images are being
continually distributed thereafter (Flynn et al 2015). To add to these concerns, the effect of revenge
pornography in society more generally is to consolidate the idea that the bodies of women and girls, as well
as other sexual minorities, are available for objectification and consumption (Henry & Powell 2015b).
In Australia, there is no federal law pertaining to revenge pornography. Instead, wide-ranging offences,
including the use of a carriage service to menace, harass or cause offence, exist under the Criminal Code
Act 1995 (Cth) s 474.17. However this telecommunications offence is too broad in scope to capture the
types of harms caused when intimate or sexually explicit images are distributed or disseminated without
consent. To our knowledge, this charge has only been used once in relation to ‘revenge pornography’
related behaviours (see R v Daniel McDonald and Dylan Deblaquiere [2013] ACTSC 122). While some have
argued that the breadth of the telecommunications law is its strength (Australian Law Reform Commission
2014), and that this offence is perfectly adequate in terms of capturing a wide range of behaviours –
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including revenge pornography – others maintain that the law is not widely known or actively enforced. As
the Commonwealth Director of Public Prosecutions has warned, ‘[existing] federal laws are not properly
protecting women from so called “revenge porn” attacks by aggrieved ex-lovers’ (cited in Wilson 2016).
In addition to an absence of legislation at the federal level, most Australian state/territory jurisdictions do
not have specific revenge pornography laws. Instead, they seek to capture these behaviours under stalking,
blackmail, voyeurism or indecency laws. To date, just two Australian jurisdictions have introduced revenge
pornography offences. In 2013, South Australia made distributing an ‘invasive image’ without consent a
criminal offence. Under its Summary Offences Act 1953 (SA), perpetrators face a maximum of two years’
imprisonment if it can be proven that the distributor knew or should have known that the victim did not
consent. ‘Invasive image’ is defined as a ‘moving or still image of a person – (a) engaged in private act; or
(b) in a state of undress such that the person’s bare genital or anal region is visible’. In 2014, Victoria
introduced more specific revenge pornography legislation, making it a criminal offence to maliciously
distribute, or threaten to distribute, ‘intimate’ images without consent under the Summary Offences Act
1966 (Vic). The maximum penalty is two years’ imprisonment for distribution and 1 year imprisonment for
threat of distribution. Available data indicate that 102 offences have been recorded by Victoria Police in the
first 12 months of operation, with the majority of alleged offenders being male (86 percent) and the
majority of victims being female (84 percent). Adolescents (10 to 17 years) and young people (18 to 29) are
also overrepresented among both victims and alleged perpetrators (Data provided by Crime Statistics
Agency, Department of Justice and Regulation, State Government of Victoria, 31 March 2016). Clearly,
there is a need for further research to monitor the uptake and impacts of these and other newly introduced
offences.
Internationally, Canada, Israel, Japan, New Zealand, the Philippines, the UK and 26 states in the US have
introduced varying forms of revenge pornography legislation. In New Zealand, the Harmful Digital
Communications Act 2015 (NZ) criminalises the non-consensual distribution of sexually explicit and/or
intimate imagery (revenge pornography) and a number of extra-judicial mechanisms have been put in place
to ensure harmful content is removed. England and Wales introduced specific revenge pornography
legislation in April 2015 through the Criminal Justice and Courts Act 2015, and in October 2015, the Scottish
Government introduced the Abusive Behaviour and Sexual Harm (Scotland) Bill 2015, which proposes a
new offence of sharing private intimate material. There is however, no consistency in criminal laws across
jurisdictions and a near absence of empirical research into their effectiveness.
“In the US there is a strange obsession with sex and yet an unwillingness to
talk about it at all. Consent is easy to teach. Children can be taught about
consent as it undermines their agency. It is not hard to do and doesn’t have
to be graphic. At five, they know not to steal toys. Children understand that
you don’t force someone to do something that they don’t want to do.
Children know the difference between borrowing and stealing. Education
must start younger and must include basics – tell all boys ‘treat the girls you
like the way you treat the boys you like, and you have rights to your body
and space’. This isn’t complicated, but we refuse to have this conversation”
(Professor Mary Anne Franks).
In the absence of specific criminal legislation, the only other legal avenues for victims of revenge
pornography can be found in the civil law. Unfortunately, existing civil laws are inherently limited in
addressing revenge pornography for a number of reasons. First, these laws are ill-suited in their
applicability and language to revenge pornography. Second, there are significant costs associated with civil
litigation for ordinary Australians who may not have the financial means to bring civil action. And third, the
civil laws arguably privatise the issue of revenge pornography and do not serve as an effective deterrent
against future behaviours. Thus in the absence of legislation criminalising these wrongs, victims have
limited access to formal justice processes.
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It is these issues relating to revenge pornography that culminated in the More than Revenge: Addressing
the Harms of Revenge Pornography Roundtable – an event organised by Dr Asher Flynn (Criminology,
Monash University), Dr Nicola Henry (Crime, Justice and Legal Studies, La Trobe University) and Dr
Anastasia Powell (Justice & Legal Studies, RMIT University). The roundtable brought together leading
international scholars and legal experts to reflect on reforming responses to the serious legal and social
problem of revenge pornography in Australia, the US and the UK.
The workshop provided a forum for a discussion about the ways in which practitioners, academics,
advocates and stakeholders should or could respond to revenge pornography harms, within domestic,
local, national and international contexts. A vodcast of the roundtable is available
at: http://www.latrobe.edu.au/research/research-focus-areas/transforming-human-societies.
The event formed part of a larger project, Responding to Revenge Pornography: The Scope, Nature and
Impact of Australian Criminal Laws, funded by the Criminology Research Council (CRG08-16/17), a La Trobe
University Transforming Human Societies (THS) Grant, and a Monash University Faculty of Arts Seed
Research Project Grant. The project examines the non-consensual distribution of intimate or sexually
explicit digital images of adults and represents the first Australian empirical study to investigate the
phenomenon of revenge pornography, focusing on its nature, impacts and prevalence, as well as
implications for Australian legal responses. Using a mixed-methods approach, the research aims to: (1)
examine the scope and impacts of criminal legislation; (2) generate information on the prevalence of
revenge pornography among Australian adults; and (3) investigate the impacts of these harms on adult
victims.
“People need to know that these provisions exist, for the law to have the
expressive/communicative and symbolic function. The government needs to
commit funds to take action to eliminate all forms of harms against
women, instead of leave it to the voluntary charity organisations. The
government should commit to ending violence against women”
(Professor Clare McGlynn).
This report summarises the key themes and discussions emerging from the roundtable held at the Monash
University Law Chambers on 22 February 2016. The report follows the structure of the event, providing a
summary of themes and concerns identified in the two sessions: Challenges and Experiences of Revenge
Pornography: International Perspectives and Challenges and Experiences of Revenge Pornography:
Australian Perspectives. A brief discussion outlining the recommendations of the Australian Senate Legal
and Constitutional Affairs Reference Committee Inquiry into the phenomenon colloquially referred to as
‘revenge porn’, released on 25 February 2016, then follows. The report ends with concluding comments
and references.
The organisers would like to thank Rachael Burgin, Kate Burns and Madeleine Ulbrick who acted as
rapporteurs on the day, and have contributed to the writing of this report.
“We must try to get companies to think about this and the channels of
distribution. It was a very big deal that Google committed to removing
images, however all of it is after the fact – the victim must become aware
and must navigate the system. We don’t want to wait for someone to be
harmed before we act. Technology companies could use a pop-up to warn
users when uploading an image to ensure consent is obtained; a speed
bump to curtail impulsive behaviour. We can demand a lot more from
companies in terms of being proactive”
(Professor Mary Anne Franks).
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3. Challenges and Experiences of Revenge Pornography: International
Perspectives
Presenters
Professor Walter DeKeseredy, Anna Deane Carlson Endowed Chair of Social Sciences, Director of the
Research Centre on Violence, Professor of Sociology, West Virginia University (US)
Professor Mary Anne Franks, Legislative & Tech Policy Director and Vice-President of the Cyber Civil
Rights Initiative, Professor of Law,University of Miami (US)
Professor Clare McGlynn, Professor of Law, Durham University (UK)
Key Topics
Cultural Contexts and the Revenge Pornography Environment
Fighting Revenge Pornography in the United States
Revenge Pornography Reflections from the United Kingdom
Cultural Contexts and the Revenge Pornography Environment
Professor Walter DeKeseredy
Professor DeKeseredy identified revenge pornography as gaining significant attention in the US following
the creation of the website, Is Anyone Up? This website was founded by Hunter Moore who was recently
sentenced to two years and six months in prison, fined $2,000 and ordered to pay $145.70 restitution to
one of the victims featured on the website (this was the value that Moore paid to obtain the photos of this
particular victim). In discussing the harms of revenge pornography, Professor DeKeseredy noted the
importance of meaningful dialogue about this problem, and the need for those researching and working in
this field to continue to highlight the link between these harms and violence against women more
generally, as these types of images can be used to coerce and control women as a continuation of sexual
and physical violence. In what became a common theme of the day, Professor DeKeseredy acknowledged
that the term ‘revenge pornography’ is itself problematic. Like the terms ‘intimate partner violence’ and
‘family violence’, he argued that ‘revenge pornography’ does not recognise the gendered nature of this
form of sexual violence. In highlighting this point, Professor DeKeseredy drew on comparisons with family
violence and stressed that how we name social and legal problems like revenge pornography has
implications on how the public understand the phenomenon and how we respond to it. He explained that
moving to gender-neutral terms allows certain groups (i.e. conservative groups, men’s rights groups) to
falsely claim that women are as violent as men.
Professor DeKeseredy sought to highlight the concept of revenge pornography in its broader sociological
context – as a sociological phenomenon. He said this was a social problem that requires responses that
avoid individualising the harms experienced by victims; an outcome which has the potential to divert
attention away from broader social forces and the critique of society that must be considered in any
response or prevention of revenge pornography harms. In flagging these issues, Professor DeKeseredy
noted the importance of not ignoring the profound rape myths inherent to revenge pornography and the
related patriarchal sense of male ownership of the women in the images.
Drawing on Kurt Lewin, Professor DeKeseredy stated that there is ‘nothing so practical as good theory’, and
that there is a demonstrable need for a sound, theoretical understanding of revenge pornography to be
used as the basis to inform policy. As a starting point, Professor DeKeseredy presented his concept of male
peer support as a potential contributing explanation for males engaging in revenge pornography harms. He
defined male peer support as ‘attachments to male peers and the resources that those men provide which
encourage and legitimate women abuse’. In his model, the male peer support group encourages and
legitimises the abuse of women and one’s attachment to male peers (whether online or offline) then
influences their behaviour.
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DeKeseredy and his colleagues’ research on male peer support has been shown to be an indicator of
violence against women, whereby violence is embedded within peer groups that engage in similar
practices.
Figure 1: Male Peer Support Model (DeKeseredy & Corsianos 2016)
In the context of revenge pornography, men communicate and network online through revenge
pornography websites, which enhances attachment of male peers and perpetuates and legitimises this
problem. This subculture of violence is not restricted to any particular social group; however Professor
DeKeseredy noted that men who are most likely to be abusive are part of a wider social network that
encourages this. He explained that men’s rights’ groups have been shown to incite hatred against women
and encourage other men to engage in this conduct/practice.
Connected to male peer support, Professor DeKeseredy argued, is the idea that patriarchy and masculinity
provide a means for understanding revenge pornography, particularly in the context of ‘revenge’, on the
basis that exiting relationships are a threat to masculine status, a threat to their dominance and a threat to
the male sense of proprietary or ownership of ‘their’ women.
In another of the key themes of the day, Professor DeKeseredy acknowledged that while the law sends a
powerful message to the community, there is a need for a comprehensive community based model to deal
with violence against women and revenge pornography specifically. As such, he argued that the starting
point for looking at revenge pornography should not be purely through a legalistic approach, but rather
through a broader sociological lens that supports a comprehensive coordinated community based model
(police, social workers, teachers, women’s advocates, sexual assault support workers), that targets the
various aspects of society that contribute to this problem and a culture that permits the occurrence of
revenge pornography harms.
Fighting Revenge Pornography in the United States
Professor Mary Anne Franks
Professor Franks’ presentation highlight the scale of the problem in the US (and globally), with her own
research having identified around 3,000 sites specifically featuring revenge pornography images; a figure
that does not include images that appear on mainstream pornography sites, social media, or blogs.
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But the issue also expands beyond the image itself. As Professor Franks explained, it is not simply a matter
of an individual releasing the photographs/videos, they also link these images to the victim’s social media
accounts and provide personal information such as the victim’s name, email, home address and phone
number, next to the image. In her experiences, the specific revenge pornography sites encourage
submission of posts and ask for personal information to ensure the women in the images can be identified.
In fact, some sites include a feature to allow users to search names and ‘find somebody that you know’.
In discussing terminology, Professor Franks argued that ‘non-consensual pornography’ was a more
appropriate term than ‘revenge pornography’. While acknowledging some people’s concerns with using the
term pornography, Professor Franks explained that the term captures the circumstances where a person is
forced to become sexual entertainment for others without their consent; in this way, it is not a
pornographic activity that the image exists, rather the act of making it entertainment is the pornographic
element. The non-consensual element then captures that the disclosure of sexually graphic images,
whether obtained without consent (e.g. hacked) or within the context of a private and confidential
relationship, is non-consensual, and a form of violence.
Drawing on US experiences, Professor Franks stressed that these images constitute much more than
revenge. Among many other reasons, they can be sent as a game or entertainment, and as a form of
control and abuse. In the US, perpetrators have included, among others, police officers (confiscating
phones, finding compromising images and sending to other officers), current partners, ex-partners,
individuals sharing recorded sexual assaults, strangers, acquaintances and college fraternity members
taking photos of naked, unconscious women and sharing the images on Facebook groups dedicated to this
form of violence. In noting these various cases, Professor Franks highlighted the many different forms of
this problematic behaviour and the many different types of parties involved. They range from the original
discloser (confidante, stranger, abuser), to the distributor (primary, secondary) and the audience
comprising the willing (those who seek out imagery), and the unwilling (those that didn’t choose to receive
the image and are often victimised in the process, such as the victim’s family members).
According to Professor Franks’ research, 90 percent of revenge pornography victims are women. Drawing
on the McAfee study she was involved in, Professor Franks noted that one in ten perpetrators had
threatened to disclose an image and 60 percent of these followed through with the threat. Professor Franks
also mentioned that approximately 20-30 victims each month contact the Cyber Civil Rights Initiative (CCRI)
– a non-profit organisation dedicated to challenging online harassment and abuse. Professor Franks is the
Legislative and Tech Policy Director and Vice-President of the CCRI.
In describing revenge pornography, Professor Franks noted that the harms can be categorised as sexual
abuse, intimate partner violence, harassment, harms against women, discrimination and an invasion of
privacy. However, the only harm that has gained traction in the US in a legal policy context has been the
privacy invasion caused by such images. While acknowledging this as a real and problematic outcome of
revenge pornography, Professor Franks stressed the importance of recognising these behaviours as
violence against women – as conduct that seeks to silence and harm women, and drive them out of
important spaces (such as online, employment, education). In this regard, it is important to speak less
about these behaviours as harms that are generalisable to all members of the community, and instead,
discuss them as a problem that affects predominantly women.
Professor Franks also identified the powerful role that technology can play in increasing the benefits of this
industry of humiliation and form of abuse for perpetrators – for example, being affordable and easy,
offering anonymity and social validation, the potential for social and monetary profit – while decreasing the
costs of the abuse for perpetrators and simultaneously increasing the negative consequences for victims.
For example, the amplification and permanence of the abuse leaves many victims feeling trapped and
silenced for fear of identification or further exposure.
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In the US, there have been some law reform efforts with 26 states and Washington DC implementing laws
that can be applied to revenge pornography. A Federal Bill is also being introduced into Congress this year
(2016). But one of the key challenges identified by Professor Franks has been negotiating freedom of
expression versus privacy/safety/censorship, and the fundamental need to recognise women as equals. In
this regard, there has been resistance to legislative intervention. The primary opponent has been the
American Civil Liberties Union (ACLU). The ACLU have advocated for civil and criminal legislation regulating
personal identifying information (e.g. medical records). However, they view revenge pornography as a
constitutionally-protected expression. As Professor Franks explained, the ACLU will fight any federal
legislation regulating revenge pornography. The ACLU was involved, for instance, in a lawsuit against the
state of Arizona in relation to its revenge pornography laws.
Another challenge has been in the drafting of appropriate laws, where there has been a focus on including
an ‘intent to cause harm’ requirement, limiting the sharing of images to internet/online only, and some
states only prosecute if the perpetrator is an intimate partner. As a result, Professor Franks notes that some
forms of offending have failed to be captured by the laws. For example, a ‘satirical group’ on a closed
Facebook forum encouraged users to upload pictures of unconscious women at parties (without the
knowledge or consent of the women). Despite this clearly falling into most definitions of revenge
pornography, a case could not be made that a law was broken, because there was no express intent to
cause distress to the victims, as this was a Facebook group accessible to members only.
Professor Franks also reflected on the Australian Senate Legal and Constitutional Affairs Reference
Committee Inquiry into the phenomenon colloquially referred to as ‘revenge porn’, specifically, the
comments of the Australian Federal Police Assistant Commissioner, Shane Connelley, who stated that
‘people have to grow up in terms of what they are taking and loading onto a computer because the risk is
high … If you go out in the snow without clothes on you will catch a cold. If you go on the computer without
your clothes on you catch a virus’ (Mr Connelley, Committee Hansard, 18 February 2016: 45). In responding
to these comments, Professor Franks not only noted that ‘this is literally not how a cold works’, but also
highlighted the problematic nature of such conceptualisations of revenge pornography as it removes
accountability from the perpetrator and shifts blame onto the victim. She argued that revenge pornography
is not a virus (computer or otherwise); and it is not something that just ‘happens’: someone is choosing to
share images without consent and that is where the focus should be.
Revenge Pornography Reflections from the United Kingdom
Professor Clare McGlynn
Professor McGlynn’s presentation provided a thorough overview of the benefits and limitations of the laws
recently introduced in England and Wales, and those proposed in Scotland. In doing so, she demonstrated
that despite being introduced as a way to ‘help women’, the laws and proposed law do not adequately take
into consideration women's (victims’) experiences. A clear example of this was the failure of the English and
Welsh laws to recognise revenge pornography as a form of sexual violence, thus it is not situated within the
law’s broader response to sexual offending. In this regard, revenge pornography laws do not have the same
anonymity provisions normally extended to victims of sexual violence.
Like Professors DeKeseredy and Franks, Professor McGlynn explained that these harms require far more
depth than simply being referred to as revenge pornography. Instead, she referred to the phenomenon as
‘image-based sexual abuse’. She argued that using a term like image-based sexual abuse conveys the
seriousness of the harms and better captures the breadth of images including those involving sexual
assaults, voyeurism, up-skirting, revenge pornography, domestic abuse and hacked images.
Professor McGlynn noted that there is a failure to fully recognise the harm caused by image-based sexual
abuse including harms relating to: health, well-being, physical safety, rights to privacy, dignity, and sexual
expression; and this lack of acknowledgement result in the normalisation of non-consensual sexual activity
and the minimising and trivialising of this form of sexual violence.
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She argued that this lack of understanding and appreciation exists across all different levels of society, and
this in turn impacts on the sorts of laws and policies that are adopted. The failure to recognise harm was
exemplified in the example Professor McGlynn gave of a male perpetrator in England who after being
found guilty and sentenced to a period of imprisonment for posting a video of his ex-girlfriend on a
pornography website without her consent said, ‘I wish I was going to jail for something worthwhile’.
However, Professor McGlynn noted that the failure to understand the harms of revenge pornography is not
just common to perpetrators; there is also a widespread lack of understanding in parliament among the
lawmakers. For example, in Scotland, the proposed legislation excludes the non-consensual sharing of up-
skirting images. While there are laws that prohibit the taking of such images, the proposed revenge
pornography laws do not include the disclosure and sharing of these types of images. When highlighting
this glaring omission to those involved in drafting the Scottish laws, Professor McGlynn said the members
of parliament were surprisingly unaware that the sharing of such images was a major issue, and instead
decided that if they do implement a revenge pornography law, they will wait to see whether up-skirting
becomes a major issue, before considering changing the proposed laws.
Professor McGlynn also outlined a number of limitations in the new and proposed laws. In England and
Wales, there was a rush to legislate, which impacted on the breadth and strength of the laws introduced. In
this way, there was a problematic focus on perpetrators (i.e. intent to cause distress) and a lack of attention
to the harms of the victim. Professor McGlynn forewarned that any new laws in Australia should not
require a focus on the victim showing harm or distress, in order for the offence to have occurred.
Additionally, the English and Welsh law is unlikely to cover hacked images or secondary distribution (i.e. on
social media), and does not include faked or photo-shopped images. Professor McGlynn thus stressed that
Australian legislators should consider the flaws of the English, Welsh and proposed Scottish laws.
In discussing the educative role of the law, Professor McGlynn noted that the expressive and symbolic value
of the new criminal laws in England and Wales should not be underestimated, however, she stressed the
importance of teaming legislation with widespread educational programs. This occurred in England and
Wales, where there was a large education campaign discussing the new laws and what constitutes revenge
pornography. There was subsequently a large increase in reports to police and the ‘Revenge Porn’ helpline
that was introduced dealt with over 1,800 calls in 6 months. Accordingly, Professor McGlynn suggested that
any changes in Australian jurisdictions should be combined with an information and awareness campaign,
as this is vital in ensuring awareness of the law.
4. Challenges and Experiences of Revenge Pornography: Australian Perspectives
Presenters
Fiona Mort, Office for Women, Department for Communities and Social Inclusion, South Australia
Sergeant Mark Higginbotham, Victoria Police, Melbourne Prosecutions Unit
Alex Davis, Domestic Violence Unit, Legal Aid New South Wales
Professor Barbara McDonald, Sydney Law School, New South Wales
Key Topics
Gender Inequality and Challenges in the Law
Challenges in Policing, Prosecuting and Preventing Revenge Pornography Offending
Victim-Blaming and The Absence of Appropriate Responses
Moving Beyond the Criminal Law
Gender Inequality and Challenges in the Law
In discussing revenge pornography, Fiona Mort identified one of the key challenges as being the absence of
Australian research to date, and because it is a developing area, we have yet to determine which discourse
we should place our discussion of these harms within. In terms of deficiencies in the law, Ms Mort flagged
the difficulties in the law trying to keep up with constantly evolving technologies. As she noted, ‘older
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people use Facebook, younger people use Snapchat because they think it disappears, but we now know
there is technology to retain those images’. Drawing from the experiences in South Australia, Ms Mort
discussed a recent case where consensual photographs of a woman taken by her partner were hacked by a
third party in another country and distributed online, but there was little recourse for the victim or for the
police to act. While recognising the difficulties of legislating for all types of offending (such as this case), she
argued that the law needs to respond to these harms and be really clear that perpetration of these acts is
within a context of violence against women.
Ms Mort stressed that any responses to revenge pornography needed to be situated within a gender
inequality and gendered violence context. She argued that ‘the whole notion has arisen because we don’t
have gender equality. It is shaming women, controlling them and silencing them. The threat to rape, harass
and demean women is because we don’t like what they have to say’. In this regard, she highlighted the
problematic victim-blaming attitudes that advocates have tried to shift in relation to sexual assault, now
being seen in relation to revenge pornography – ‘it’s your fault for taking/having the images’.
Ms Mort also identified the following key challenges:
Technology ensures mass impact of the harms;
Large companies are struggling to respond appropriately;
Transnational prosecutions are difficult and costly; and
Popular culture is increasingly normalising sexual violence and gender inequality.
Ultimately, Ms Mort stressed the need for a change in the language society uses when discussing sexual
abuse, including in the context of revenge pornography harms.
Challenges in Policing, Prosecuting and Preventing Revenge Pornography Offending
Drawing from his 20 years’ experience investigating and prosecuting sexual violence offences, Sergeant
Mark Higginbotham identified a common, problematic attitude emerging in Victoria (Australia) among
males, particularly young males, towards women. He described various examples of perpetrators who trawl
Facebook and social media sites for women they can target – often those with low self-esteem, who are
trusting and the perpetrator believes is unlikely to complain. He described the pages and pages of
transcripts he had read of the interactions instigated by these men, all of which read as if the same person
wrote the comments, because the same dialogue appears containing expressions of entitlement, claims of
obligation because ‘he did something for her’, and then the abuse and controlling behaviour moves to
threats of disclosure, shaming and victim-blaming.
Sergeant Higginbotham noted there are approximately 700 sex cases listed in the Melbourne Magistrates’
Court each financial year, and while the police and police prosecutors are trying to manage the experience
for victims in a better way, sex cases are not generally resolved by guilty pleas, and the police must offer
substantive evidence to prove the charges. On average, Sergeant Higginbotham suggested that just one in
20 complainants in sexual violence cases receive a positive outcome in court – an outcome he described as
very poor.
A key challenge identified by Sergeant Higginbotham for the police is resourcing and an absence of power
within the laws. The Victorian legislation covers revenge pornography as a summary offence, which means
the police have no arrest powers. There is nothing they can do if someone contacts them to say, ‘this man
is threatening to distribute images’. Likewise there is a 12 month statutory limit on any offence charged.
This is important because there is around a 12 month lag for the analysis of a hard drive. Bearing in mind
that the detectives tasked with investigating these offences have around 30 cases on the go at any one
time, the delay in this evidence can result in these cases being given a low priority and further to this, the
delay can result in many cases being permanently stayed, as the matters drag on for too long and there is a
‘justice delayed is justice denied’ requirement in place to protect alleged perpetrators from drawn-out
proceedings. Sergeant Higginbotham also said that in his experience, it was very rare for the revenge
pornography offence to be charged in isolation from other offences. Instead, it was being used to
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supplement other forms of offending behaviour such as stalking, which may reduce the effectiveness of the
offence in its own right.
While acknowledging that victims are being listened to and generally treated better by police, Sergeant
Higginbotham noted there are still fundamental issues for victims in obtaining justice under the current
laws and much more needs to be done.
Victim-Blaming and The Absence of Appropriate Responses
Alex Davis has been working in field of women’s rights for many years. Over this time, she noted there has
been a significant increase in the number of women reporting issues of technology-facilitated abuse,
including those experiencing revenge pornography. In her experience, Ms Davis has found that this type of
behaviour is used in tandem within a broader context of violence and is often used as a tool to prevent
women from leaving a violent relationship, or to punish them if they do leave.
Ms Davis noted one of the biggest challenges in responding or preventing revenge pornography is the
failure of society to see that the problem is about consent to share the images, not consent to make the
images. Likewise, she identified victim-blaming as one of the biggest challenges and the need to target
education campaigns to tackle gender inequality and victim-blaming in society. She noted that there is also
a need for more police training, as clients are going to police wanting to report instances of revenge
pornography and online harassment, and police are saying there is nothing that can be done. In highlighting
this problematic outcome for women, Ms Davis supported Sergeant Higginbotham’s resource claims,
noting that this absence of police action is closely linked to a lack of police funding and the fact police do
not have the resources to investigate these harms efficiently or effectively.
In describing the situation in NSW, Ms Davis said that the absence of specific laws has meant lawyers such
as herself are having to use existing laws very creatively. However, the laws relating to stalking and
voyeurism are ill-equipped to deal with revenge pornography harms. In addition to flagging specific
legislative reform, Ms Davis also noted the importance of having takedown orders that operate in tandem
with education and further research.
Moving Beyond the Criminal Law
Professor Barbara McDonald was tasked with preparing the Australian Law Commission’s
recommendations in relation to invasions of privacy in the digital era (2014). In doing so, she was involved
in looking at invasions of privacy in all sorts of contexts, including reading submissions from domestic
violence advocates, to drone enthusiasts and large corporations concerned about information being
transferred overseas. During the course of the inquiry, Professor McDonald said it became very that clear
revenge pornography was one of the most serious invasions of privacy in the digital era.
In considering laws to respond to revenge pornography, Professor McDonald noted that the key ingredients
should include invasion either by intrusion into seclusion (e.g. a person in the shower, a covert camera in
the roof) or by misuse of information (e.g. distributing images without consent), which, she argued,
revenge pornography clearly fits into. In this scenario, intent or recklessness does not have to be directed
at victim distress; it can be directed towards the invasion of privacy, and this is an objective test. In other
words, the invasion of privacy – the sharing/misuse of the image – is the wrong, as this is the breach of
privacy. The only question is whether the breach was intentional or reckless.
Professor McDonald stressed that there is a role for the civil law in relation to revenge pornography,
because the police cannot do everything and people cannot always rely on the criminal law for justice. In
making this point, Professor McDonald explained that this is why tort law developed, and there is certainly
scope in Australia to provide a mechanism for people to bring an action forward in relation to an invasion
of privacy breach.
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5. The Australian Senate Legal and Constitutional Affairs Reference Committee
Inquiry Recommendations
Key Recommendations from the Australian Senate Legal and Constitutional Affairs Reference
Committee’s Report
Australian governments should use the phrase ‘non-consensual sharing of intimate images’ or similar
when referring to revenge pornography in legislation and formal documentation.
The Commonwealth government should legislate against knowingly or recklessly recording an intimate
image without consent; knowingly or recklessly sharing intimate images without consent; and
threatening to take and/or share intimate images without consent, irrespective of whether the image/s
exist.
State and Territory governments should introduce legislation to capture revenge pornography
offending that is the same or substantially similar to the recommended Commonwealth legislation.
The Commonwealth government should empower a Commonwealth agency to issue takedown notices
for revenge pornography images.
The Commonwealth government should establish a formal mechanism for Commonwealth agencies
and internet and social media provides to regularly engage on issues relevant to revenge pornography.
The Commonwealth government should give further consideration to the Australian Law Reform
Commission’s (2014) recommendations regarding a statutory cause of action for serious invasion of
privacy.
The Commonwealth government should implement a public education and awareness campaign about
revenge pornography for adults.
All Australian police should undertake training in relation to revenge pornography.
In November 2015, the Australian Senate’s Legal and Constitutional Affairs References Committee was
tasked with investigating and reporting on the phenomenon colloquially referred to as ‘revenge porn’,
which they defined as ‘sharing private sexual images and recordings of a person without their consent, with
the intention to cause that person harm’. The Committee was asked to consider the impacts of revenge
pornography on victims and the community more generally; examine the types of responses that have
been introduced in other jurisdictions; and identify potential federal policy responses both criminal and
civil.
The Committee received 32 submissions and heard evidence from 20 witnesses. The majority of the
submissions supported the criminalisation of revenge pornography. As the Law Council of Australia
explained, a federal criminal offence would offer a ‘uniform approach’ across Australian states and
territories, which is important ‘in the digital age, where images can be distributed and accessed instantly in
any jurisdiction’ (Legal and Constitutional Affairs References Committee 2016b). The NSW Office of the
Department of Public Prosecutions also supported ‘a specifically targeted criminal offence [that] would fill a
gap within the existing law and go some way towards addressing what is a growing – and highly damaging –
phenomenon’ (Legal and Constitutional Affairs References Committee 2016b). Women’s legal and support
services from across Australia similarly described a federal criminal offence as ‘an important and much
needed lever in the Commonwealth government’s response to preventing violence against women’ (Legal
and Constitutional Affairs References Committee 2016b). In short, a new federal criminal offence was
considered a viable way to send a clear message to the community and potential perpetrators that these
abusive behaviours are unacceptable and will not go unpunished.
The Committee released their report containing the abovementioned eight recommendations, three days
after the More than Revenge Roundtable (Legal and Constitutional Affairs References Committee 2016b).
The report identified a need for governments to introduce both Commonwealth and state/territory laws to
specifically criminalise acts of revenge pornography, but further to this, highlighted the importance of
adopting a comprehensive response that includes: a mix of civil remedies; professional training for police; a
public education and awareness campaign on the harms of revenge pornography and any new laws
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implemented; and the development of a body (or empowerment of an existing body) to issue takedown
notices.
Much like the findings of the Roundtable, a key focus of the report was the need to move away from using
the problematic term ‘revenge pornography’ in any new laws and in public debates, with the aim of
addressing community perceptions and victim-blaming stereotypes – such as the views expressed by the
Australian Federal Police Assistant Commissioner Steven Connelley discussed by Professor Franks at the
roundtable. The Federal Government has yet to provide an official response.
6. Conclusion
Key Findings of the Roundtable
‘Revenge pornography’ should be replaced with a new term that captures the wide range of
motivations and behaviours that relate to the non-consensual distribution of intimate images.
Image-based sexual exploitation should be considered within a gendered context, taking into
consideration also other factors such as race, religion, sexuality and socio-economic status.
Any responses/laws implemented must take into account the sociological contexts, critiques and
cultures in which they are being introduced.
Problematic victim-blaming attitudes in society must be addressed and targeted by focusing
discussions, campaigns and laws firmly on the perpetrator’s actions in disclosing the images without
consent, not on the victim.
A comprehensive public education campaign aimed at adults, and also children, must accompany any
changes in the law.
Civil law alternatives should be strengthened and work alongside the criminal law.
The limitations in laws introduced elsewhere should be considered in any legislation introduced to
avoid mirrored issues arising in the Australian context.
Victims’ experiences must be at the heart of any laws introduced.
Police resourcing and training must be improved to better reflect technological advancements.
More research in this field is vital in order to provide an evidence-base for any policy reforms.
At the conclusion of the Roundtable, it became clear that Australian law has not kept pace with evolving
behaviours where technology is used in some way to perpetrate violence or harassment. While legal
redress is not the only way to address revenge pornography, there was a general consensus and indeed
strong support for criminal legislation that specifically captures the harms related to the non-consensual
distribution of intimate images. The Roundtable also demonstrated the importance of ensuring any laws
implemented are broad enough to cover a range of different behaviours beyond the paradigmatic revenge
pornography example (e.g. ex-lovers using sexually explicit images as a way to get revenge), but not so
broad that they undermine the intentions and useability of the legislation.
Much like the Senate Inquiry’s report, a key finding of the Roundtable was the need for any formal legal
responses to be implemented in conjunction with a range of other legal and non-legal remedies and
support services at educational, community, law enforcement, and policy levels. As we argue elsewhere
(Flynn, Henry & Powell 2016), while specific federal legislation criminalising revenge pornography is
overdue, any new law should not be relied upon as the only mechanism for addressing these harmful
behaviours. Instead, it will take a combination of legal and non-legal measures such as corporate and
organisational service agreements and community codes of conduct that include clear statements on the
unacceptability of revenge pornography; support and advocacy for victims of image-based abuse; training
resources for police and service providers; and awareness-raising and prevention in the community, to
create the cultural change needed to support victims, hold perpetrators accountable, and ultimately
prevent these harms before they occur.
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Another clear message arising from the Roundtable is the need to challenge the blame and stigma too
often directed at victims, and communicate that it is the perpetrators who knowingly or recklessly
distribute these images whose actions must be condemned. And finally, it is vital that additional research in
this area is undertaken to better understand the scope, nature and prevalence of revenge pornography to
ensure any responses have a sound theoretical and evidence-based from which to better address and
prevent these harms.
7. References
Australian Law Reform Commission (2014) Serious Invasions of Privacy in the Digital Era (ALRC Report 123).
Burns, A (2015) ‘In Full View: Involuntary Porn and the Postfeminist Rhetoric of Choice’, in C Nally & A Smith (eds)
Twenty–first Century Feminism: Forming and Performing Femininity (Basingstoke: Palgrave Macmillan).
Citron, DK & Franks, MA (2014) ‘Criminalizing Revenge Porn’, Wake Forest Law Review, 49: 345–391.
DeKeseredy, W & Corsianos, M (2016) Violence Against Women in Pornography (New York: Routledge).
Franks, MA (2015) ‘How to Defeat “Revenge Porn”: First, Recognize It’s About Privacy, Not Revenge’, Huffington Post,
22 June.
Flynn, A., Henry, N. & Powell, A. (2016) Ending ‘Revenge Porn’: How Can We Stop Sexual Images Being Used to Abuse,
The Conversation, 19 February.
Flynn A, Kirchengast T & Crofts T (2015) Digital Technologies and Revenge Pornography, paper presented at
Cybercrime Studies Centre Seminar Series, John Jay College, New York, United States, 12 November.
Henry, N & Powell, A (2015a) ‘Beyond the “Sext”: Technology–Facilitated Sexual Violence and Harassment against
Adult Women’, Australian and New Zealand Journal of Criminology, 48(1): 104–118.
Henry, N & Powell, A (2015b) ‘Embodied Harms: Gender, Shame and Technology– Facilitated Sexual Violence in
Cyberspace’, Violence Against Women, 21(6): 758–779.
Henry, N, Flynn, A & Powell, A (2015) Submission to the Legal and Constitutional Affairs Reference Committee –
Submission 9 (http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitution
al_Affairs/Revenge_porn/Submissions).
Legal and Constitutional Affairs Reference Committee (2016a) Official Committee Hansard, 18 January
(http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Rev
venge_porn/Public_Hearings).
Legal and Constitutional Affairs Reference Committee (2016b) Phenomenon Colloquially Known as ‘Revenge Porn’, 25
February (http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Af
fairs/Revenge_porn/Report).
Wilson, L (2016) ‘Top Prosecutor Warns Australia’s Revenge Porn Laws are Too Weak to Properly Protect Women’, The
Australian, 11 January.
Legislation
Abusive Behaviour and Sexual Harm (Scotland) Bill 2015
Criminal Code Act 1995 (Cth)
Criminal Justice and Courts Act 2015 (Eng)
Harmful Digital Communications Act 2015 (NZ)
Summary Offences Act 1953 (SA)
Summary Offences Act 1966 (Vic)
Cases
R v Daniel McDonald and Dylan Deblaquiere [2013] ACTSC 122.
Report written by
Dr Asher Flynn, Dr Nicola Henry and Dr Anastasia Powell
Assisted by
Rachael Burgin, Kate Burns and Madeleine Ulbrick
