Consent- Why the Disparity? Revenge Porn under the Spotlight

Consent- Why the Disparity? Revenge Porn under the Spotlight

In the age of social media and instant messaging, private images of an individual can make their way around the world in a matter of minutes, without the consent of their subject; potentially causing humiliation and distress. Does the current legislation properly and fairly reflect the responsibility of the person disclosing the images to establish the consent of the subject?

Colloquially referred to as ‘Revenge Porn’ – although vengeance is in fact not a legal element of the offence- disclosing private sexual images without consent is a relatively new offence, defined by s.33 of the Criminal Justice and Courts Act 2015 (which came in to force on 13 April 2015) as follows:

(1) It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—

(a) without the consent of an individual who appears in the photograph or film, and

(b) with the intention of causing that individual distress.

Section 1 of the Sexual Offences Act 2003 defines Rape as follows:

(1 ) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Equally, Sexual Assault is defined by the Sexual Offences Act 2003 as follows:

  • A person (A) commits an offence if-
  • He intentionally touches another person (B),
  • The touching is sexual,
  • B does not consent to the touching, and
  • A does not reasonably believe that B consents.
  • Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Notably, the definition of ‘Revenge Porn’ provides no requirement that the defendant reasonably believed that the complainant was consenting. Arguably, this puts more of an onus on a defendant to establish true consent before disclosing private sexual images, than before engaging in sexual intercourse or sexual touching.

In a recent ‘Revenge Porn’ trial, the complainant admittedly sent messages to the defendant prior to the disclosure of images. The messages could have been construed as providing consent, although the complainant at trial denied that they amounted to consent. By reason of the wording of the legislation, the defendant was denied the opportunity to raise a defence that he ‘reasonably believed’ that the messages amounted to consent; a defence which would have been open to him, had he been accused of rape.

Of course, if you are going to insert your penis into any part of another person, or you are going to sexually touch any other person, your sexual partner must consent. That if they in fact were not consenting, the safety valve is that you would be able to argue that your interpretation of their comments, behaviour and actions or lack thereof led you to reasonably believe that they were consenting. This seems to be a common-sense piece of legislation.

Significantly less sense has been exercised in relation to ‘Revenge Porn’ legislation. Your reasonable belief holds no weight. Consent in ‘Revenge Porn’ appears to be more black and white than in cases of rape and sexual assault.

Justification for this disparity has yet to be established. What can be seen, however, is the ramifications for defendants charged with ‘Revenge Porn’ who are denied a defence which is open to those who are alleged to have committed an offence of greater gravity.

Megan Fletcher

Charter Chambers

November 2018