Sexual Violence in the Digital Age: The Scope and Limits of Criminal Law

Nicola Henry, RMIT University

http://www1.rmit.edu.au/staff/henry-dr-nicola

 Anastasia Powell, RMIT University

http://www.rmit.edu.au/contact/staff-contacts/academic-staff/p/powell-dr-anastasia 

Since the mid-2000s, there has been a discernible shift in the ways in which digital technologies are being used by individuals to perpetrate sexual violence, sexual harassment and domestic violence. We call this ‘technology-facilitated sexual violence’ and focus on behaviours such as the creation or distribution of nude, sexual or sexually explicit images without consent (also known as ‘revenge pornography’); rape jokes, rape memes and the promotion of rape-supportive attitudes in online spaces; online threats of sexual violence, including publicly posting the names and addresses of women who ‘deserve to be raped’; misogynist hate speech in online spaces; online sexual harassment; and the use of online dating and other sites as a means to facilitate a rape or sexual assault. In 2017, these behaviours continue unabated and although victim-survivors and advocates are using online spaces with great effect to expose the extent and nature of misogyny and a rape-supportive culture, at the same time, perpetrators are finding new ways to humiliate, embarrass, exploit and punish their victims using technology as a tool of abuse.

In our article, ‘Sexual Violence in the Digital Age: The Scope and Limits of Criminal Law’, our focus was on criminal acts, and we did not discuss other behaviours that are deemed (or could be deemed) unlawful under civil laws, such as online gender-based hate speech and online sexual harassment. Yet our broader research on technology-facilitated sexual violence explores a much more diverse spectrum of behaviours, including both civil and criminal acts. We label these collectively as a form of sexual violence. We recognise that at their core, these are gendered harms that are caused by individuals as well as the structural inequalities that exist in relation to gender, sexuality, race, disability and socio-economic status.

Since we started out writing the article for Social & Legal Studies back in March 2013, our thinking on this topic has developed significantly, as we have conducted more research, as the technologies and behaviours themselves have developed and changed, and as more knowledge about this problem is generated to understand the prevalence, impacts, causes, responses and remedies. In the introduction to our article, we explained that

Part of the challenge is to devise appropriate terminology to describe a vast array of different gender-based online harms such as ‘revenge pornography’, ‘virtual rape’, ‘cyberstalking’ and ‘online gender-based hate speech’ as well as the use of new technologies to perpetrate more traditional or conventional crimes, such as domestic violence or sexual assault. Existing terminology and the laws that govern such offences in many jurisdictions internationally do not adequately capture the scope, nature or intersection of such harms.

One key challenge has been to come up with appropriate categories and sub-categories to conceptualise ‘technology-facilitated sexual violence’. In a review for another paper, an anonymous reviewer had a problem with the way we used the term ‘sexual violence’ because they argued that the term ‘violence’ should be restricted to physical acts of violence only. We respectfully disagreed. Indeed, the reviewer’s comment only strengthened our resolve to expand the definition of sexual violence beyond the purely physical acts (as researchers in the domestic violence field have likewise done). We have focused on exploring the significant impacts of these behaviours, and to position them within an understanding of gendered (and sexual) violence more broadly.

As mentioned above, our article only explores the criminal acts (as dictated by laws in various international, common law jurisdictions) so our typology or categorisation was not fully expanded upon in this article. However, in our forthcoming book, titled Sexual Violence in a Digital Age (Palgrave Macmillan, 2017), we find it useful to consider multiple dimensions of technology-facilitated sexual violence including, although by no means limited to, the following three main categories or types: technology-enabled sexual aggression; image-based sexual abuse (including ‘revenge pornography’ and ‘sextortion’); and online sexual harassment (including sexual solicitation, image-based harassment, gender-based hate speech and rape threats). These can alternatively be categorised as either contact offences; image-based violations; or text or speech-based harms. The diagram below represents a simple categorisation of our typology.

N Henry and A Powell blog - typology TFSV main

As we have been continuing to conduct research over the past six years on this topic, another challenge has been how to keep up with rapidly changing behaviours – where digital technologies are being used in some way to perpetrate a harm or to continue the harm of an existing offence. The second diagram below expands on this first diagram to encompass a number of sub-categories relating to technology-facilitated sexual violence. This categorisation enables, we hope, a richer and more complex understanding of the diversity of behaviours, but we recognise that there are significant overlaps between the different but similar behaviours. We also hope that this conceptualisation will better shape law, policy and educational responses to each issue. For instance, although we do not suggest that criminal law is the best (or indeed only) way to deal with all of these problems, in some situations, the criminal law is one of many responses that is needed (image-based sexual abuse being a pertinent example). This was one of our key arguments in the Social & Legal Studies article.

N Henry and A Powell blog - typology TFSV

Another significant development in our thinking concerns more specifically the issue of ‘revenge pornography’. In our article, we pointed out the problems associated with the terminology and indicated that our preferred alternative was ‘image-based sexual exploitation’ as we wanted to find a term that overcame the problems with the ‘revenge porn’ label; one that captures the broad diversity of motivations and behaviours involving image violations in the digital era. However, since publishing this article, we have now dropped this term in preference for ‘image-based sexual abuse’, as also used by Professor Clare McGlynn (Durham University, UK) and Professor Erika Rackley (University of Birmingham, UK) who we are now working collaboratively with on an international project (funded by the Australian Research Council – along with Dr Asher Flynn (Monash University, Australia) and Professor Nicola Gavey (University of Auckland, New Zealand).

We have also since developed a typology of image-based sexual abuse to recognise that image-based violations are much broader than that of sharing or distributing images. This is also indicated in our forthcoming book. There we investigate an array of behaviours involving the creation or distribution of nude, sexual or sexually explicit images without consent (including the threat of distribution), which include the following sub-categories: (1) relationship retribution (where revenge is a motivation within the context of an intimate relationship); (2) sextortion (where the perpetrator seeks to obtain further images, money or unwanted sexual acts using existing images, or the threat of images, regardless of whether not they exist); (3) sexual voyeurism (where perpetrators are seeking to create or distribute images as a form of sexual gratification, including (but not limited to) ‘upskirting’ and ‘down-blousing’); (4) sexploitation (where the primary goal is to obtain monetary benefits through the trade of non-consensual imagery); and (5) sexual assault (where perpetrators and/or bystanders record sexual assaults and rapes on mobile phones or other devices and/or then distribute those images) (see diagram above).

Finally, our article also leaves out a discussion of the findings from our 2015 survey with over 5,000 Australian and UK adults on the prevalence and experiences of technology-facilitated sexual violence. This is because at the time of publishing, we were in the process of data analysis. We have since published an article discussing the results of this survey (see Powell & Henry, 2016). Mentioning our mixed methods (for our broader project on technology-facilitated sexual violence) is a good opportunity to reflect on research in this field. We want to encourage more research into the prevalence, nature, impacts, and responses to, technology-facilitated sexual violence. This is a growing issue, and technology is increasingly been used in some way in the perpetration of sexual harassment, domestic violence, and sexual violence. We believe that mixed research methods are vital to understanding the problem of gendered violence. Thus while quantification is vital for establishing prevalence and inspiring action on a practical level, it is vital that we also conduct qualitative research to understand the lived experiences of victims, and the perspectives of key stakeholders who are part of the solution to these problems.

Beyond empirical research, legal analyses are also incredibly valuable for understanding the limitations and potentials of law for responding to technology-facilitated sexual violence. And it was this aspect that our Social & Legal Studies article was focused upon.

Finally, none of this research is possible in the absence of theoretical and conceptual investigations into the nature of the problem. Theory gives us a way to make sense of our rapidly changing social world. It is a tool for analysis and understanding, and any policy, law or any other practical application is significantly hampered (in our view) in the absence of theory.

Nicola Henry and Anastasia Powell are the authors of ‘Sexual Violence in the Digital Age: The Scope and Limits of Criminal Law‘ (2016) 25(4) Social & Legal Studies 397-418, and of Sexual Violence in a Digital Age (Palgrave Macmillan, 2017).

 

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