Content Warning: this post contains discussion of sexually explicit images and intimate partner abuse
The stories of Rehtaeh Parsons and Amanda Todd may have occurred on opposite sides of Canada, but their similarities are startling: without their consent. These extreme cases serve as examples of what is sometimes called 鈥榬evenge porn鈥� or, in legal terms, non-consensual distribution of intimate images. Put simply, non-consensual intimate image distribution occurs when a picture or video depicting a person in a sexually explicit manner gets shared without that person鈥檚 permission. It often involves persistent cyberbullying and acts of sextortion 鈥� where perpetrators manipulate victims with threats of releasing the content.
While mourning the losses of Rehtaeh Parsons and Amanda Todd, their families . Partly in response to this public outcry, the federal government implemented the , which brought some much-needed amendments to Canada鈥檚 Criminal Code. Though this act is an important step in the right direction, there is still work to be done to put an end to non-consensual intimate image distribution.
Updating Canada鈥檚 Criminal Code
Until recently, the Canadian courts had few 鈥� if any 鈥� laws or regulations that dealt with the distribution of intimate images without consent. That changed in 2015 with the introduction of to the Criminal Code. In short, this section prohibits sharing any sexually explicit image without the consent of the person depicted in it. Since its introduction, several cases of non-consensual distribution of intimate images have made their way through the justice system. Courts have interpreted, refined, and applied this provision with both positive and negative results.
So far, many convictions under section 162.1 have occurred in contexts . This is partially because cases of non-consensual distribution of intimate images involving strangers are notoriously difficult to prosecute. Still, even in cases where there was little or no relationship, offenders can face or . Both the Criminal Code and the courts have clearly . Section 162.1 also provides a flexible range of legal tools to help protect survivors from their abusers. Convicted abusers may be ordered to cease all contact with their victims, keep a specific distance from their homes and workplaces, participate in mandatory counselling programs, perform community service, or even . Overall, these tools will hopefully help to encourage victims to feel comfortable reporting their abusers to the justice system and getting the support they deserve.
Work left to be done
As much as the court is moving in a positive direction to聽help survivors of intimate partner abuse, their treatment of section 162.1 still leaves some room for improvement. Not only can the court鈥檚 analysis of the victim鈥檚 images () be an invasive and de-humanizing process, but the criminal process as a whole can exclude or overlook its impact on victims. A victim may suffer re-traumatization by testifying in front of the court as a witness, and there are still many barriers to proving all the elements of 162.1 beyond a reasonable doubt. For example, apps such as Snapchat can make it difficult to prove whether an alleged offender was . Finally, even where a conviction is obtained, there is debate over whether imprisonment is an effective deterrent to committing crime. Unfortunately,
How, then, can we tackle the issue of non-consensual distribution of intimate images, especially as it relates to violence against women who are leaving abusive relationships? I believe the answer will ultimately lie in enacting sweeping social reforms, rather than leaving the issue solely up to the criminal justice system. Proactive educational efforts that teach individuals how to cultivate and maintain healthy intimate relationships would likely be more effective than retroactively punishing those who fail to do so. It will also help to create a more tolerant and safe society for all.
Kaelyn Macaulay聽(she/her) is a 3L at the 麻豆AV Faculty of Law. Through her work as a research assistant with the iMPACTS project, she has conducted extensive research on various educational and legal responses to non-consensual distribution of intimate images.
