Written submission from Professor Clare McGlynn (SPP0047)

Executive Summary

1. Recognize ‘continuum of sexual harassment’ (beyond ‘public’ and ‘workplace’)

•                                                                                                                                                                                                                                         Recognising the continuum will enable a focus on the harms experienced by victims (not where or how perpetrated) and spotlight the root causes of sexual harassment (gender inequality).

2. Recognize new forms of ‘public sexual harassment’ resulting from technological change

•                                                                                                                                                                                                                                         Technological developments have generated new ways of perpetrating ‘public’ sexual harassment, such as: viewing porn in public; the non-consensual receipt of ‘dickpics’; and ‘deepfake’ or photoshopped pornography, as well as image-based sexual abuse.

3. Strengthen laws on image-based sexual abuse (including ‘revenge porn’ and ‘upskirting’)

•                                                                                                                                                                                                                                         Current law is inconsistent, unjustified and piecemeal;
•                                                                                                                                                                                                                                         Extend and amend voyeurism offence to cover upskirting and range of motives;
•                                                                                                                                                                                                                                         Extend automatic anonymity to all complainants of image-based sexual abuse;
•                                                                                                                                                                                                                                         Strengthen law by removing specific motive requirements (non-consensual distribution sufficient);
•                                                                                                                                                                                                                                         Threats to distribute images should be covered;
•                                                                                                                                                                                                                                         Strengthen law by including altered (photoshopped) images; and
•                                                                                                                                                                                                                                         Introduce a single, easily comprehensible Act covering image-based sexual abuse (such as New South Wales (Australia) Crimes Amendment (Intimate Images) Act 2017.

4. Drawbacks of ‘catch-all’ offence criminalizing sexual harassment

 

1. ‘Continuum of sexual harassment’: beyond ‘public’ and ‘workplace’

1.1                                                                                                                                                                                                                                     It is vital that public policy recognizes that women experience sexual harassment in all areas of their lives and in many different ways: we might helpfully call this the ‘continuum of sexual harassment’.[1]

1.2                                                                                                                                                                                                                                     In terms of where and when they experience sexual harassment, for example, they may experience sexual harassment while at home in ‘private’ (for example from a partner, family or voyeur), at work (from employers and third parties), in public spaces (transport, supermarket) as well as online (in public, private and in the workplace). Recognising the continuum of sexual harassment means we can focus on the nature and extent of the harms which women experience, rather than on the place or situation where or when these harms occur. 

1.3                                                                                                                                                                                                                                     Thinking of a ‘continuum of sexual harassment’ also helps us to acknowledge the variety of ways in which sexual harassment is experienced and perpetrated, but without creating a hierarchy of serious/less serious behaviours. For example, it is important to acknowledge that experiencing sexual harassment in education is not ‘less serious’ than in the workplace; offline harassment is not ‘worse’ than online; physical harassment is not ‘more severe’ then verbal/online abuse.

1.4                                                                                                                                                                                                                                     Further, we must understand that women make sense of specific incidents of what we think of as ‘sexual harassment’ as part of their overall experiences (on a continuum) of harassment, abuse and sexual violence, across their lifespan. Sexual harassment, therefore, is on a continuum of sexual violence.

1.5                                                                                                                                                                                                                                     Policy implications of recognizing ‘continuum of sexual harassment’:

1.6                                                                                                                                                                                                                                     Focus on harm to victims: The impact of recognizing the ‘continuum of sexual harassment’ is that we focus on the harms women experience, rather than where/when, seeing the links between differing experiences, and we remove distinctions based on assumptions about serious/less serious forms of harassment. This is not about seeking equivalences, but about seeing connections.

1.7                                                                                                                                                                                                                                     Resist dichotomous thinking: Approaching policy in this way – what Karen Boyle refers to as ‘continuum thinking’[2] – means that we resist dichotomies which often privilege some experiences over others, eg public/private, offline/online, physical/emotional, stranger/acquaintance, repeated/one-off.

1.8                                                                                                                                                                                                                                     Enable focus on root causes: In resisting dichotomies, we aim to strengthen policy responses to tackle root causes (rather than isolating specific behaviours) and respect victims’ experiences. This means focusing on the systemic inequalities facing women and tackling all forms of gender discrimination.

2. ‘Public sexual harassment’: new forms of harassment resulting from technological developments

2.1                                                                                                                                                                                                                                                  When we think of the prevalence and extent of ‘public’ sexual harassment, we must take into account how technology is creating new ways of perpetrating harassment and abuse. We must therefore recognize newer forms of sexual harassment which do not fit easily into current laws and policies, for example:

2.2                                                                                                                                                                                                                                                  Viewing pornography in public: As smartphones become ubiquitous, it is now easy to view pornography in public, for example on public transport or in a library. This is a new form of street harassment/sexual harassment: our individual choices and privacy is being compromised and we are being subjected to non-consensual sexual activity.[3] While the porn-viewer is entitled to privacy and freedom, as members of the public, we too are entitled to privacy in public and to feel safe (and porn watching in public can be threatening).

2.3                                                                                                                                                                                                                                                  Non-consensual receipt of ‘dickpics’: Being sent a ‘dickpick’ without consent is a form of sexual harmassment which can be experienced in many situations, including in ‘public’ (but also in the workplace). A recent YouGov poll found that 41% of younger women had received unsolicited ‘dickpics’.[4] Of those who had received these images without consent, more than half said they found it "gross" or "stupid", while 23% said they found it "distressing" and 17% found it "threatening." Just 13% said they found receiving a dick pic "pleasing." Almost half (46%) of millennial women who have received a "dick pic" were younger than 18 the first time it happened, and this figure rises to 71% of 18-24 year olds. The survey also found a disturbing mis-match in expectations between women and men who had sent dickpics: men who have sent dick pics are far more likely than women who have received them to think they are seen as “sexy” (44% vs 14%), “funny” (51% vs 28%) and “boring” (50% vs 28%).

2.4                                                                                                                                                                                                                                                  ‘Deepfake’ porn and photoshopped intimate images[5]:  Photoshopping of images is becoming ever more sophisticated such that it can be virtually impossible to tell if an image has been altered. Victims of image-based sexual abuse, including ‘revenge porn’, are having non-sexual photos altered to sexualise them, and distributed without their consent, with the harms being the same as if the image had originally been intimate and shared without consent. Technology is also now making it possible to superimpose faces/images onto existing pornography videos; making it look like the person is appearing in the pornography. These are forms of sexual harassment and abuse with often devastating consequences.

2.5                                                                                                                                                                                                                                                  Policy implications:

2.6                                                                                                                                                                                                                                                  Importance of continuum of sexual harassment: Current laws and policies are only catching up with these behaviours. However, what is most important about these examples is that they signal the importance of thinking broadly (the ‘continuum of sexual harassment’) because law and policy cannot always predict how behaviours will change and what new forms of harassment will arise.

2.7                                                                                                                                                                                                                                                  Piecemeal laws not ‘future-proofed’: We can see how a limited framework, and pedantically drafted laws, fail to ‘future-proof’ our responses, in examples such as: 2003 laws on voyeurism only covering private spaces and therefore not upskirting; or 2015 laws on image-based sexual abuse (including ‘revenge porn’) not covering photoshopping, threats or upskirting.

2.8                                                                                                                                                                                                                                                  Sexual abuse, not only privacy harms: The growing problem of ‘deepfake’, AI and photoshopped images reveals that charactertising ‘revenge porn’ as only a privacy violation (as in the US) fails to capture the reality of harms and renders current legal responses inadequate. This is because altered images are not seen as a privacy breach, as the image is not ‘stolen’ and shared without consent. It is vital, therefore, to emphasise that the harms are sexualised – it is a form of image-based sexual abuse – and therefore whether the image is altered, or original, if created or shared without consent, it is a harm requiring redress. These are forms of sexual harassment and abuse, not just privacy harms. This underlines why characterising image-based sexual abuse as a sexual offence is so important. English law does not currently cover images or videos which are photoshopped to make them pornographic and then distributed without consent.

3. Online abuse: strengthening laws on image-based sexual abuse (including ‘revenge porn’ and ‘upskirting’)[6]

3.1                                                                                                                                                                                                                                        Women experience many forms of sexual harassment that can be considered ‘public’ including where technology is used to perpetrate the abuse, and where women experience the abuse online. The law has not kept up with these developing forms of harassment and technological developments and is in urgent need of reform. 

3.2                                                                                                                                                                                                                                        The current legal position: inconsistent, unjustified and piecemeal

3.2.1                                                                                                                                                                                                                                           Unless the law is changed, unjustified inconsistencies will remain such as:

3.2.2                                                                                                                                                                                                                                           private sexual image taken of victim without consent in private: automatic anonymity for complainant and potential voyeurism offence but only if sexual gratification proven;

3.2.3                                                                                                                                                                                                                                           private sexual image shared without consent (ie a classic ‘revenge porn’ scenario): no anonymity for complainant and only offence if intention to cause distress proven;

3.2.4                                                                                                                                                                                                                                           private sexual image taken in public without consent (eg upskirting); no anonymity and only offence if outrages public decency; and

3.2.5                                                                                                                                                                                                                                           Private sexual image taken in place assumed neither public nor private, such as some school settings: no anonymity, no offence of either voyeurism, nor outraging public decency. 

3.3                                                                                                                                                                                                                                        Extend and amend voyeurism offence to cover upskirting

3.4                                                                                                                                                                                                                                        Another form of abuse that has become more common as a result of technological developments is that known as ‘upskirting’. Laws and policies have also failed to keep pace with victim expectations in this area and urgent reform of the law is needed. Over recent months, many women have come forward with their experiences of upskirting and seeking reform of the law.[7] Where victims come forward and explain that they experience this harassment as a form of sexual offence, and feel let down that the law does not clearly cover this activity, public policy should listen and act accordingly.

3.5                                                                                                                                                                                                                                        To ensure upskirting is clearly covered by the criminal law, one option is to amend the voyeurism offence in section 67 of the Sexual Offences Act 2003. This approach was taken in Scotland in 2010 and can now be found in the amended section 9 of the Sexual Offences (Scotland) Act 2009.

3.6                                                                                                                                                                                                                                        Amending and extending motive requirement

3.7                                                                                                                                                                                                                                        However, if this approach is taken, it is vital that the motive requirement is amended and extended so that it is not limited only to those seeking ‘sexual gratification’. The Scottish legislation has done so and not only covers a sexual motive, but also the intention to ‘humiliate, distress or alarm’ the victim.

3.8                                                                                                                                                                                                                                        Nonetheless, even such an extension would not cover the perpetrator who takes upskirt images (or indeed more conventional forms of voyeuristic images) for a ‘laugh’ or for financial gain. The law should be strengthened to remove specific motive requirements (‘or for any other reason’ to encompass all forms of non-consensual creation of ‘upskirt’ images). The recently adopted Crimes Amendment (Intimate Images) Act 2017 in New South Wales provides a clear example of how this can easily be done.[8] It is vital that the law focuses on the harms to victims that persist irrespective of the motive of the perpetrator.

3.9                                                                                                                                                                                                                                        The motive requirement for existing forms of voyeurism (where images are taken of a person in ‘private’ without their consent) should also be extended beyond just sexual gratification, so that it covers all reasons for taking voyeuristic images.

3.10         Extend automatic anonymity for complainants of image-based sexual abuse[9]

3.11         The law should be amended to grant automatic anonymity to all complainants of image-based sexual abuse. At present, the law only covers specific sexual offences (such as voyeurism) and does not therefore extend to all complainants of image-based sexual abuse, including victims of upskirting or ‘revenge porn’.

3.12         These are all forms of sexual offence: the harm is to the victim’s sexual integrity and sexual privacy, the mode of perpetration is sexual and the abuse that often accompanies this conduct is sexualised. Victims report experiencing these acts as sexual offences.

3.13         Sexual offences do not require a sexual motive (it is the mode of conduct that is sexual). Nor do sexual offences require contact (many existing sexual offences do not have a conduct requirement).

3.14         An ICM poll we commissioned last year found that 75% of the public agreed that victims of ‘revenge pornography’ should be granted automatic anonymity to bring the offence into line with other sexual offences.[10]

3.15         The Government has recently recognised the need for anonymity in cases of female genital mutilation and forced marriage and the time is right for the Government to extend these protections to complainants of image-based sexual abuse.

3.16         Strengthen ‘revenge porn’ law (s33 Criminal Justice & Courts Act 2015)

3.17         The 2015 Act was a welcome development recognising the harms and impact of what is often referred to as ‘revenge pornography’. However, the practice of the law has revealed its limits.

3.18         Strengthen law by removing specific motive requirements (non-consensual distribution sufficient)

3.19         The current law is limited due to it requiring proof that the perpetrator directly intended to cause distress to the victim. Reckless intention is specifically excluded. The law, therefore, fails to provide protection to victims whose images are shared for many other purposes such as sexual gratification, financial gain, notoriety, or for a ‘laugh’. It is recommended that the offence is one of intentional distribution of a private sexual image without consent. If the law is to be more restricted, (with the effect of excluding some victims), reckless intention should at least be covered. The recently adopted Crimes Amendment (Intimate Images) Act 2017 in New South Wales provides a clear example of how this can easily be done.

3.20         Threats to distribute images should be covered

3.21         The 2015 law covering the disclosure of private sexual images with intent to cause distress (‘revenge porn’) does not cover threats to distribute such images. This is a major lacuna that particularly affects women in abusive relationships where such threats are increasingly common. English law is out of step with international best practice in not covering threats, including Scotland and Australia.

3.22         Strengthen law by including altered (photoshopped) images

3.23         English law is out of step with technological developments and understandings of victims’ experiences. The law should be amended to include altered images, as is already the case in Scotland, and many parts of Australia.

3.24         Introduce a single, easily comprehensible Act covering image-based sexual abuse

3.25         The current law is piecemeal, confusing and spread across a number of different statutes. Victims, lawyers, police and the public find it difficult to understand the current law and are baffled by the inconsistencies and why some victims are covered and others not. Resolving this situation is not difficult. There are examples in other countries, such as New South Wales, where there is a straightforward, easy to understand Act which covers the non-consensual creation/taking and distribution (and threats) of intimate images. 

4.               Drawbacks of ‘catch-all’ criminal offence of sexual harassment

4.1              There is a debate over whether all forms of sexual harassment should constitute a criminal offence.[11] Such an offence would be seeking to cover forms of harassment not currently subject to the criminal law, such as ‘street harassment’. This approach has a number of potential drawbacks:

4.2 Victims not seeking criminalization of street harassment: Many victims of street harassment are not seeking criminalization of the conduct, differentiating this from other forms of harassment such as ‘upskirting’.[12] This is not because it is not harmful, but because many do not want to compound the harms by reporting to police.

4.3 Distraction of public debate: Experience in other countries (eg Denmark) has been that even where a comprehensive package of measure is announced, including education, culture change and policy developments, where there are plans to strengthen the criminal law, that dominates debate. My concern is that the focus of discussion becomes on criminalizing the boundaries of sexual harassment/acceptable conduct, at the expense of more significant issues such as education and cultural change. In public discussions around sexual harassment, there is a clear ‘discourse of distraction’, minimizing sexual harassment, and a discussion of boundaries and criminalizing will feed that debate. This is partly because there is a lack of public consensus on who to tackle these forms of harassment (such as street harassment), compared to more common agreement on issues such as ‘upskirting’ and image-based sexual abuse. 

4.4 Ineffective policing and prosecutions: In practice, English law already covers many forms of ‘sexual harassment’ (eg ‘groping’ is sexual assault and criminalised; repeated harassment is criminalised), but with little effective enforcement. Another law covering single acts of verbal harassment is unlikely to change the practice of perpetrators, victims, police or prosecutors. This emphasizes the need to focus on education and cultural change. While these criticisms of law enforcement also apply to many laws criminalizing acts of sexual violence and harassment against women, the case for change is less strong here in view of victims’ perspectives and lack of consensus on the issue.

Expertise of Clare McGlynn, Professor of Law, Durham University

Clare McGlynn is an expert on laws relating to sexual violence, pornography and online abuse including image-based sexual abuse. She has worked closely with politicians, policy-makers and the voluntary sector to strengthen laws relating to violence against women, including the introduction of new criminal offences targeting rape pornography and image-based sexual abuse (including ‘revenge porn’). She gave evidence before the Women & Equalities Select Committee in December 2017 on women’s experiences of everyday sexism and sexual harassment, and has given evidence before the Scottish and English Justice Committees on these issues. Her research with Erika Rackley developed the concept of ‘image-based sexual abuse’, and she is currently part of an Australian Research Council funded research project investigating the prevalence and extent of image-based sexual abuse across the UK, New Zealand and Australia. 

March 2018