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Revenge porn: now an offence under The Criminal Justice and Courts Act 2015

The Criminal Justice and Courts Act 2015 has created a new statutory offence of 'disclosing private sexual photographs and films with intent to cause distress' (s.33). This has created a specific

The Criminal Justice and Courts Act 2015 has created a new statutory offence of 'disclosing private sexual photographs and films with intent to cause distress' (s.33). This has created a specific offence which seeks to address the problem of 'revenge porn'. The rise of incidents of intimate images being posted online without consent has become a serious concern due to the increasingly prevalent culture of 'sexting' and the technological advances which have made it easy to reproduce and distribute photographs and videos online. This has become a particular problem amongst young adults and teenagers. Under s.33 it is offence to disclose a private sexual photograph or film if the disclosure is made without consent and with the intention of causing distress. The mental element of specific intent prevents the argument that the accused ought to have known that the disclosure would cause harm. This is reinforced by s.33 (8) which it clarifies that intent will not be found merely because that was a natural and probable consequence of the disclosure. This has the effect of preventing some of the potential convictions where there was genuinely no harm anticipated.

The new offence is a significant development. Although there have been previous convictions under the Communications Act 2003 and the Harassment Act 1997, neither of these Acts were drafted specifically with these disclosures in mind. Neither Act addressed the different circumstances in which 'revenge porn' occurs. The scope of the concepts 'private' and 'sexual' provide far wider protection than was previously accessible. The former is defined as "something that is not of a kind ordinarily seen in public" (s.35 (2)) and the latter is an equally wide ranging and objective test that asks if the disclosure shows something that a reasonable person would consider to be sexual (s.35 (3)). Those convicted under the new offence could face a sentence of up to two years imprisonment. The courts' previous sentencing powers were restricted to a six month maximum.

It will be interesting to observe the number of prosecutions that are successful under the new offence and if wider awareness of the more stringent punishment provides a deterrent for those who would otherwise be inclined to disclose private photographs or videos as a means of revenge. There is only so far the law can go, however, and the wider culture of education and awareness must also be dealt with outside of the courts. For now, the creation of the new offence addresses some of the concerns in this area and, while not necessarily preventing revenge porn from happening, certainly reveals an intention

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