CLEARING YOUR HISTORY: A REVIEW OF NON-CONSENSUAL DISTRIBUTION OF INTIMATE IMAGES IN CANADA AND FUTURE RESPONSES.

• Author: Jochelson, Richard

INTRODUCTION AND BACKGROUND

Non-consensual distribution of intimate images (NCDII) is a growing problem as Canadians continue to engage in the majority of their communications through digital means. In this article, we review the legal liabilities attendant to NCDII and consider a sampling of the emerging jurisprudence. This area of jurisprudence is fraught with a number of implications for victims, law enforcement, human rights, and civil rights by directly engaging interests and values such as autonomy, privacy, dignity, and equality.

At the centre of this intricate web is section 162.1 of the Criminal Code, the provision that makes it illegal to distribute the intimate images of another without their consent:

162.1 (1) Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) of an offence punishable on summary conviction. (1)

An "intimate image", according to section 162.1(2), can be any visual recording, including a photograph, film, or video recording, that depicts a person either naked or exposing their genital organs, anal region, or breasts, or engaging in explicit sexual activity. In order to prove the offence, the Crown must show that the media was recorded in circumstances that gave rise to a reasonable expectation of privacy and that the person in the image retained a reasonable expectation of privacy when the image was distributed. (2) Circumstances that give rise to this reasonable expectation include instances where: (a) the person is in a place which they can reasonably be expected to be nude, to expose their genital organs, anal region, or breasts, or to be engaged in explicit sexual activity; (b) the person is nude, is exposing their genital organs, anal region, or breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or (c) the observation is done for a sexual purpose. (3) The Crown need only make out one of these three elements. The only defence to a section 162.1 charge is a public good defence, which is applicable where "the conduct that forms the subject-matter of the charge serves the public good and it does not extend beyond what serves the public good." (4)

This article proceeds in four parts. In Part I, we introduce some introductory context for NCDII including its normalization, its gendered nature, and some issues of discourse as to the term. In Part II, we explain the impacts experienced by victims of NCDII and discuss the origins of section 162.1 of the Criminal Code. Part III explores the various legal approaches available to those who fall victim to this crime. In this section, a few guiding cases are discussed before moving on to concerns around sentencing of offenders. The sentencing section exposes the kinds of harms that judges are assessing in meting out punishment for offenders. We leave a description of the many civil remedies available to victims that focuses on common law torts, non-consensual image legislation, and provincial privacy legislation for another paper. Part IV contains our concluding commentary where we analyze and unpack significant obstacles for NCDII victims and lawmakers. We ultimately query whether bringing NCDII within the scope of hate speech would be both appropriate and beneficial in addressing these challenges. We make this claim not as a cure all for the section, but rather as a means of reclaiming the equality-based values that animate many of the harms experienced by victims of NCDII; that is, that the impacts are inherently gendered and expressed as a type of harm not just to the victim, but in some cases to women as a class of targeted persons. Some supplementary hate speech prosecution could help invigorate and crystallize these types of harms in the interest of public education and denunciation. Ultimately, engaging hate speech as a mechanism for the prosecution of NCDII may advance a trauma-informed approach to the prosecution of digital offences in Canada. This will provide a much-needed emphasis on the gendered nature of these offences.

1. INTRODUCTORY MATTERS

   1. NORMALIZATION OF NCDII

      Consensually sharing sexual images for a significant other has become a much more common practice in intimate relationships. (5) One study showed that in persons between the ages of 18 and 26, about half have sent "nude or seminude photos or videos" of themselves to others and approximately two-thirds have received "sexually explicit photos". (6) Concerningly, incidences of NCDII have steadily increased in tandem with this consensual exchange, compounding the sexual violence already disproportionately experienced by its most common victims: women and girls.

      Five hundred and sixty-nine cases of NCDII were reported to police across Canada in 2018; an increase of 274 cases since 2016. (7) Remarkably, this number only represents police reported cases; it can be safely assumed that the number of individuals affected by NCDII in Canada is likely much higher. In fact, incident-based crime statistics report 1,483 "actual incidents" of NCDII in 2018. (8) The same report shows a slight decrease in the number of charges involving youth; from 350 in 2017 to 325 in 2018. (9) But once again, the actual number of youth affected is likely larger. Madigan and colleagues found that 12% of youth have forwarded an intimate image of another without consent, and 8.4% of youth have had their intimate images shared without consent. (10) A 2020 study from the US found that 8.7% of teens who had been in a romantic relationship in the last year had experienced NCDII. (11) And young people are not the only ones affected--American studies have shown that anywhere from 4-12.8% of adults are victims of NCDII or have been threatened with image distribution. (12) In addition, the collection of online platforms designed to facilitate the public distribution of nude photos of ex-partners has grown to be extensive. (13) Research suggests that there are likely about 3,000 sites dedicated to NCDII in existence, boasting tens of thousands of images each. (14) These numbers cast a potentially worrying shadow over the safety of vulnerable populations in the digital communications environment.

   2. GENDERED IMPACTS

      It is perhaps unsurprising that the victims of NCDII are most often women and girls. Women are 1.7 times more likely than men to be victimized by the sharing of non-consensual intimate images. (15) American and Canadian studies have found that the majority of images uploaded to websites dedicated to NCDII--up to 91.8%--are of women. (16) There remains a gap in research concerning the interaction between online violence and race, age, sexuality, or socioeconomic status. (17) One study of US college students found that racialized students were more likely to experience NCDII. (18) Other studies suggest that women with disabilities and 2SLGBTQ+ people are also commonly targeted. (19) An American study carried out by the Cyber Civil Rights Initiative found that bisexual women experienced the highest rates of NCDII amongst research participants at 17.19%. (20) Clearly, NCDII s scope is wide, particularly amongst communities that are already more frequently victimized by sexual violence.

   3. PHRASEOLOGY OF NCDII

      Prior to delineating the potentially expansive scope of the crime and inconsistency in the language used to talk about it, an exploration of the unauthorized dissemination of intimate images demands first an accurate framework for discussion. In framing this article, we have chosen to use the phrase "non-consensual distribution of intimate images" (NCDII). NCDII is the phenomenon where a nude, semi-nude, or sexualized photograph or video is distributed electronically without the consent of the individual(s) depicted in the image. (21) This term serves to capture a comprehensive range of scenarios in which intimate images are shared without permission, including instances where images may have been taken without consent, outside of a relationship, or during an assault. It also speaks to situations in which an intimate image is never actually taken or sent to the distributor but is instead the product of sexualized photoshopping. (22)

      Amidst the many phrases interchangeably used to describe the many kinds of NCDII, two terms have become common but remain inadequate: "revenge pornography" and "cyberbullying". "Revenge pornography" narrows the issue of NCDII to the context of romantic relationships and implies that the individual featured in the image deserves such a violation for having wronged the distributor. (23) To use the term "pornography" is also to risk conflating NCDII with images consensually shared in commercialized erotica settings. (24) Classifying NCDII as "porn" also underplays or denies the impact it has on victims as a tactic often meant to humiliate, coerce or exploit. (25) To inadvertently eroticize such a crime is to also inadvertently minimize its harms. (26)

   4. THE DISAPPEARANCE OF POWER DYNAMICS

      NCDII has been described as an example of sexual cyberbullying. The term "cyberbullying" has largely been used to discuss reciprocal conflict "involving youth who can simultaneously be a victim and aggressor." (27) If used to describe NCDII, "cyberbullying" erases the fact that its class of victims is not restricted to young people; indeed women and girls experience similar rates of technology-facilitated harassment and sexual violence. (28) Further, such a term obscures the intersecting structures of power and violence that are often at play when intimate images are...