Government to implement Law Commission recommendations to protect victims of intimate image abuse

The Law Commission report says: 

"The origins of this project are rooted in our Abusive and Offensive Online Communications Scoping Report which was published in November 2018. The purpose of that Report was to assess the extent to which the current law achieved parity of treatment between online and offline offending. We noted that there was considerable scope for reform and identified compelling arguments for a review of three branches of the law: the non-consensual taking and sharing of intimate images; hate crime; and communications offences. We have since published final reports on Hate Crime and Modernising Communications Offences.

In 2019, the Ministry of Justice asked us to conduct a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent. We looked at the current range of offences that apply in this area and identified the gaps in the scope of protection currently offered. In February 2021, we published a consultation paper with provisional proposals for reform to the law. We published our report containing our final recommendations on 7 July 2022. The recommendations will create an intimate image offence regime that appropriately addresses wrongful and harmful behaviour and provides consistent and effective protection for victims.

The problem

The increased use of smartphones and online platforms has made it easier to take photographs or film, alter or create images and send images to our family and friends or the public at large. However, this also means that it is now easier to take or make images of others or to distribute images of others without their consent (whether the images were taken consensually or non-consensually in the first place). This is particularly concerning when those images are “intimate” in nature, such as where the person is naked, engaging in a sexual act or when the image is taken up a person’s skirt or down a female’s blouse.

The non-consensual taking and sharing of intimate images can have a significant and long-lasting impact on victims. The harms they experience are serious and significant. These can include psychological harm such as anxiety, depression and post-traumatic stress disorder (PTSD), worsening physical health and financial harm either through time off work or through withdrawing from online spaces which reduces access to networking opportunities. In some cases, there have been reports of attempted suicide and self-harm.

Currently, there is no single criminal offence in England and Wales that governs the taking, making and sharing of intimate images without consent. Instead, we have a patchwork of offences that have developed over time, most of which existed before the rise of the internet and use of smartphones. Each offence has different definitions and fault requirements, and there are some behaviours that are left unaddressed. The limitations and gaps in the current law include:

• Inconsistency over the type of intimate images that are covered. For example, upskirting is currently a criminal offence but downblousing is not. Sharing an altered image, such as a deepfake, is also not covered.
• Not all motivations for taking or sharing an image without consent are covered by the current offences. Whilst motivations such as sexual gratification and causing distress are covered (although not consistently), other motivations such as sharing the images as a joke or to coerce an individual are not covered at all.
• Ancillary provisions and special measures such as automatic anonymity for complainants are inconsistently available.

Consultation

We published our consultation paper on 26 February 2021; the public consultation ran until 27 May 2021. We received over 350 responses which have helped inform the recommendations we have made.

Our recommendations for reform

In our final report published on 7 July 2022 we make a number of recommendations for reform to the criminal law as it relates to taking, making and sharing intimate images without consent.

We recommend a new tiered framework of offences which uses one consistent definition of an intimate image, covers the full range of perpetrator motivations, and applies protective measures for victims consistently. This framework comprises the following five new offences:

1. A base offence of taking or sharing an intimate image without consent.
2. More serious offences:
   a) An offence of taking or sharing an intimate image without consent with the intention of causing the victim humiliation, alarm or distress.
   b) An offence of taking or sharing an intimate image without consent with the intention that the image will be looked at for the purpose of obtaining sexual gratification.
   c) An offence of threatening to share an intimate image.
3. An offence of installing equipment in order to commit a taking offence.
   

We define an “intimate image” as an image that is either sexual, nude, partially nude, or of toileting. These types of images show something that is inherently personal, private and intimate. Some images will fall into these categories but are less inherently private or intimate, such as images of people kissing. Consequently, we recommend that the definition of “intimate” should exclude images where they only depict something that is ordinarily seen on a public street, with the exception of intimate images of breastfeeding which would not be excluded. Additionally, we recommend that the taking or sharing of an intimate image that was taken in public, or has been previously consensually shared in public, should be excluded.

The definition of “intimate” focuses on what is shown in the image, not what the person was wearing or doing when it was taken. This means that “upskirting” and “downblousing” images (where an image is taken down, underneath or inside clothing without consent) will be covered. The limitations we recommend above will ensure that only the more intimate, and therefore harmful, downblousing images will be criminalised. Taking or sharing an image that shows only cleavage of a kind ordinarily seen on a public street, or shows only what the person was voluntarily exposing in public, will not be an offence.

In relation to the offences of sharing an intimate image without consent, and threatening to share an intimate image, we recommend that it should not matter whether that image is an original, altered or created in any way. This includes deepfakes and images that have been “nudified” where an app digitally removes clothing from a non-intimate image making the person appear nude.

For the base offence, we recommend that there should be a defence available to a defendant with a reasonable excuse. We also recommend two specific exclusions from the base offence for taking or sharing conduct that should not be within the scope of a criminal offence. The exclusions relate to the taking or sharing of an intimate image of a young child of a kind that is ordinarily shared by family and friends; and the taking or sharing of an intimate image of an incompetent child for their medical care or treatment, where there is parental consent.

We recommend that complainants of intimate image offences should benefit from automatic lifetime anonymity, automatic eligibility for special measures at trial, and restrictions on cross-examination of witnesses in proceedings. We also recommend that Sexual Harm Prevention Orders should be available and notification requirements be triggered in cases of intimate image abuse where there is relevant sexual conduct of sufficient seriousness."