As society adapts to developments in technology the law must also be reviewed and amended to ensure it remains relevant and addresses new forms of behaviour which had previously not been anticipated when legislation was drafted. This can be illustrated by the creation of new offences in recent years such as upskirting (Voyeurism Act 2019) and sexual communication with a child (Sexual Offences Act 2003.)
The law in this area has developed piecemeal and overlaps exist between different areas such as communication offences, hate crime and the non-consensual taking and sharing of intimate images. This has resulted in holes in the scope of the law and the Law Commission have undertaken a consultation to review and address these gaps.
The increased use of smart phones, chatrooms and other web based applications has presented everyone with greater opportunity to take photographs, alter images and share them. This means that it is also easier to take and share intimate images/videos which have often been taken in the course of a consensual sexual relationship. Campaign groups and Members of Parliament have raised concerns about the harm caused when these intimate images are later shared with others without the consent of the person in the image.
It is against this background that Section 33 of the Criminal Justice and Courts Act 2015 created an offence of disclosing private sexual images with intent to cause distress to the person depicted and without their consent.
This offence carries a maximum sentence of two years imprisonment and is made more serious if the conduct is intended to maximise distress or humiliation, the images are circulated widely or publically, there is a significant degree of planning or repeated attempted to ensure the images remain available to be viewed.
Subsequent to this offence being created the issue of threatening to disclose images has also been considered as attracting criminal culpability. Campaigners have pushed to have the distressing effect the threat of disclosure can have on a person recognised. This has led to S33 being amended by S69 of the Domestic Abuse Act 2021 which introduces, as of 29th June 2021, a new offence of threatening to disclose a private sexual image.
For this offence to be made out the Prosecution do not have to prove either that the image actually exists or, if an image does exist, that it is a private sexual image. The Crown must prove specific intention to cause distress in issuing the threat, intention cannot be inferred simply because the threat would be likely to cause distress.
The Law Commission’s review is ongoing and its final report is anticipated to be published in 2022.
It will consider anomalies and inconsistencies which currently exist. For example there is currently an offence which specifically deals with upskirting but not with downblousing. Altering an image and sharing it is similarly not currently directly addressed.
It seems likely that further new offences may be introduced to clarify the law and provide more structure in this evolving area of law.
