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“Try Not to be Embarrassed”: A Sex Positive Analysis of Nonconsensual Pornography Case Law

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Abstract

Media, police, and educational responses to nonconsensual pornography (i.e. ‘revenge porn’) have been critiqued for relying on sex negative beliefs that result in victims of this act being blamed and shamed for their own victimisation. In this article I analyse judicial discourse in nonconsensual pornography case law to assess the extent to which sex negativity is embedded in legal responses. I find that, while overt victim blaming and shaming is not present in the judicial discourse, subtle forms of sex negativity are expressed in a minority of cases through references to consensual youth image sharing as inappropriate and through the framing of reputational harms. I argue that it is essential for legal responses to not only avoid sex negative narratives (as most currently do) but to actively reveal and counter the sex negative beliefs that underlie many of the harms associated with nonconsensual pornography.

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Notes

  1. Nonconsensual pornography refers here to the nonconsensual distribution of photos or videos depicting nudity, partial nudity, or sexually explicit acts (see: Citron and Franks 2014).

  2. While research has largely focused on the blaming and shaming of straight, cis gender, white women and girls in cases of nonconsensual pornography (Karaian 2014), researchers are also beginning to reveal the ways that racialised people, sexual minorities, men and those with disabilities have experienced acts of nonconsensual pornography (Powell and Henry 2017; Dodge 2020). Research about these groups remains underdeveloped and, especially in regard to the experiences of trans victims, more research is certainly needed.

  3. In 2015, Sect. 162.1 was added to the Criminal Code of Canada. This section makes it an offence to distribute an intimate image of a person without their consent. The motives of the accused are irrelevant for this offence (e.g. there is no requirement of malice as in some jurisdictions internationally). An intimate image is defined to include both those images that were created consensually or nonconsensually at the outset and there is no requirement for victims to prove they experienced harm (though the level of harm the victim experienced can be considered in sentencing decisions).

  4. Because child pornography charges have been used against youth who nonconsensually distribute intimate images of their peers (as sexually explicit and nude images of those under the age of 18 constitute child pornography under Canadian law), these cases had to be carefully reviewed to determine which cases fitted within the definition of nonconsensual pornography and which represented the power imbalance of adults victimising children. Cases involving child pornography charges were included if the victims and offenders were close-in-age youths that could legally engage in sexual acts together.

  5. CanLII, WestlawNext Canada, and LexisNexis Quicklaw.

  6. While a widely cited 2014 study by the Cyber Civil Rights Initiative (CCRI), based on a small and female heavy sample of victims, reported that 90% of nonconsensual pornography victims were women, more methodologically sound studies have since found much less (Eaton et al. 2017 found 6.6% of men and 9.2% of women are victimised) or no significant difference (Henry et al. 2017; Lenhart et al. 2016) in victimisation rates along gendered lines. Steeves (2014) even found that teen boys were somewhat more likely to have their image shared without consent than teens girls. This is not to say that there isn’t substantial evidence showing that the impacts on women and girls are often more severe due to sexist beliefs (Dodge 2020).

  7. While Aikenhead also finds that victim responsibilisation is relatively rare in Canadian case law, her findings and method diverge from this article in important ways. Her article, which more briefly considers victim responsibilisation, is a gender-based violence analysis of six cases charged under Canada’s nonconsensual intimate image distribution offence. Aikenhead identifies one case in her analysis, R v PSD (2016), as engaging in a form of victim responsibilisation that is more overtly responsibilising than those I describe. From Aikenhead’s perspective, the judge in PSD responsibilised the victim for the act of nonconsensual pornography committed against her by asserting that she contributed to the “volatile and dysfunctional” nature of the relationship. Contrary to Aikenhead’s interpretation, I interpret the judge as explaining the volatile context of the relationship so as to explain that the offender’s actions were a “rash decision”, rather than a more planned and deliberate action, for the purposes of sentencing. The judge explicitly stated that this context was “no excuse for [the offender’s] behaviour” (R v PSD 2016: para 13). I do not find clear evidence of the kind of overt responsibilisation that Aikenhead perceives in this case; rather, my broader dataset and concentrated analysis of sex negative responsibilising discourses finds that more subtle sex negativity and victim blaming/shaming are present in the case law. While Aikenhead’s gender-based violence analysis is useful for analysing many aspects of the nonconsensual pornography case law, a sex positive analysis allows for a more comprehensive understanding of the variable contexts in which this act takes place (Dodge 2020) and the subtle ways that victim blaming and shaming function in these cases.

  8. R v CNT, 2015 NSPC 43.

  9. Ibid, para 11.

  10. Ibid.

  11. R v Sharpe, 2001 SCC 2.

  12. Ibid, para 109.

  13. R v SB et al. 2014 BCPC 0279.

  14. Ibid, para 4.

  15. Ibid, para 18.

  16. Doe 464,533 v ND, 2016 ONSC 541.

  17. Ibid, para 14.

  18. Ibid, para 16.

  19. R v Korbut, 2012 ONCJ 691.

  20. Ibid, para 24.

  21. Ibid.

  22. R v JS, 2018 ONCJ 82.

  23. Ibid, para 35.

  24. R v Zhou, 2016 ONCJ 547.

  25. Ibid, para 22.

  26. Ibid.

  27. R v Barnes, [2006] AJ No. 965.

  28. Ibid, para 29.

  29. In Canadian criminal law there is no requirement to prove harm to the victim in order to convict, but the extent of harm caused may be considered in sentencing. The social and professional harm to a particular victim, and the ways that these harms relate to sex negative beliefs and can interact with sexist, racist, classist, homophobic, or transphobic beliefs, can certainly be discussed in detail without relying on sex negative understandings of reputation in discussing these harms.

  30. See Naezer (2018) for a reconceptualisation of consensual intimate image sharing as an ‘adventure’ rather than as a ‘risky behaviour’.

  31. R v MR, 2017 ONCJ 558.

  32. R v Zhou, 2016 ONCJ 547, Appendix.

  33. Moreover, Bloom’s framing leaves unanalysed the sex negative belief that those who have consensually uploaded nude or sexual images online deserve to have their future job prospects affected.

  34. These responses assume that images will be publicly available and easily found through an online search for the victim’s name that might be undertaken for hiring or for school admissions. It is important to note that this level of public image availability would only be possible in those cases, which seem to be rare in the existing youth case law, where: images are shared publicly online (rather than through text messages, private social media groups, private messaging/file sharing apps etc.); images are shared with the victim’s name attached (to allow for searchability); the victim is readily identifiable in the image (e.g. the image includes their face rather than just their breasts); and images have not been recognised or reported as child pornography/nonconsensual pornography and thereby removed from social media platforms and/or from major search engines. Additionally, as described above, this panicked response assumes that potential employers and admissions staff would necessarily interpret the images as detrimental to academic or work success rather than as evidence of victimisation.

  35. Such responses also fail to actually help youth understand how ‘safer sexting’ practices, such as avoiding including one’s face in self-created nude images (Karaian 2014), might help to limit the potential of these particular impacts occurring.

  36. Kids Help Phone. 2019. What is sexting? www.kidshelpphone.ca. Accessed 20 December 2019.

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  1. Law, Justice, & Society, Dalhousie University, 6299 South Street, Halifax, NS, B3H 4R2, Canada

    Alexa Dodge

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Dodge, A. “Try Not to be Embarrassed”: A Sex Positive Analysis of Nonconsensual Pornography Case Law. Fem Leg Stud 29, 23–41 (2021). https://doi.org/10.1007/s10691-021-09452-8

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