Intimate Images and the Tyranny of Modern Love/Abuse
I was at a holiday dinner on Christmas day this year, when a colleague, and a friend, revealed to me stunning news. Upon the dissolution of her marriage, she took a less than fair property settlement. My friend is an established author, intellectual and teacher. Why would such an intelligent and established person agree to what was manifestly an unfair deal? Her partner, she informed me, threatened to send intimate pictures of her to people she had worked with. Afraid for her reputation, she acquiesced, and the rest is history.
Acquiescence is not a fair term to use in this context. Abuse is more accurate. And this sort of abuse is more possible now than ever before, given the information sharing technology that is interwoven into our daily lives. The statistics speak for themselves. Justice Canada reports that surveys of 18-54 year old adults revealed:
"that 1 in 10 ex-partners have threatened to expose intimate photos of their ex on-line, and according to the survey, these threats have been carried out in 60% of the cases."
According to Justice Canada, the statistics are even more prolific for younger people where:
"an online survey of 1,280 respondents (653 teens aged 13-19 and 627 young adults aged 20-26) in 2008 commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens and 33% of young adults had sent nude pictures of themselves via text or email."
Intimate digital images seem to have become a normalized part of relationships, augmenting or replacing the traditional and old fashioned art of racy love letters. Often times, the digital content is exchanged in direct messaging applications of popular social media fora. In the immortal words of Yo Gotti: "It goes down in the DM". Described by Rolling Stone magazine, as a song about "a story of smartphone-aided flirtation" that contains "no shortage of creepy internet stalking and sexually explicit social media messages", Down In The DM is portrayed in its video as a piece of work that "carefully dulls the edges, showing a wedding where all the guests are busy exchanging erotic photos via DM".
The risk associated with the sharing of intimate images is crafted as being part of the transaction in such portrayals, but it is certainly the case that law has begun to clamp down on the risks that artists like Yo Gotti seem to be celebrating. Amar Khoday writes about the changing legal landscapes of Internet intimate imagery sharing in his important work Resisting Revenge Pornography: When Victims Strike Back.
Khoday unpacks the relatively new trend towards civil actions when victims seek compensation for the non-consensual sharing of sexual imagery, usually by ex partners. Khoday writes that "revenge pornography is about 'hating women, taking enjoyment in seeing them violated, and harming them.'”
Khoday explains that the basis of liability in such cases means that:
"unconsented public exposure emerges as a source of psychological trauma; the trauma is not only foreseeable but intended. This in itself causes serious harm but is further compounded when personal information identifying the plaintiff’s identity is revealed and she is subjected to further harassment. Indeed, some have committed suicide or have seriously contemplated this due to the sustained distress this exposure causes."
The Criminal Code of Canada has recently evolved to account for the non-consensual sharing of sexual imagery. The Protecting Canadians from Online Crime Act amended the Code by making warrant procedures more feasible for law enforcement and by creating:
"a new offence of non-consensual distribution of intimate images as well as complementary amendments to authorize the removal of such images from the Internet and the recovery of expenses incurred to obtain the removal of such images, the forfeiture of property used in the commission of the offence, a recognizance order to be issued to prevent the distribution of such images and the restriction of the use of a computer or the Internet by a convicted offender."
Provincial jurisdictions have also created legislative tort liability for non-consensual sharing of intimate images. The Manitoba Intimate Images Protection Act provides in section 11(1) that:
"A person who distributes an intimate image of another person knowing that the person depicted in the image did not consent to the distribution, or being reckless as to whether or not that person consented to the distribution, commits a tort against that other person."
Section 11(2) states that "An action for the non-consensual distribution of an intimate image may be brought without proof of damage".
Section 14(1) provides a broad range of remedies:
"In an action for the non-consensual distribution of an intimate image, the court may
(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;
(b) order the defendant to account to the plaintiff for any profits that have accrued to the defendant as a result of the non-consensual distribution of the intimate image;
(c) issue an injunction on such terms and with such conditions that the court determines appropriate in the circumstances; and
(d) make any other order that the court considers just and reasonable in the circumstances".
Case law is starting to trickle out dealing with the criminal and provincial legislation, and the statistics on whether these legislative actions can be assessed as successful remain to be seen (See Khoday 2016). Arguably, tools to fight the proliferation of non-consensual sexual imagery existed prior to these overt legislative actions (see West Coast LEAF's Cyber Misogyny Project for details).
West Coast Leaf concluded, in its study of the issues, that despite the existing tool kit for fighting against these sorts of cyber crimes:
"failing to regulate cyber misogyny limits freedom of speech rather than the other way around. Women and girls have a right to express themselves online without being silenced by hateful, harassing and misogynistic responses."
Now with fresh legislative tools at their disposal, it remains to be seen whether the victims of these cyber sexual crimes will be able to receive some level of protection from the law. The law's success rate in protecting vulnerable people, especially women, is particularly dubious. The inability of the law of sexual assault to meaningfully protect women from abusive harms serves as a particularly disturbing reminder that despite radical law reform designed to protect victims, victims are often reluctant to be involved in the legal process due to re-victimization, a feeling that testimony on the stand will damage dignity and reputation, and the sense that low odds odds of success will meet with many years of reliving the trauma of victimization (See Department of Justice 2004).
For example, it is well established that the vast majority of sexual assault victims will not report the crimes to law enforcement (See Department of Justice 2004). Indeed, the most vulnerable populations seem most at risk: "people [usually women] with disabilities are at greater risk of suffering the most serious kinds of sexual aggression". Other inter-sectional characteristics, such as Indigenous identity further contribute to the risk calculus.
Reflecting on my conversation with my friend this past December 25, I contemplated the legal options that were available to her. The vast array of existing Code protections, the possibility of using the newest Manitoba tort legislation, or even the use of the common law as a potential source of redress.
None of these things mattered to my friend. After the torment she suffered in her marriage, the last thing she wanted was a protracted legal battle over some intimate images that had been taken of her during a moment of trust with someone she thought she had loved. Despite her esteemed education, intellect and integrity, and despite the attempts of law makers to provide victims like her with some redress, she could not act. Her dignity was held hostage to the privilege of someone else's position. Her social place was too indelibly formed for her prodigious talents to overcome the risk. She brushed herself off, left town, leaving most of her belongings with her ex, and started a new life. She lives in fear each day due to the tyranny of those images. Law reform will not solve that.
Department of Justice Report. "Bill C-46: Records Applications Post-Mills, A Caselaw Review". (2004) Accessed January 9, 2017 at http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr06_vic2/toc-tdm.html
Department of Justice Report. "Cyberbullying and the Non-consensual Distribution of Intimate Images". (2013) Accesed January 9, 2017 at http://www.justice.gc.ca/eng/rp-pr/other-autre/cndii-cdncii/p6.html
The Intimate Image Protection Act C.C.S.M. c. I87
Danielle Keats Citron & Mary Anne Franks, “Criminalizing Revenge Porn” (2014) 49 Wake Forest L. Rev. 345
Amar Khoday. "Resisting Revenge Pornography: When Victims Strike Back." (2016) 25 Canadian Cases on the Law of Torts (4th) 45
Protecting Canadians from Online Crime Act S.C. 2014, c. 31
West Coast LEAF. "#Cyber Misogyny: Using and strengthening Canadian legal responses to gendered hate and harassment online" (2014) Accessed January 9, 2017 at http://www.westcoastleaf.org/wp-content/uploads/2014/10/2014-REPORT-CyberMisogyny.pdf