revenge porn

The world’s first camera-phone went on sale more than 18 years ago, boasting the ability to store a maximum of 20 photos. Our use of these devices has changed at an astronomical pace since, but the legal framework regulating them has been kept, at best, at a hobble.

It was just four years ago that Victorian parliament became the first Australian government to legislate penalties for “revenge porn” (more accurately termed “image-based abuse”) — the act of sharing explicit photos of another person without their consent. Recent high-profile cases like that of former AFL player Dane Swan, whose publicly leaked sexual encounter became the subject of a criminal investigation, have highlighted discrepancies in state approaches to the issue, and fuelled calls for a more uniform regulatory framework.

What laws do we currently have?

In 2014 Victoria became the first state or territory to criminalise the non-consensual publishing or sharing of an image that a court deems “contrary to community standards of acceptable conduct”, with a maximum penalty of two years imprisonment. South Australia and the ACT soon followed with similar legislation, and NSW introduced specific criminal penalties late last year.

WA, Queensland, Tasmania and the Northern Territory are yet to pass similarly explicit laws and so residents rely on a hodge-podge of tangentially relevant federal and state laws for protection. Section 474 of the Commonwealth Criminal Code, for example, prohibits the use of a “carriage service” to “menace, harass, or cause offence”. Last year it was used to convict a Queensland woman who posted explicit images of her husband’s former lover on Facebook without her permission.

What are the proposed federal laws?

The Turnbull government introduced a bill to legislate sweeping civil penalties to the Senate late last year. The bill defines revenge porn as the “non-consensual sharing of intimate images”, and charges the eSafety Commissioner with receiving victim complaints. It empowers the agency to demand the removal of offending images and hand down fines of up to half a million dollars if an individual or organisation doesn’t comply. 

The proposed laws also implicate offensive drawings and sketches, something Senator David Leyonhjelm couldn’t stomach, quipping if he “posted a picture or a drawing of President Donald Trump urinating in Central Park” he “shouldn’t face a $100,000 fine”.

Labor Senator Deb O’Neill on the other hand, told parliament the measures should go further. “The non-consensual sharing of intimate images is exploitative, it’s humiliating and it’s a very damaging form of abuse. It needs to be treated as such,” she said.

RMIT research from 2017 shows four out of five Australian respondents agree with her, and believe revenge porn should be a criminal offence.

In a submission to the Senate, the Top End Women’s Legal Service was one of many groups who expressed their displeasure. “A criminal offence also serves a symbolic and educative function, and a tailored offence would clearly highlight and reinforce the wrongfulness of this behaviour. The government’s refusal to make this behaviour a criminal offence is out of step with the Australian community.”

The bill is set to be debated in the House of Representatives when parliament resumes.

Will it ever be federally criminalised?

When asked about the likelihood of broad federal criminal legislation, however, Bond University’s associate professor of criminology Dr Terry Goldsworthy can’t contain his mirth.

“Look, it would be fantastic if we had uniform criminal laws throughout Australia,” he told Crikey. “But we’ve had that proposal for a uniform criminal code for 20 years and never got any closer to it, because crime and the laws to deal with crime are a state responsibility, that was conferred by the Commonwealth.”

The NT and WA both have proposed bills before parliament and the Queensland government was elected on a promise to, so Goldsworthy says it shouldn’t be too long before the state laws are roughly uniform across the country.

“You currently have state law enforcement who are using the federal legislation on state issues. I think they’ll all criminalise revenge porn soon, so they’ll just use the state laws instead of having to use the federal offences.”

Goldsworthy says there are more fruitful ways for legislators to spend their time.

“You can put the legislation in place, but you need to train the police to actually be effective in investigating the issues. Prevention and education would be far more effective ways to go.”

Peter Fray

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