Sexual Violence in The Digital Age: The Scope and Limits of Criminal Law

Article
Social & Legal Studies

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Sexual Violence in the The Author(s) 2016
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DOI: 10.1177/0964663915624273
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and Limits of Criminal
Law
Nicola Henry
La Trobe University, Australia
Anastasia Powell
RMIT University, Australia
Abstract
Considerable scholarly attention has been paid to a range of criminal behaviours that are
perpetrated with the aid of digital technologies. Much of this focus, however, has been on
high-tech computer crimes, such as hacking, online fraud and identity theft, or child
exploitation material and cyberbullying. Less attention has been paid to technology-
facilitated sexual violence, where new technologies are used as tools to perpetrate or
extend the harm of a sexual assault, extend control and abuse in a domestic violence
situation, or distribute sexual or intimate images of another without their consent. In this
article, we focus on the scope and limitations of criminal legislation for responding to
these varied but interconnected gendered harms. We argue that although there have
been some developments in a range of international jurisdictions, particularly relating to
the phenomenon of revenge pornography, much more needs to be done both within
and beyond the law. Whilst we support the intervention of the criminal law, we argue
that equal attention must be given to policies and practices of educators, law enforce-
ment agencies, service providers, online communities and social media networks to fulfil
the promise of equal and ethical digital citizenship.
Keywords
Criminal law, cybercrime, revenge pornography, sexual violence, technology
Corresponding author:
Nicola Henry, La Trobe University, Bundoora Campus, Melbourne, Victoria 3086, Australia.
Email: n.henry@latrobe.edu.au
Downloaded from sls.sagepub.com at Middle East Technical Univ on February 13, 2016
2 Social & Legal Studies
Introduction
There is growing media, activist, practitioner, legal and scholarly attention to the phe-
nomenon of technology-facilitated sexual violence (TFSV), where mobile and online
technologies are used as tools to blackmail, control, coerce, harass, humiliate, objectify
or violate another person. Part of the challenge is to devise appropriate terminology to
describe a vast array of different gender-based online harms such as revenge pornogra-
phy, virtual rape, cyberstalking and online gender-based hate speech as well as the
use of new technologies to perpetrate more traditional or conventional crimes, such as
domestic violence or sexual assault. Existing terminology and the laws that govern such
offences in many jurisdictions internationally do not adequately capture the scope,
nature or intersection of such harms. Legislative and policy responses frequently treat
existing and new technologies merely as tools of abuse and as such elide the unique
ways in which victim survivors experience harms (Henry and Powell, 2015b). These
behaviours are frequently framed in public discourse using euphemistic, titillating or
narrow language that produces a paradigmatic conceptualization of the behaviour (e.g.
revenge porn) and in the process excludes other related behaviours or leads to both vic-
tim blaming and perpetrator exoneration. On the other hand, focusing more broadly on
the phenomenon of TFSV provides an opportunity to reflect on the similarities among
diverse behaviours, impacts and responses as well as the problematic language surround-
ing them.
In this article, we examine the scope and limitations of criminal laws for responding
to TFSV. We draw predominantly on Australian law as a means to illustrate the ways in
which a common law country is grappling with these issues and the adequacy or inade-
quacy of current approaches within this context. We examine the emerging literature on
TFSV and the criminal law (both in Australia and internationally) and critically examine
legislation as well as case law. We argue that although perpetrators can be prosecuted
under existing criminal laws, these laws are often ill-equipped to capture the gendered
harms resulting from these behaviours. Part of the issue, we argue, concerns laws pacing
problem. Law has typically been slow to respond to the emergence of new technologies
as tools of abuse. Existing laws are often inconsistent, outdated and poorly enforced
across state, territory and federal jurisdictions in Australia (Henry and Powell, 2015a).
Moreover, law is often treated as the most effective, if not sole, remedy for such harms.
Although we focus specifically on the role of criminal law, we conclude the article by
arguing that attention must be given to broader measures both within and beyond law
to tackle the problem of digital abuse and violence.
In the article, we first conceptualize the phenomenon of TFSV as a form of gender-
based violence. We then explore a range of different behaviours that are encompassed
under this term and the array of existing criminal laws for responding to each of these
behaviours.
TFSV and Harassment: A Continuum of Gendered Violence

Although there is currently a lack of empirical data on the prevalence of online forms of
sexual violence and harassment, and as such little is known about the gender of victims
Henry and Powell 3
and perpetrators, or the causes of these behaviours, we hypothesize that TFSV is a gen-
dered phenomenon for three interconnected reasons. First, research to date supports the
theory that although not the exclusive victims of violence, women and girls are the main
targets of online digital sexualized violence. Studies on sexting, for instance, show that
young women are more likely than young men to send explicit images of themselves (via
mobile phone or other means) as a result of pressure or coercion from their male partners
or peers (Drouin et al., 2015; Ringrose et al., 2012). Other studies suggest that women
and girls are the primary targets of the non-consensual distribution of intimate images
online (revenge porn) (Citron and Franks, 2014; CCRI, 2014). Research also consistently
points to the prevalence of sexual violence in offline contexts, where women and girls
are disproportionately the victims of sexual harassment, domestic violence and sexual
violence (see e.g. ABS, 2006, 2013; Heenan and Murray, 2006).
Second, the impacts of these behaviours are gendered because women and girls may
experience adverse impacts due the persistence of outdated myths and expectations sur-
rounding sexual norms and expectations for women specifically.1 And third, regardless
of the gender of the perpetrator (or indeed the victim), a key factor underlying the perpe-
tration of sexual violence is the social and structural context of gender hierarchization
a historically constructed pattern of power relations between men and women and defini-
tions of femininity and masculinity (Connell, 1987: 9899).
In this article, we claim that TFSV is fundamentally an issue of gender. We acknowl-
edge that men and boys are also subjected to TFSV and that these harms are likewise
significant. Nonetheless, it is important to note that women and girls may be targeted for
particular forms of digital abuse (e.g. sexual assault or revenge porn) precisely because
of their gender and the perpetrators intention to slut-shame. We also acknowledge the
adverse impacts on already marginalized members of the community on the basis of gen-
der, sexuality, race and religion. In perhaps the majority of cases of TFSV, whether
against male or females, or members of particular ethnicities, races, religions, or gender
identity or sexual orientation, the motivation for the behaviour stems essentially from the
objectification and debasement of the other as many of our examples throughout the
article show.
In our discussion, we categorize these different behaviours in turn and give an expla-
nation as to how criminal law has addressed these harms, taking into account the scope of
law (what is/is not covered); the extent to which legislation captures the unique harms of
digital abuse; and any outstanding issues. We acknowledge that there are significant
overlaps between these different categories.2
Dimensions of Digital Sexualized Violence

Revenge Porn: The Distribution of Sexual or Intimate Images Without Consent
The terms revenge porn, non-consensual sexting, involuntary porn (Burns, 2015) and
non-consensual pornography (Citron and Franks, 2014; Franks, 2015) are used inter-
changeably to refer to the distribution of sexually explicit or intimate images (photos
or videos) without the consent of the subject.3 In some instances, the victim has taken
the image herself/himself (a selfie), or consented to someone else taking the image
of them, but has not consented to its distribution. In other cases, images have been doc-
tored by superimposing the face or identity of a victim onto an existing pornographic
image, or intimate images have been hacked from the victims computer or mobile
device. In further cases, nude or semi-nude images have been taken when a victim is
asleep, unconscious, alcohol or drug affected and/or during a sexual assault and then dis-
tributed among peer networks or shared online (see e.g. Powell, 2015, and discussion
below).4
In one Australian case, a man threatened to distribute a topless photo of his victim in
order to coerce her to have sex with him after she told him she wanted to end their casual
sexual relationship (Bryan, 2015). Other instances involve the more conventional or
paradigmatic revenge porn cases, including a 2010 New Zealand case where the accused
posted a nude photo of his ex-girlfriend on Facebook after having logged into her
account, uploaded the image, unblocked her privacy settings and then changed her pass-
word (Stuff, 2010). Similarly, in the first social networking-related conviction in Austra-
lia in 2012, a Sydney man received a 6-month jail sentence after posting six nude images
of his former girlfriend on Facebook (Police v. Ravshan Usmanov, 2011, NSWLC 40).5
In the former case, the accused was charged with an indecency offence (morality and
decency), and in the latter case, the accused was also charged with an indecency offence
(publishing indecent articles). By way of comparison, in the United Kingdom in July
2015, a 21-year-old man became the first person to be convicted under the new revenge
porn legislation after sending intimate images of a woman to her family and sharing them
on Facebook (BBC, 2015).
The term revenge porn is a misnomer since not all perpetrators are motivated by
revenge (Franks, 2015) and not all content constitutes or serves the purpose of porno-
graphy. First, in relation to motivations, whilst the paradigmatic revenge porn scenario
might be of a scorned and spiteful ex-lover posting images of his or her former partner
onto mainstream or ex-girlfriend pornography sites, or imageboard and social media
sites, not all perpetrators distribute images out of vengeful motivations. The term
revenge porn is inadequate to describe many situations where intimate or explicit images
are being distributed for reasons such as coercion, blackmail, fun, sexual gratification,
social status or monetary gain. For individuals who solicit images on dedicated revenge
porn threads within online communities (such as reddit, 4Chan or 8Chan), or for those
who provide online platforms for the distribution of explicit images, revenge might not
be a motive at all.6 The term is furthermore inadequate to capture the harm caused where
the distribution or threat of distribution of an explicit image is deployed as a means of
intimidating, silencing or otherwise extending power and control over victims of domes-
tic and sexual violence (Henry and Powell, 2015a).
The second issue with the terminology both revenge porn and non-consensual por-
nography is that the focus is on the content of the image, which is framed as pornogra-
phy, regardless of the image or the intent of the original creator of that image. Whilst this
may fit with Dworkin and MacKinnons (1984: 321) definition of pornography as the
graphic sexually explicit subordination of women, it fails to recognize that many images
are not per se sexually graphic (e.g. mid-dressed or shower shots). Moreover, labelling
the distribution of non-consensual images, pornography has the potential both to mini-
mize the harm done to victims and to liken the images to an acceptable and/or desirable
Henry and Powell 5
subgenre within commercially produced online pornography. As Rackley and McGlynn

(2014) also note:
[t]here is a danger that the framing of this form of harassment and abuse as pornography
shifts attention away from the motivations and actions of the perpetrators of the abuse and
onto the content of the image and actions of the victim.
Of course, pornography, it is widely agreed, is notoriously difficult to define due the

sheer diversity of sexualized content and the interpretation of that content (e.g. whether
the intention or effect is sexual arousal). What constitutes pornography will very much
depend on the production, distribution, or reception (Andrews, 2012: 460) and
although some images will be produced, distributed and received specifically as porno-
graphy, many images fall outside of this frame. Again, like images taken and distributed
of intimate partners without their consent where the purpose is humiliation and not sex-
ual gratification (e.g. in the context of domestic violence), the content does not generally
serve the purpose of pornography and indeed the images may have been taken in the con-
text of a loving relationship.
Some have instead suggested that revenge porn is a form of sexual assault or cyber
rape.7 Whilst there are issues defining revenge porn in these terms (as either pornogra-
phy or sexual assault/rape), no other term to date has proved satisfactory to capture the
types of behaviours that emerge under this category. One alternative term is image-
based sexual exploitation (see Powell, 2009, 2010). This mirrors debates regarding child
exploitation material, which uses this term to distinguish it from pornography but yet at
the same time highlights the harmful circumstances of its production and the continued
harm associated with its dissemination. First, image-based sexual exploitation captures a
wide variety of motivations driving the non-consensual distribution of intimate images,
including that of revenge. Second, such images themselves need not be pornographic per
se but rather are used as a form of sexual exploitation (e.g. for sexual gratification, coer-
cion, humiliation, revenge and other reasons). And third, this term captures a broader
range of contexts where the image was originally produced, thus including situations
where the victim has taken a selfie and has shared it with someone else, but has not con-
sented to any broader forms of distribution. Such a term can also encapsulate situations
where the perpetrator or someone else takes the image or when a victim does not know
they are being filmed or photographed. Although we prefer this term for the above-
mentioned reasons, we nonetheless continue to use revenge pornography in this article
due to its popular use in public and academic discourses.8
In response to the increasing prevalence of revenge pornography, as well the growing
appreciation of the significant harms and impacts on victims, a number of jurisdictions
have introduced specific legislation to criminalize the non-consensual distribution of
intimate images. These include the Philippines (2009; maximum (max.) sentence 7
years), Israel (2014; max. sentence 5 years), Japan (2014; max. sentence 3 years),
Canada (2014; max. sentence 5 years)9, the United Kingdom (in England and Wales)
(2014; max. sentence 2 years)10 and New Zealand (2015; max. sentence 2 years).11 At
the time of writing, in the United States, 25 states had passed some form of revenge porn
legislation.12
In Australia, Victoria is the only state or territory in Australia to have a specific

offence that makes it illegal to maliciously distribute, or threaten to distribute, intimate
images of another person without their consent (2014; max. sentence 2 years; section
41DA and section 41DB, Crimes Amendment (Sexual Offences and Other Matters) Act
2014 (Vic)). South Australia has broader legislation making it a criminal offence to
distribute without consent an invasive image (2013; max. sentence 2 years; section
26C, Summary Offences (Filming Offences) Amendment Act 2013 (SA)). At the Com-
monwealth (federal) level, whilst there is no specific criminal offence in place, broader
telecommunications offences can and have been used in relation to using a carriage
service to menace, harass or cause offence (section 474.17, Crimes Legislation
Amendment (Telecommunications Offences and Other Measures) Act (No. 2)
2004).13 In all other Australian states and territories without specific legislation,
options for criminal charges include stalking (where a course of conduct needs to be
established), blackmail, voyeurism or indecency. These existing criminal offences are
ill-suited to the diverse types of behaviours that are captured under the label of revenge
pornography. Moreover, prosecuting offenders under indecency or obscenity offences
implies problematically that the images themselves are offensive rather than the per-
petrators behaviour.
The introduction of specific revenge pornography criminal legislation regardless
of jurisdiction raises four key issues. The first concerns the nature and content of the
image. Different jurisdictions use a range of terms, including intimate images, pri-
vate sexual material, nude or semi-nude images and sexually explicit images.
However, whilst in many cases, the law specifies that private, sexual or intimate
images must be those not of the kind ordinarily seen in public and must be what
a reasonable person would consider sexual, in practice it is not clear what would
constitute a sexual or intimate image (McGlynn and Rackley, 2015). The Victorian
legislation, for example, defines intimate image as a moving or still image that
depicts (a) a person engaged in sexual activity; (b) a person in a manner or content
that is sexual; or (c) the genital or anal region of a person, or, in the case of a
female, the breasts.
It is unclear whether images that a reasonable person in the community might not
consider either intimate or sexual would actually be covered by these divergent laws. For
instance, would existing laws criminalize the non-consensual distribution of an intimate
image of a Muslim woman in her underwear without her hijab on (Yosufzai, 2015)?
Similarly, it is unclear whether female breasts include cleavage shots and whether
transgender or intersex persons are also protected under such legislation. We contend
that the law should take into account the nature and content of the image, the degree
to which the distribution affects the privacy of the person, as well as the degree to which
the distribution of images violates that persons communitys standards of acceptable
conduct.
The second issue concerns the intention of the perpetrator. Some jurisdictions require
that the accused must have distributed the image with the specific intent to cause emo-
tional distress, whilst others require malicious intention or, alternatively, proof of harm
to the victim. As noted above, perpetrators may have diverse motivations for distributing
private sexual images without consent, including revenge, coercion, humiliation,
Henry and Powell 7
blackmail, sexual gratification, social notoriety and financial gain. Many perpetrators
then do not necessarily have the intention to cause harm or emotional distress. This poses
a challenge to legislators: Should laws apply to third parties who do not know that the
image was originally distributed without consent but who then goes on to distribute the
image? Or should the laws only apply if the person knows, or has reason to know, that the
other person did not consent to the distribution of the image? As legal scholar Citron
(2014: 15) claims, [i]t should not be a crime, for instance, to repost a strangers nude
photos having no idea that person intended them to be kept private. That does not mean
it is ethical to do so however, the law should only capture those who knowingly betray
another persons privacy or those who were reckless to whether or not the person con-
sented to the distribution of the image (e.g. they did not give any thought to it). More-
over, whilst proving intent to cause harm or distress might be relatively
straightforward in some cases, in others, the difficulty of proving intent of the original
distributor of the image, as well as others who repost and distribute the images, may
serve as an obstacle to successful revenge porn convictions (McGlynn and Rackley,
2015).
A third issue concerns the harms of revenge pornography and whether this could
replace or supplement the mental element of the accused in specific legislation. It is
important to acknowledge that in some instances, there may be little or no harm to the
subject of the image. Conversely, in other situations, there may be adverse and far-
reaching physical, psychological, social and financial consequences for victims, includ-
ing risks to personal safety due to stalking and/or further domestic violence; shame and
humiliation; altered relationships with others; reputational damage; loss of employment
prospects; victim blaming; withdrawal from social life and low self-esteem and paranoia
among a whole range of other afflictions (see Citron and Franks, 2014). Therefore, we
argue that the introduction of specific criminal legislation is important to acknowledge
the harms associated with the non-consensual distribution of intimate images. In the
absence of legal frameworks to address this serious and emerging issue, victims, perpe-
trators and the community more generally will continue to place the blame on women,
and in the process, exacerbate existing psychological and social harms.
Finally, the fourth issue surrounding the criminalization of revenge pornography con-
cerns the platform or medium in which such images are shared and distributed and how
they are shared. For instance, does revenge pornography only include images distributed
in online form? Does distribution also encapsulate the showing or sharing of these
images (e.g. a person showing a video or photo on their mobile phone to another person)?
In some jurisdictions, it is made clear that images include photograph or film sent as text
messages, distributed on social networking sites or distributed in offline form. This indi-
cates that although revenge pornography is an emerging issue due to the development of
new technologies, it is not actually a new phenomenon as people have been distributing
intimate images without consent prior to the advent of smart phones and social media.
Furthermore, there is some debate about whether website operators should have
immunity from prosecution (Cecil, 2014; Franklin, 2014). In Australia, under proposed
federal legislation, website operators would be liable for up to 5 years if they possess,
control, produce, supply or obtain for commercial purposes or some kind of benefit pri-
vate sexual material for use through a carriage service (Criminal Code Amendment
(Private Sexual Material) Bill 2015). In other words, the onus is on the website operator
to take all steps to ensure that another person providing the image has verified that they
own the image and/or that the image is being distributed with the subjects consent. It
should not be enough for websites to simply provide victims with an option of requesting
their images be removed from their websites. In October 2015, for instance, Pornhub, the
largest pornography site on the Internet, announced a reporting option for victims of
revenge pornography but did not take the extra step of requiring uploaders to verify
images are consensual (Brown, 2015).
Although there are a range of existing civil avenues available to victims (including
under civil laws such as anti-discrimination, copyright, breach of confidence and defa-
mation), neither civil or criminal laws adequately protect or provide a remedy for victims
of revenge pornography. This is for three key reasons. The first is that the costs associ-
ated with civil litigation may be overly burdensome for the average victim who may not
have the financial means to bring civil action under existing laws. The second reason is
that existing criminal offences that are not specific to revenge pornography behaviours
do not capture the harms of revenge porn or provide an effective deterrent against these
behaviours since in the absence of legislation, perpetrators may not know that the non-
consensual distribution of intimate images is a wrong. And third, neither new nor exist-
ing civil or criminal laws are capable of stopping the spread of the image once it has been
posted online (see Citron and Franks, 2014).
Although some legal experts in the United States have argued that existing criminal
offences are sufficient to capture revenge porn behaviours (see e.g. Budde, 2014; Stokes,
2014), there has been increased pressure on lawmakers to introduce specific criminal
legislation in Australia and elsewhere. Citron and Franks (2014: 349), for example,
argue that specific legislation is important to convey the proper level of social condem-
nation for this behaviour. The benefit of specific legislation is that it captures beha-
viours in the context of intimate partner violence (where the behaviour is part of an
overall pattern of intimidation and abuse) and those outside the domestic violence frame.
Specific legislation also has expressive value, sending a signal to the community that
such behaviours are abhorrent and deserve to be punished accordingly. The potential out-
come may be a move away from victim blaming.
These laws may also have a positive impact through better articulating community
standards about digital exchanges. One example is corporate levels of responsibility,
including website policies on unsolicited images. In 2014, for instance, reddit announced
a ban on the posting of sexually explicit images of a person without their consent after it
was heavily criticized for allowing the distribution of hacked nude photos of Hollywood
actors. In March 2015, Twitter followed suit, banning the posting of unauthorized sexual
images (individuals who do so will have their accounts locked and users will be required
to delete the content before they can return to using the site). In June 2015, Google
announced a new reporting mechanism for victims who can now request images of them
be excluded from Google Internet searches. In July 2015, Microsoft announced a similar
function that will enable victims to have content removed from its Bing search engine
and on its OneDrive and Xbox Live cloud services. Finally, as mentioned above, Porn-
hub, in October 2015, also introduced a process that allows victims to request their
images be taken down from the site.
Henry and Powell 9
These developments, we contend, are further reminders of the importance of action

beyond the law to address the growing problem of TFSV. But most pertinently, together
changes in laws and policies at different levels demonstrate the importance of a multi-
faceted approach to this issue. Yet one of the most pressing issues concerns the persis-
tence of sexually explicit or intimate images in cyberspace post-distribution and the fact
that many existing laws have very little impact on whether the content is removed, par-
ticularly since many sites where the images are hosted are based outside the victims
country. As the Internet readily enables re-blogging and reposting, it may be impossible
to retract the image once it has been distributed. This is another reason why it is impor-
tant to look beyond law and to focus energies on primary prevention measures as well as
the development of codes of corporate and user responsibility and accountability for
tackling revenge pornography and other forms of digital violence.
The Recording and/or Distribution of Sexual Assault Images

Whilst revenge pornography is currently receiving much attention internationally, it is
only one form of technology-facilitated image-based abuse. Another emerging beha-
viour concerns the recording (creation) and/or distribution of sexual assault images.
The 2012 Steubenville Ohio case is one recent example. In that case, an incapacitated
16-year-old girl was raped by two high school football players over a 6-hour period at
various locations. The rapes were recorded and then distributed via mobile phones and
websites, such as You Tube and Instagram. Two of the perpetrators (Malik Richmond
and Trent Mays) were convicted in juvenile court for the rape of a minor and distributing
child pornography. Three adults were indicted for tampering with evidence and the
obstruction of justice and two young women pled guilty to aggravated menacing charges
in relation to tweets they sent threatening the victim (Welsh-Huggins, 2013).
The Steubenville case garnered enormous media attention, in part because of the
biased and victim blaming media reporting of the case but also because of the unprece-
dented role that social media played in both the collection of evidence and the collective
outrage towards the event itself and the reaction to it. Although the dozens of individuals
who recorded and/or distributed the images onto social media sites were not prosecuted,
in court the mobile phone images and text messages helped to initiate the prosecutions
case as well as provide evidence. Moreover, these images revealed the role of bystan-
ders who stood by and callously recorded the violence and then distributed the images
via mobile phone and social media. In addition to the behaviour of the two accused and
the authorities indicted for obstructing the course of justice, this was further proof of
the problematic culture of rape that allowed not only such an incident to happen in the
first place but also allowed the abuse to be captured, disseminated and voraciously con-
sumed (Powell, 2015).
A surprisingly similar example concerns both the creation and distribution of images
of simulated sex acts by US soldiers (sodomy, oral sex and bondage) forced upon Iraqi
prisoners at Abu Ghraib during the war in Iraq in 2003. Although the acts themselves
have been widely condemned as homophobic, racist, misogynist and imperialist, as Puar
(2004: 531) suggests:
. . . what is exceptional here is not the actual violence itself, but rather the capture of these
acts on film, the photographic qualities which are reminiscent of vacation snapshots, mem-
entos of a good time, victory at last, or even the trophy won at summer camp. (emphasis
added)
He states that the dissemination of these images is like pornography on the Internet
. . . perpetuating humiliation ad nauseum. Like the Steubenville case described above,
although prisoner abuse photographs helped to establish evidence for the criminal
charges against 11 US soldiers for dereliction of duty, maltreatment, aggravated assault
and battery (including a 10-year prison sentence for one soldier) and the demotion of the
commanding officer, the continual reproduction of the images on television, in newspa-
per reports and even in academic publications, has received comparably little condem-
nation and censure. Indeed, the only existing laws that can apply, at least in the countries
mentioned above, are in fact revenge porn laws or already existing laws surrounding
indecency or the use of a carriage service to menace, offend or harass. However, in mul-
tiple jurisdictions that have specific criminal laws in place, the accused must have
intended to cause distress or harm. Therefore, if a person records a sexual assault and
then distributes these images in the absence of intending the distribution to cause distress
or harm, but for other motivations (e.g. to gain social status or kudos among peers or to
draw attention to human rights abuses), then such legislation may simply not apply
(Franks, 2015).
Another issue concerns whether the covert filming and distribution of consensual sex
constitutes a sexual assault or a rape under existing criminal law legislation. Consider,
for example, the Australian Defence Force Academy (ADFA) Skype Scandal, where
a male cadet secretly broadcast otherwise consensual sex with a female cadet via Skype
so that five of his peers could watch from another room without her knowledge or con-
sent. One of the two accused, Daniel McDonald, was found guilty in October 2013 under
the Australian Commonwealth telecommunications legislation, including sending offen-
sive material over the Internet and a related indecency offence (see Byrne, 2013). Whilst
the convictions recognize that the broadcasting of sex without consent was offensive
and indecent, they do not adequately acknowledge the harm experienced by the victim.
It is arguable that the victims consent was vitiated by the deception involved in broad-
casting the sexual encounter without consent. This is not dissimilar to other forms of sex-
ual activity by fraud or deception cases in Australia and internationally, where
convictions for rape have been successful despite the original consent of the victim to
the act itself (see e.g. Crowe, 2011, 2014; Syrota, 1995). However, such an approach
is not without limitations. For instance, some legal scholars suggest there is the potential
to inadvertently minimize the harms of rape as a physical, sexual violation, if the psy-
chological harms of sexual activity by fraud or deception are included under the same
offence category (see Roffee, 2015). This suggests, perhaps, that a separate sexual
offence may be needed to address the harms to victims in such instances.
In summary, the term revenge porn is inherently flawed to capture the motivations of
the accused persons who create and distribute images of sexual assault. These recordings
and their distribution may well be for human rights or evidence-gathering purposes (e.g.
in wartime), yet little attention has been given to the ethics or criminality of reproducing
Henry and Powell 11
torture images in this field. It is thus important to scrutinize these acts and to consider the
harms done to victims when violent images are distributed, regardless of the intention of
the distributor. Likewise, it is important to explore whether amendments are required to
existing sexual offences legislation to specifically criminalize the recording and/or dis-
tribution of sexual assault (see Powell, 2010).
Technology-Facilitated Sexual Assault and Coercion

Online technologies such as mobile phones, email, social networking sites, chat rooms
and online dating sites (among a range of other platforms) are also being used by sexual
predators as a means of facilitating a rape or sexual assault, representing a further exam-
ple of TFSV. Indeed, there are at least three forms of online sexual coercion or sexual
assault via digital technologies that are emerging in media reports and case examples.
First, where a perpetrator befriends the victim online through a mobile phone app, social
network or online dating site before then meeting them in person and sexually assaulting
them. For example, in June 2012, popular social networking site Skout suspended
accounts of under-18s after a number of sexual assaults were carried out by adult perpe-
trators against underage victims (e.g. Perlroth, 2012). In July 2014, a 22-year-old man
was arrested on a rape charge in Louisiana after allegedly raping a woman he had met
on the dating and hook up app Tinder (Hodges, 2014). In September 2014, an Irish
woman in her 30s reported having been raped after meeting a man, also in his 30s, on
the Tinder app (McMenamy, 2014). In 2015, Tinder was once again under the spotlight
after users alleged that the app is helping sexual predators to contact and groom underage
youths (Huynh, 2015) as well as numerous adult assaults (Shadwell, 2015).
A further example concerns sexual coercion and sextortion, a form of non-physical
coercion where a person procures sexual cooperation by putting some kind of pressure
on a victim (Barak, 2005: 80). This can take the form of eliciting private information or
a sexual image from a victim and using this material to blackmail, bribe or threaten the
victim to engage in either virtual or in-person sex acts. A third example concerns a form
of rape by proxy (see Frosh and Dumais, 2014; OConnor, 2013), where communica-
tions technologies are employed to solicit a third party to sexually assault a person,
whether through deception, including false or mimicked identity, or more direct means.
Such has been the context of a number of cases reported in the media where a perpetrator,
often a male ex-intimate partner, has placed advertisements in online classifieds or com-
munity forums inviting others to rape a victim, either by posing as the victim or through
direct requests. For instance, in December 2009, a Wyoming (US) man placed an adver-
tisement on Internet classifieds site Craigslist posing as his ex-girlfriend and asking for
a real aggressive man with no concern for women (Correll, 2010). According to media
reports, one week later, a man who had responded to the advertisement forced entry to
the victims home and raped her at knifepoint. Whilst an extreme example, the use of
dating apps, online classifieds and community forums to facilitate sexual crimes is an
issue regularly featured in media reports (see Furness, 2012; Meyer, 2012; Noonan,
2011), though currently there is little empirical data on the prevalence of attempted
and/or completed rape via such means.
Sexual assault, whether facilitated by communications technology or otherwise, is

already subject to criminal legislation in all common law countries. As such, the extent
to which these behaviours can be understood as new harms requiring amendment to
existing laws, or are simply sexual assault by a different means, is worthy of interroga-
tion. To some extent the manner through which a perpetrator accesses and grooms both
young and adult victims does not change the criminal nature of the contact offence itself.
Some jurisdictions are responding to the disturbing trend of rape by proxy by considering
criminal offences addressing communications that solicit others to commit a sexual
offence. For instance, in Maryland (US), a Senate Bill was passed (SB50, 14 April
2014), which prohibits a person from using the identity of an individual without consent
to invite, encourage or solicit another to commit a sexual offence against another person
(see also Frosh and Dumais, 2014). The sexual felony offence, with a 20-year maximum
penalty, recognizes the harm of such an act, regardless of whether a rape was ultimately
committed (at which point existing offences including aiding and abetting a rape would
apply). Furthermore, the mode of facilitation itself raises consideration of whether third
party service providers, such as dating applications, online classifieds and community
forums, ought to be required to take more proactive measures to address the risk that
their service is used to facilitate a sexual assault. For example, in many media reports,
perpetrators have used fake profiles either to misrepresent their age for the purposes
of targeting young victims and/or in an attempt to avoid detection (e.g. Inman, 2014; Por-
telli, 2015). Such cases suggest that service providers should consider more rigorous
approaches to confirming individuals identities linked to their profiles on such apps and
sites.
Cyberstalking and Criminal Harassment

The final example of TFSV concerns cyberstalking. Although there is no single and uni-
versally agreed-upon definition of cyberstalking in the international research literature,
Reyns et al. (2012: 1153) describe it as the repeated pursuit of an individual using elec-
tronic or Internet-capable devices. Such a definition is useful as it is inclusive of a wide
range of behaviours, whether perpetrated via mobile phone, email, instant messages, chat
services, online discussion or bulletin boards as well as social media or other digital tech-
nologies. Cyberstalking includes repeated unwanted communications; repeated
unwanted sexual advances or requests; repeated threats of violence; as well as surveil-
lance and monitoring of a victims location, daily activities and/or communications,
whether facilitated by cameras, listening devices, computer software and mobile phone
applications, or global positioning system (GPS) location information (see Reyns et al.,
2012; Spitzberg and Hoobler, 2002).
Whilst cyberstalking encompasses a range of digitally abusive behaviours that may be
perpetrated by intimate partners, sexual or dating partners, acquaintances and strangers
alike, research nonetheless suggests that perpetration and victimization are gendered in
particular ways. For example, whilst men also report stalking victimization, research and
crime data suggest that such victimization may be less common, is more likely to be per-
petrated by a stranger or acquaintance rather than by a partner or former partner and
causes less fear for male victims compared to female victims (see e.g. Logan, 2010;
Henry and Powell 13
Wigman, 2009).14 For women in particular, there appears to be much overlap between
cyberstalking and more conventional forms of stalking in terrestrial or offline spaces,
though there are also some apparent differences (Nobles et al., 2014). Cyberstalking, for
instance, when occurring in intimate partner violence contexts, might represent one com-
ponent of a broader pattern of abuse where male perpetrators use multiple strategies to
monitor, control, harass or threaten their often female victims (Diette et al., 2014; South-
worth et al., 2007; Woodlock, forthcoming). One notable difference made by electronic
communications and other technologies is that a stalking perpetrator can potentially have
constant access to their victims, extending the feelings of exposure, vulnerability and
fear of victims (Diette et al., 2014). Indeed, technologies give perpetrators easy access
to their victims, explaining why, in a recent survey of domestic violence advocacy work-
ers (DVRC, 2015), 98% of survey respondents said their clients had experienced some
form of technology-facilitated stalking and abuse. It is important not to overlook the qua-
litative differences between offline and online forms of stalking in terms of harms or
impacts on victims. As stated by the US National Network to End Domestic Violence
(NNEDV) (2015) Safety Net Project, Intimidation, threats, and access of information
about victims arent new tactics . . . However, the use of technology as a tool . . . means
that the harassment and abuse can be much more invasive, intensive, and traumatising
(emphasis added).
Laws criminalizing stalking, whether in physical space or by electronic means, often
require three core elements: a course of conduct (or repeated behaviours over time) that
is intrusive and/or unwanted and that threatens to harm or cause fear of harm to victims
(Spitzberg and Hoobler, 2002). For example, in Victoria (Australia) under the Crimes
Act 1958 (Vic), stalking is defined as a person engaging in a course of conduct which
causes apprehension and fear and includes any of the following behaviours: contacting
the victim by any means; publishing on the Internet or by email, or other electronic com-
munication to any person or statement or other material about the victim; tracing the vic-
tim through electronic communication; keeping the victim under surveillance; and a
number of other acts. Whilst such legislation would appear to capture the harms of stalk-
ing in the specific context of intimate partner violence, there are some limitations with
the framing of both a course of conduct and causes apprehension and fear in the context
of emerging forms of digital harassment and abuse. Foremost of these is that some single
or one-off actions (such as posting a revenge pornography image alongside identifying
information and an invitation to others to contact, harass or rape the victim) may in and
of themselves cause considerable apprehension or fear in a victim. Second, continuing
with this particular example, the one-off action may in turn encourage and result in
subsequent harassment by third parties, or the extensive distribution of the harassing
content, such that the impact of the single act results in a series of actions by others.
Alternately, a repeated course of invasive conduct, such as repeatedly posting offensive,
malicious, or personal information about a person, might be humiliating, shameful or
harassing, but not cause fear or apprehension. In the United Kingdom, for instance, a
summary offence of criminal harassment exists as a separate offence to stalking to
address such instances where a course of conduct is harassing but does not cause fear
of violence, distress or alarm (see section 2 and section 2A, Protection from Harassment
Act 1997 (UK)).
Further limitations of conventional stalking offences are brought into even sharper
focus when considering other, non-partner stalking or harassment-type behaviours that
have emerged in cyberspace. In online forums, games environments, email and social
media, for example, women and men appear to be increasingly targeted with threatening
language, threatening images (sometimes simulating a violent assault) and the posting of
identifying and/or private information (also known as doxing). Some scholars have
gone further to identify the online harassment and abuse directed at women in particular
as gendertrolling (Mantilla, 2013), misogynist e-bile (Jane, 2014) and sexist or
gender-based hate speech (Lillian, 2007).
Whilst much sexist trolling or hate speech might be more readily addressed in civil
laws (and is thus beyond the scope of this article), there are further offences of criminal
harassment that may apply in some instances where the hateful speech includes threats
directed at an individual. Many jurisdictions also include specific criminal offences
regarding communicating threats to kill or inflict bodily harm, such as in Australia at the
federal level (e.g. section 474.15 of the Criminal Code Act 1995 (Cth)). In Victoria, an
offence regarding threats to commit a sexual offence (section 43, Crimes Act 1958
(Vic)), includes where a person (A): makes to another person (B) a threat to rape or
sexually assault B or a third person (C); and . . . A intends that B will believe, or believes
that B will probably believe, that A will carry out the threat (emphasis added).
One of the problems with online threats to kill, rape or inflict bodily harm is that
despite causing subjective fear, alarm or distress for a victim, such threats are not always
taken seriously as credible or real threats. For example, in New South Wales (Aus-
tralia), in order to meet the requirements of the threat to kill offence, the threat must
be communicated such that a reasonable person would take it to represent an actual pro-
posal to kill or harm and that a merely hypothetical proposal will not suffice (R v.
Leece, 1995, 78 A Crim R 531, Higgins J, at para. 536; emphasis added). Similar reason-
ing has been applied to cases in other jurisdictions internationally, including a significant
recent US Supreme Court decision, in which it remains unclear whether threats to harm
made online (such as via Facebook), may constitute real threats that a reasonable per-
son would expect to cause fear and are therefore not protected free speech.15 Whilst the
assumed distance of a harasser making threats to kill or rape on social media might lessen
the risk of actioning violence,16 for targets of such threats, the anonymity or diffused
identities of online harassers means that their proximity, connection to the victim,
and/or capacity to act on the threat are all unknowns. This in turn has the potential to
cause heightened fear.
As in the other behaviours explored here, cyberstalking is an emerging and increas-
ingly common phenomenon that the law has struggled to keep pace with as the technol-
ogy has evolved. Many jurisdictions are yet to decide how to best capture the harms
of criminal harassment and cyberstalking in online spaces. The challenges of cross-
jurisdictional detection and punishment continue to loom large, as do the issues
surrounding the distinctions and crossovers between conventional forms of criminal
behaviour, and those emerging behaviours where technology not only serves as a tool
of abuse but can cause new harms and present real threats to psychical and bodily auton-
omy, integrity and freedom. Given the gendered nature of these various behaviours, it is
important to look to the criminal law as an important means of responding. However,
Henry and Powell 15
attention must also be given to a range of measures both within and beyond law, includ-
ing acknowledgement and action of the pervasive othering and objectification that
occurs in both offline and online spaces.
Conclusion
Whilst this article has focused on criminal law responses to various forms of TFSV, it is
important to emphatically state that law should not be seen as the sole remedy for these
offences. This is not only because increased criminalization poses a real challenge to
dealing with such harms but also because law is inherently modelled on a model of indi-
vidualized, depoliticized justice that fails to address the deeply embedded and underly-
ing (structural and individual) causes of gendered violence. As such, there should be
equal attention given to the policies and practices of service providers of online commu-
nities and social media networks and their responsibility to proactively address this prob-
lem by providing mechanisms for users to report offensive, hateful and/or harassing
content and dedicate sufficient resources towards monitoring and removing this content.
There are a range of other non-legal measures that can be developed to ensure the ethical
use of communications technology, including police and sector training around the
impacts of digital abuse as well as evidence gathering methods; clear community guide-
lines; clear, consequential and enforceable terms of use on Internet sites; greater care
from website providers to ensure customer safety (e.g. on dating sites); agreements
between police and service providers to facilitate the timely gathering of evidence; vic-
tim hotlines and other mechanisms to provide free and confidential advice; and educa-
tional initiatives and public awareness campaigns designed to foster ethical digital
citizenship. Above all, the onus should not be on victims or potential victims to ensure
their own safety. Instead, attention needs to clearly shift to perpetrator behaviours and
the development of community standards around ethical digital relationships.
There are some key and perplexing challenges that cut across both conventional and
technology-facilitated forms of sexual violence and harassment. The first is how to pre-
vent violence before it occurs. Such primary prevention measures include educational
programmes around respectful relationships or gender or sexuality which must, in addi-
tion to tackling gender dichotomies and inequalities, also focus on ethical digital inter-
actions (Henry and Powell, 2014). The second most important issue is that we must think
very carefully about how to respond to violence and injustice after it happens: what kind
of criminal laws are appropriate and do they capture the harms associated with online
digital abuse? What role do non-criminal laws play and non-legal mechanisms too?
We would argue that a multipronged approach is essential to tackling gender-based digi-
tal violence.
As Butler (2004) asks, how should justice be done? and what just do we owe to
others?. In relation to both primary prevention and justice responses, we suggest that
justice must be thought about beyond a perpetrator/victim paradigm. In other words, it
is vital to think also about the causes of violence, the measures we implement to prevent
this violence and the ways in which we respond when violence occurs as both a prob-
lem of individual and collective or societal dimensions. These two key challenges
demand we implement fundamental structural changes to the ways we think about
gender, sexuality and violence and the other in an ever expanding and shifting digital
age full of peril and promise.
Acknowledgements
We would like to thank Brent Collett for his research assistance, as well as Martha Piper, Alex
Davis, the journal editors and the two anonymous reviewers for offering extremely helpful sugges-
tions on how to improve the article.
Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship,
and/or publication of this article.
Funding
The author(s) disclosed receipt of the following financial support for the research, authorship, and/
or publication of this article: This research was funded by an Australian Research Council (ARC)
Discovery Grant (DP130103094).
Notes
1. See, for example, victim blaming comments and harassment about, and in some cases directed
towards, rape victims in online spaces (Armstrong et al., 2015). Such content has the potential
to further traumatize victims dissuade others (both men and women) from speaking out about
sexual violence as well as exclude women in particular from participation in increasingly hos-
tile online spaces. It is worth noting that women and girls, as well as men and boys, participate
in such victim blaming e-bile (Jane, 2014) and that whilst it appears that women are often the
primary targets, men also experience gendered and sexualized harassment (directed at their
masculinity and sexuality) in online spaces (see e.g. Cross, 2014; Higgin, 2015).
2. Because the article is specifically focused on criminal laws, we do not examine behaviours
that would be normally classified as unlawful behaviours under civil laws (such as
gender-based hate speech and online sexual harassment), although acknowledge that these
behaviours form part of the continuum of sexual violence (see Henry and Powell, 2014,
2015a, 2015b). We also do not examine child pornography legislation since our focus is on
adult victims and perpetrators.
3. The term sexting originates from the sending of text messages via mobile phones (before
camera-enabled phone technology), although now generally refers to the sending of text, still
images and film from mobile phones to other phones or to Internet sites. It is unclear, however,
whether the term is being used for the taking and distribution of images not involving mobile
phones. For a discussion of the problems associated with this term and the discourses sur-
rounding both consensual and non-consensual sexting, see Henry and Powell (2015a). For a
discussion of coercive sexting, see Drouin et al. (2015).
4. Such was also allegedly the case in the New Zealand Roast Busters case, in which a group of
young men self-disclosed via Facebook their sexual abuse of underage girls and reportedly
posted photos and videos to name and shame their victims, see: http://www.news.com.au/
world/police-let-down-victims-of-new-zealand-roast-busters/story-fndir2ev-1227271381744.
5. On appeal, the 6-month home detention sentence was overturned and was reduced to a sus-
pended sentence only.
Henry and Powell 17
6. For example, in a cyber exploitation case in a US court in California, U Got Posted operator
Kevin Bollaert received an 18-year sentence for extortion and identity fraud after running a
website that hosted 10,000 unauthorized explicit images with accompanying details of the vic-
tims full name, Facebook profile page and age, and then using another site (called change-
myreputation) to extort up to US$350 from individuals requesting to have their images
removed from his revenge porn site. Over a period of 10 months, Bollaert extorted
US$30,000 from victims. Bollaerts lengthy prison sentence was not because he had violated
Californias revenge porn legislation but rather because of extortion and identity fraud charges
(New York Times, 2015).
7. On the End Revenge Porn website, revenge porn is defined as a form of sexual assault that
involves the distribution of nude/sexually explicit photos and/or videos of an individual with-
out their consent. See http://www.endrevengeporn.org/revenge-porn-infographic/
8. We thus define revenge pornography as the non-consensual distribution of sexually explicit
or intimate images of another person without their consent, regardless of specific perpetrator
motivations or incentives, the interface or device, or the actual content of the material (e.g.
whether sexually explicit or intimate images).
9. Canadas law authorizes the removal of the images from the Internet, the recovery of expenses
incurred as a result of attempts to remove the images and the restriction on the perpetrator of
computer or Internet use.
10. At the time of writing, Scotland had introduced a revenge porn bill into parliament.
11. This law also includes an offence of refusing to remove the offending material.
12. States that have passed legislation include Alaska, Arkansas, California, Colorado, Delaware,
Florida, Georgia, Hawaii, Idaho, Illinois, Louisiana, Maine, Maryland, Nevada, New Jersey,
New Mexico, North Dakota, Oregon, Pennsylvania, Texas, Utah, Vermont, Virginia,
Washington and Wisconsin. Arizonas law was blocked after a lawsuit was filed by the Amer-
ican Civil Liberties Union in the US District Court on the basis that the law was unconstitu-
tional because it criminalized booksellers, artists, news photographers and historians. For an
update on US legislation (including a list of each states laws), see http://www.cagoldberglaw.
com/states-with-revenge-porn-laws. Some states have tougher punishment for these beha-
viours. Illinois, for example, classifies revenge porn as a felony, punishable up to 3 years
in prison and/or a fine of up to $25,000. The vast majority of US states, however, do not have
any civil penalties. Most US jurisdictions have wording to make exceptions in order to prevent
a revenge porn case being made by someone who has posed naked in a magazine or in another
commercial setting. The test is generally whether a reasonable person would have an expecta-
tion that such images would not be shown in public.
13. In October 2015, two Labor MPs introduced a private members bill into the Australian par-
liament (Criminal Code Amendment (Private Sexual Material) Bill 2015). Under the proposed
law, three new offences are created: a 3-year jail term for publishing or distributing private
sexual material without consent; a 5-year sentence for threatening to distribute material with-
out consent, regardless of whether the material exists or not; and a 5-year sentence for posses-
sing, controlling, producing, supplying or obtaining private sexual material without consent.
14. It is important to note that mens lower reported victimization and experiences of fear are
likely to be under-reported in light of normative gendered expectations. At the same time,
womens reports of experiencing fear carry particular weight in the context of experiencing
or leaving a physically violent relationship.
15. See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/01/the-supreme-

court-doesnt-decide-when-speech-becomes-a-constitutionally-unprotected-true-threat/ and
http://www.scribd.com/doc/267305404/Elonis-Free-Speech
16. Indeed, research suggests that intimate partner stalkers are much more likely to escalate to
using physical violence than stranger or acquaintance stalkers, though the latter are often
wrongly assumed to be more dangerous, see Scott et al. (2014) and Scott and Sheridan (2011).
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Sexual Violence in The Digital Age: The Scope and Limits of Criminal Law

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Article

Social & Legal Studies

Digital Age: The Scope sagepub.co.uk/journalsPermissions.nav

TFSV and Harassment: A Continuum of Gendered Violence

Dimensions of Digital Sexualized Violence

subgenre within commercially produced online pornography. As Rackley and McGlynn

Of course, pornography, it is widely agreed, is notoriously difficult to define due the

In Australia, Victoria is the only state or territory in Australia to have a specific

These developments, we contend, are further reminders of the importance of action

The Recording and/or Distribution of Sexual Assault Images

Technology-Facilitated Sexual Assault and Coercion

Sexual assault, whether facilitated by communications technology or otherwise, is

Cyberstalking and Criminal Harassment

Declaration of conflicting interests

15. See https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/01/the-supreme-

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