Victims Of Revenge Porn During Divorce

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Victims Of Revenge Porn During Divorce

Something no one wants to think about is what would happen if they became a victim of revenge porn during divorce.

Unfortunately, family law proceedings are not exempt from this abusive practice.

Revenge porn is one of the more harmful phenomena that have come about since the beginning of widespread social media use.

“Revenge porn” is the more familiar term, but it is also known as image-based abuse or IBA.

It typically involves a person sharing intimate images or videos of their ex-partner online after a break-up.

Revenge porn is more common than you might realise: 1 in 5 Australians report being victims of image-based abuse.

 

Revenge Porn During Divorce

Divorce and family law are known for producing situations of high pressure, emotion and conflict.

Sadly, a divorce can create much bitterness in an already difficult process, and sharing images as revenge porn during divorce proceedings is a modern addition to the many threatening and spiteful actions some people may choose to take.

Motivated by revenge, ex-spouses have been known to withhold children from their former partner, alienate children from the other parent and even cause the court process to go on for longer so that their former partner has to spend more money.

Mechanisms are in place to combat this behaviour, such as recovery orders and the Hague Convention, which prevents international child abduction, and lawyers work hard to ensure their clients receive the results to which they are entitled.

Revenge porn during divorce is another technique to intimidate the other party.

It is abusive behaviour, a type of behaviour made easier with technology and social media, where images can be shared so quickly.

Revenge porn during divorce or at another time, including during a relationship, also includes the threat of sharing intimate images.

Section 4AB of the Family Law Act 1975 includes threats in the definition of family violence.

By threatening to release revenge porn during divorce negotiations, the victim then feels compelled to agree to a settlement or make a decision that is in favour of their ex-spouse, producing a wholly unfair result.

This is particularly problematic as the majority of family law cases are settled outside of court.

Revenge porn, or image-based abuse, it not acceptable, but because technology and society can move faster than legislation, the law is only just catching up.

 

Is revenge porn illegal?

Whether revenge porn is illegal depends on the legislation in your state.

There is no law criminalising revenge porn in federal legislation, however Victoria, South Australia, Western Australia and New South Wales have revenge porn laws.

The NSW criminal legislation that makes image-based abuse – whether that is, for example, revenge porn during divorce to harm an ex-spouse, threatening to send someone’s intimate images to a work colleague or posting intimate images stolen from someone’s device online – an offence is an amendment to the Crimes Act 1900 (NSW).

The Crimes Amendment (Intimate Images) Act 2017 (NSW) lists three offences that constitute revenge porn.

It is an offence:

“To intentionally

  • Record
  • Distribute
  • Threaten to record or distribute

 

An intimate image of another person, without that person’s consent.”

An “intimate image,” as defined in the amendment, is a photo or video that depicts another person in circumstances where one would reasonably expect privacy, including in acts that are sexual in nature or non-sexual in nature, such as showering and bathing.

“Consent” means that the person freely and voluntarily agreed to the recording and the distribution of the intimate image.

In some circumstances, a person cannot give consent, such as if they are under 16 years old or if they are asleep or unconscious.

The maximum penalty in New South Wales for committing an offence under the Crimes Amendment (Intimate Images) Act 2017 is three years in prison.

Other penalties include substantial fines.

The New South Wales criminal court also has the authority to order the person who committed the offence to remove, delete, destroy or otherwise get rid of the images they have illegally distributed.

In Western Australia, the court can authorise a Family Violence Restraining Order under the Restraining Orders Act 1997 (WA), which then legally prevents the restrained person from distributing or threatening to distribute intimate personal images of the person protected by the order.

Under South Australia’s Summary Offences Act 1953 (SA), distributing or threatening to distribute an “invasive image” of someone else without their consent or knowledge is an offence, as is filming someone in a humiliating or degrading way.

Similarly, in the Summary Offences Act 1966 (VIC) in Victoria, it is an offence to distribute or threaten to distribute an intimate image of a person without their consent.

 

More Than One Type of Revenge Porn

The archetypal perception of revenge porn is someone posting sexual images of their former partner online to get back at them after a break-up.

Because of this, other acts that constitute image-based abuse can get overlooked.

The Australian Government’s Office of the eSafety Commissioner describes the multiple behaviours that come under the title of image-based abuse, or revenge porn.

Sharing intimate images of someone is not always motivated by revenge and the images themselves are not always sexual.

Some other terms for image-based abuse are:

  • non-consensual porn
  • non-consensual sexual, nude or intimate image sharing
  • technology-facilitated violence
  • intimate image abuse
  • cyber exploitation
  • up-skirting, down-blousing or creepshots

 

The images and videos that a person may use for revenge porn during divorce can be real or digitally altered (for example with Photoshop) and can also be illustrated.

For example, if a person Photoshops their former spouse’s face onto another person’s naked body, such as an image taken from a porn site, and then shares or threatens to share this image, this is image-based abuse.

Image-based abuse can also include images or videos taken by a stranger without consent, also known as “creepshots.”

The circumstances of revenge porn do not always involve a person sharing or threatening to share images they had previously been sent.

If someone steals intimate images from another person’s device or cloud account, whether or not they hacked into the device or account, and then shares or threatens to share these images, this is image-based abuse.

Distribution does not have just one definition either.

Distributing intimate images is not limited to sharing these images on a social media site.

Sending intimate images of another person by email, on an instant message application, by MMS (multimedia messaging service) or on a photo-sharing app like Snapchat is image-based abuse.

 

Consent

Lack of consent is a key part of what makes revenge porn a crime.

This goes for revenge porn during divorce and in any other situation.

Consent is when someone clearly and freely agrees to do something.

Sometimes, people misunderstand the problem and think that a victim of revenge porn should never have taken the pictures or made the video in the first place.

A person can agree to make intimate images at one point in time, but this does not mean they agree to make any future images.

A person can agree to take and send an intimate photo to someone else, but this does not mean they agree to any further distribution of the photo.

 

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Emma Green
Emma Green
emma.green@student.uts.edu.au

Emma Green studies Communication and International Studies at the University of Technology, Sydney. She is finishing her degree and working as part of Justice Family Lawyers after returning from a year on exchange.

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