March 8 marks International Women’s Day. While the day is often considered to be a purely commercial observance celebrated with flowers and chocolates, it was never intended to be such. The first (national) women's day was celebrated in the US a little more than 110 years ago. On February 28, 1909, the Socialist Party of America designated this day in honor of the 1908 garment workers’ strike in New York where women protested against working conditions. 110 years have passed and women continue to fight for their rights, moving from one right to another, protesting issue after issue, fighting each battle one by one. 110 years and we are still not quite there yet. Challenges remain. Many have been addressed with diverse (and often inadequate) results over time, yet new challenges have emerged that, despite having the potential to affect everyone, affect women disproportionately.
For 2019 International Women’s Day, Doughty Street Chambers, a renowned human rights chambers from London, UK, organised an event entitled “What more can the law do for women?” The fully booked event explored contemporary challenges faced by women, including image-based sexual abuse, the dire situation of refugee women or victims of trafficking and the struggles faced by women who speak out about the abuse suffered.
While “revenge pornography” is the term often used by media, as Professor Erika Rackley from the University of Kent explained at the event, the term is not inclusive enough and may be misleading. Image-based sexual abuse concerns ‘‘non-consensual creation and/or distribution of private, sexual images.” The act is criminalized in England and Wales by Section 33 of the Criminal Justice and Courts Act 2005 as disclosing private sexual photographs and films with intent to cause distress. Some of the examples that may fall within the scope of the provision, aside from the above-mentioned revenge pornography, include cases of fake pornography, sextortion, pornographic photoshopping, non-consensual pornography, recording of sexual assaults.
Nonetheless, as Professor Erika Rackley warned, the use of the catchy term revenge pornography can discourage women from seeking redress. This is as, for example, if an instance of such abuse is not motivated by revenge, one may believe that there is nothing women can do in response. Raising awareness of the true scope and inclusiveness of the crime of image-based sexual abuse could encourage women to fight to enforce their rights.
As the Telegraph reports, between 2015 and June 2018, there have been 7,806 reported incidents of disclosing private sexual photographs and films with intent to cause distress in England and Wales alone. While this may suggest that the issue is of concern, one has to also account for many more that may not have been reported due to the stigma or associated shaming of the victims. Furthermore, 2,813 (of the 7,806) victims chose not to proceed because of the lack of anonymity.
Only a few months ago, the law in England and Wales was enriched by a new provision criminalizing “upskirting.” Upskirting is a form of voyeurism and refers to the act of taking sexually intrusive photographs up someone’s skirt without their permission, predominately in public places, including on the subway escalators. The act has been criminalized thanks to a campaign by Gina Martin who became a victim of upskirting at a festival.
Despite the various laws that could be used to address the acts, as Professor Erika Rackley suggested, the law is muddled, complicated and does not offer clarity. Aside from criminal charges, where applicable, it is possible to bring civil actions, including for breach of confidence, misuse of private information, protection from harassment and breach of data protection. This does not mean that such actions are simple. Indeed, very often such cases would be cross-border and hence (legally and procedurally) complicated and come with associated costs.
In order to assist with some of the challenges, McAllister Olivarius, an international law firm, is set to launch a web-based service pitched to the victims of image-based abuse, offering self-help tips and explaining their options. McAllister Olivarius acted on behalf of Chrissy Chambers who has won substantial damages in a landmark image-based sexual abuse case in the United Kingdom after a long legal battle for justice. Apart from being awarded damages, Chrissy Chambers was successful in being awarded the copyright of the videos created and posted without her consent. This gave her a weapon to demand hosting websites to remove the videos from their platforms.
The speakers at the Doughty Street Chambers event further considered the issue of why women continue to be shamed for acts perpetrated by others and why women continue to take a step back rather than take the legal route to defend their rights. Women continue to be blamed for taking the photographs, for having one drink too many, while the real perpetrators, those who publish or distribute the images (or take the photographs or videos without the women’s consent) with the intent to cause some harm, avoid the same stigma or shame. Furthermore, the complexity of the law, costs and also lack of anonymity act as deterrents allowing the perpetrators to continue unabated.
Another speaker who joined a panel on the issue of threats faced by women who speak up about the abuse they suffer was Amber Heard, an actress and activist. Amber Heard identified that some women are more affected than others by the ever-growing inequalities, “The rights of women from marginalized communities are far more threatened. Many women will quietly endure maintaining their dignity.” She called upon women to stand up and stand together. The shame and stigma associated with abuse must be placed with the perpetrator and not the victim. This part is not about changing the law but changing our perception and attitude towards victims of abuse.
While the issue of sexual and gender-based violence is not new, image-based sexual abuse is a new and growing phenomenon. It arises from the continued development of social media and how they are moderated. Many platforms do not take responsibility for the content uploaded by users. They shy away from responsibility for being the host and means of distributing such images or films.
In the last 110 years, since the first (domestic) women’s day, some important progress has been made to ensure women’s equal rights. These successes will erode if the suppression of women's equal rights is reintroduced by other means. It is crucial to engage in the debates about what needs to be done to ensure that the law provides for maximum protection from image-based sexual abuse. Such debates include the role of the internet and the responsibilities of social media giants and internet platforms. This is what more the law can do for women.
