Criminal Justice and Courts Bill

Baroness Brinton Excerpts

Monday 21st July 2014 Lords Chamber

[Baroness Morris of Bolton (Con)]

My Lords, my noble friend Lady Berridge set out strongly the case for Amendment 40 with which I am associated—namely that the appalling act of revenge pornography should be a serious sexual offence. I take on board what my noble friend Lord Marks and the noble Baroness, Lady Kennedy, said about the drafting. Neither of us would seek to be draftsmen, but we should make sure that we capture whatever needs to be captured in these amendments.

I was unable to speak at Second Reading but this is a matter that concerns me and rightly concerns many in your Lordships’ House. The issue is how we address that concern. The amendments brought forward by my noble friend Lord Marks would classify the online posting of revenge pornography as an ordinary criminal offence. This fails to recognise the sexual nature of the crime and the impact that it has on the victim, which is a clear violation of the victim’s dignity. Further, this failure to recognise the gravity of the sexual offence leads to an unduly lenient penalty, allowing for imprisonment for no more than 12 months. The courts must have adequate sentencing powers to reflect the severity of this act. For these reasons, I press strongly for this crime to be classified as a sexual offence.

Revenge is a horrible and destructive motive generally, driven as it is by anger, malice and cruel calculation. Perpetrators choose many ways to pursue their revenge, such as harassment, stalking, humiliation through social media by posting malevolent or hurtful comments or spreading rumours concerning work, family or finances in order to ruin reputations. But the greatest betrayal is to choose to use naked or sexually explicit images that should be a private and deeply personal matter between a couple and which were never intended to be seen by anybody else. In this way, the perpetrator commits an act of sexual abuse against the ex-partner, specifically designed to subject them to humiliation and degradation.

If we look at the criminal offence of sexual assault under Section 3 of the Sexual Offences Act 2003, we see that:

“A person (A) commits an offence if he intentionally touches another person (B) … the touching is sexual … B does not consent to the touching and … A does not reasonably believe that B consents”.

To my mind the posting of revenge pornography online is in essence a virtual form of sexual assault since the perpetrator is intentionally posting the naked or sexually explicit image without the subject’s consent, the posting of the image is sexual in nature, the subject does not consent to the posting and the perpetrator does not reasonably believe that the subject of the image consents.

Victims of revenge pornography face extraordinary difficulties, as we have heard, in trying to have their photographs taken down from websites set up specifically to display this type of material. Clearly criminalising this type of activity should give an incentive to internet service providers and search engines to take material down. As things stand, some victims have had to pay so-called fees of hundreds of dollars to host websites based in the United States just to have their photograph taken down from the site.

The law needs to set out clear boundaries about what is and what is not acceptable behaviour, including sexual behaviour. As technologies change, we need to ensure that we keep up with changes in behaviour. This is why we should take this opportunity to recognise revenge pornography as a sexual offence.

[Baroness Brinton (LD)]

My Lords, I added my name to Amendments 37, 38 and 39 and I shall not repeat the very good points made by my noble friends Lord Marks and Lady Grender. I shall start from the point at which my noble friend Lady Grender ended: namely, the activities among our teenagers and very young adults which may not always be fully sexually explicit, and certainly may not be intended to be pornographic. A large number of students both in schools and colleges are being asked by their boyfriends or sometimes—though it is unlikely—girlfriends to have photographs taken of them which I am afraid are being used against them. The noble Baronesses, Lady Berridge and Lady Morris, made valid points about the distinction between different types of photograph. It may be that that will be addressed in the discussion that I hope the Minister will have with those who have put forward both sets of amendments.

The principle in our amendments is clear: that the crime is the publication of those photographs or other electronic media, because it is that over which the person in the photograph feels they completely lack control. It is used as a form of abuse. Increasingly what is used as a key element in cases of stalking—indeed this morning there is a case in the paper for which a court date has just been set in December in Scotland—is the threat to publish not only publicly but also among family and friends. The key point of our amendment is that when it becomes a tool of abuse, that in itself should become a crime.

Because this is about making a law, there is, understandably, little focus on the victim. I will highlight the work that the NSPCC and ChildLine have been doing with young people. They have a very good app called Zipit that is intended to teach secondary school pupils how to respond if their boyfriend or girlfriend asks them for a photograph that is inappropriate, using silly photographs and silly text underneath that might say something like, “You’re having a laugh”. That is beginning to work. The work that PSHE staff are doing in schools to make young people understand the dangers of this are vital if we are not to end up with a generation of young people thinking that it is acceptable to play at this. When they get into stronger relationships where they may have a partner over some period of time it will be second nature; then, if they want to get their own back, we will end up in a position where these sexually explicit photographs start to be exported.

I am concerned that one thing that we have not looked at is the circulation of the image after initial publication. There has been some discussion online about trolling and about abuse of the victims by others. I hope that the Minister will be prepared to look at this. It may be difficult to pin down who has circulated the image but we have seen, in recent cases of trolling, that people who have recirculated offensive and defamatory literature can be taken to court for continued publication. That should also be true in this case.

[Baroness Barker]

My Lords, I will address the point made by the noble Baroness, Lady Kennedy of The Shaws, that the way in which this amendment is worded is of the utmost importance. Our amendment tries to focus not on the definition of what is pornographic but on the act of revenge. That is why, in our amendment, we have concentrated on the initial posting of an image rather than the reproduction or the recommunication of it, because the act of revenge happens in the initial posting.

To respond to the noble Baroness, Lady Berridge, we have no problem with making this a sexual offence. Quite clearly it is. We do have a number of problems with the way in which her amendment is drafted. For example, it requires that the image be of the two people involved, but you can make a very good attempt at ruining somebody’s life by producing pictures of them with somebody else. I did not think that we would get to the headless man today, but we have—the point there was precisely that it was not the two people in the relationship.

The noble Baroness, Lady Kennedy, is right to make us focus on consent. There are a lot of people out there who one would best call amateur pornographers and who actually want to share the lives on the web. I do not know why, and do not ever want to see it or have anything to do with it, but they do. It should therefore be a defence that they had reason to believe that there was consent on the part of the other person. However, if we are going to make this sufficiently robust and—what we really want it to be above all else—a deterrent that makes it absolutely clear to people who are thinking of committing such an act that they may go to prison, she is right that we need to focus on that. Our amendments are not perfect but they take us quite a long way to where we want to go.