Image-based abuse: When a photo becomes a crime

Facebook founder Mark Zuckerberg has said that privacy is no longer a “social norm”, but most people draw the line at sharing sexual or nude images of others without their permission – an act known as image-based sexual abuse. Four out of five call this criminal behaviour – yet one in five Australians have either been exposed in this way, or have faced the threat of it.

“With the rapid uptake of mobile phones and camera-enabled devices, posting what you're doing is in every part of life today,” says Monash criminology senior lecturer Dr Asher Flynn. “And it's the way that young people in particular communicate. That’s how they flirt. And that’s how they engage in some part of their sexual activity.”

Dr Flynn is working with RMIT University associate professors Dr Anastasia Powell and Dr Nicola Henry on an Australian Research Council-funded Discovery Project examining the prevalence, nature and scope of the relatively new crime of “image-based abuse”. Over the next three years, the researchers will examine the phenomenon in Australia, New Zealand and the UK with partner investigators, Professor Nicola Gavey (Auckland University), Professor Clare McGlynn (Durham University) and Professor Erika Rackely (University of Birmingham). In 2017, the local researchers published the results of an online survey of more than 4000 Australians aged 16 to 49 that was funded by the Criminology Research Council.

Their latest report, Responding to ‘revenge pornography’: Prevalence, nature and impacts, found one in 10 respondents said a sexual or nude image had been taken of them without their permission, 10 per cent reported that an image had been distributed without their permission, and 9.6 per cent reported someone had threatened to post nude or semi-nude pictures of them online, or to send them to others.

The figures are likely underestimates, because not everyone is aware that nude or semi-nude photos of them exist, says Dr Flynn. These photos can be taken while they're asleep, but also in public settings, she says. “So on public transport. It can include upskirting – taking a photo up someone’s skirt – or downblousing. It can also be nudist beaches.”

Some photos are taken during consensual sexual activity, where “someone has set up a camera or is taking photographs without them being aware”. Some young people were unknowingly photographed “when they were engaged in oral sex”. Others had nude or semi-nude selfies that they had not shared stolen by perpetrators who had hacked – or stolen – their phone.

Research into sites of distribution for these images has revealed “a huge subculture of sharing nude and intimate images, particularly of women” on “the dark web, revenge porn, ex-girlfriend sites, things that are not readily available”, says Dr Flynn. The images are labelled as having been taken without consent. “It can be a sexual gratification thing, it can be a power thing, it could be about money, control. There’s all sorts of different elements to it,” she says.

Sexual selfies increase abuse risk

The report found that the abuse risk is higher for those who share sexual selfies, with men and young adults more likely to share a nude or sexual image of themselves, and women more likely to fear for their safety because of image-based abuse. Although men are more likely to be the perpetrators, this research showed that they are equally likely to be the victims. (But Dr Flynn says that other research the trio have since carried out for the Office of eSafety Commissioner shows that women are more likely to be victims of the non-consensual distribution of images than men – 15 per cent of adult women, compared to 7 per cent of adult men.)

“We see it as a continuum of sexual violence and harassment, and our findings really do reflect broader patterns of sexual violence and harassment in the community,” Dr Flynn says. “Vulnerable and marginalised groups do tend to be the main victims of any form of abuse, unfortunately.” For instance, one in two indigenous Australians, and one in two disabled people who were surveyed reported being a victim of image-based abuse. The prevalence was also higher among young people and members of the LGBTI community.

Even the threat to post an image provoked intense anxiety in victims, who tended to share community attitudes of victim-blaming and shaming. Dr Flynn takes the example last year of the photograph of the unidentified topless woman shared by a Richmond footballer after the AFL grand final. “He apologised, but the focus was still on ‘who is the girl?’. ‘What did she expect having those photos taken in the first place?’ ‘She looks great in the photos so why is she concerned about it?’ All those sorts of harm-minimisation attitudes come out. So that is what we found in our study. Perpetrators, people who reported that they had engaged in it, were particularly likely to say that it was the victim’s fault. But also people who had experienced it themselves still had a lot of self-blame around having taken the photo, or sharing it with someone that they trusted at the time.

“But the focus should be on the perpetrator. You've done nothing wrong by sharing the photo with someone. The abuse happens when they go on to share the photo without permission.”

Difficult to prosecute

Despite the prevalence of the abuse, and the psychological damage it can do, this is a tough crime to prosecute. Dr Flynn says that in Victoria, South Australia, NSW and the ACT, it's illegal to take an intimate photo without a person’s permission, or to distribute (or to threaten to distribute it) without their consent. “But in the other states and territories there are no specific laws about image-based abuse. So in those areas you have to rely on stalking offences, or surveillance-type offences, which aren’t really appropriate.”

No federal offence exists although prosecutors have attempted to bend an existing law of “misusing a carriage service to menace or harass someone” to fit the purpose. “It’s not highly effective because it doesn’t actually capture threatening to send someone’s image, or the taking of an image without someone’s permission.”

"The focus should be on the perpetrator. You've done nothing wrong by sharing the photo with someone. The abuse happens when they go on to share the photo without permission.”

In Victoria, an additional problem is that it’s “a summary offence, the lowest-level offence. Which means the police don’t have powers of arrest. They can’t just seize the mobile phone, or the computer of the offender. A very difficult offence to prosecute. We’ve seen in Victoria between 2013 and 2016 there’s only been 80 sentences of any kind of image-based abuse offence, and that includes upskirting, or downblousing, or taking photographs of people in public, as well as the non-consensual distribution or threat to distribute images.”

It's not unusual for police to dismiss victims, or to tell them to “turn their Facebook off”. One counsellor advises victims to take a copy of the law to the police when they make the complaint so they can demonstrate that non-consensual sharing of images is a crime. The researchers would like a federal offence to be created, but Dr Flynn says it needs to be supported by an education campaign, and to be resourced by investigators trained in the area – no such investigators exist at present.

Call for corporate responsibility

The researchers would also like to see greater corporate responsibility taken for the distribution of images, from powerful social media sites. “At the moment there’s a couple of websites and social media sites that have policies in place. The problem with some of the sites is that the victim has to prove to the website that it was a non-consensual photograph, that they are the person in the image, and they have to go through quite an extensive process.

“Facebook use digital recognition software. So you provide the photograph to them. They then create a digital hashprint, like a fingerprint, of the image. And they can then block that image on Facebook or any of their subsidiaries. That’s not only if you have found the image online. Facebook are also offering that if you know there’s an image of you, and you are concerned that someone may share it in the future – because there’s been a threat, say. Then you can provide them with the image” beforehand as a preventive measure. Dr Flynn describes the Facebook initiative as “interesting and contentious”.

But one unambiguously positive step has been taken. In October 2017, the Office of the eSafety Commissioner opened an image-based abuse reporting portal. “It gives victims an opportunity to report when an instance of image-based abuse has happened to them. The office will then take carriage of it and try to get the image taken down – from social media or a website.

“That has been a really important initiative. They also give advice on how to report to police if you want to, or how you can approach different websites yourself if you would rather do it personally. We think that’s a positive step. A lot of victims, they just want the image taken down. Removed. So it’s not constantly out there.”

Read more: Image-based abuse: the disturbing phenomenon of the 'deep fake'

Support: 

Support, report and resources, (www.esafety.gov.au)

1800RESPECT - Support for people experiencing image-based abuse