Ineffective Criminal Justice Responses Disappoint Victims of Non-consensual Distribution of Intimate Images

Launch of Survey Report on Image-Based Sexual Violence

The Association Concerning Sexual Violence Against Women (the Association) today has launched its latest report on Image-Based Sexual Violence (IBSV), “Survey Report on Image-Based Sexual Violence 影像性暴力經驗問卷調查報告,” at a press conference. The survey, completed between May, 2019 and January, 2020, consists of an online questionnaire which collected responses from 206 victim-survivors and in-depth interviews with 11 victims-survivors. A brief result of the report and its recommendations are outlined as below:

Under-Recognised Seriousness of Non-Consensual/Threats to Distribution of Intimate Images

In a multiple choice questions on IBSV behaviours experienced by the respondents, 151 (73%) involved non-consensual taking of intimate images or videos, 82 (40%) involved voyeurism, 62 (30%) involved non-consensual distribution and threats to distribution (sextortion), 44 (21%) involved stealing of intimate images, 25 (12%) involved the discovery of hidden camera, and 16 (8%) involved ‘fakeporn’ – altering images or videos with the victim in it to make them sexual. The survey has also found that 116 perpetrators are known to the victim, with 47 disclosed that the perpetrator is their partner.

Coercion and control with the threat to distribute intimate images is revealed to be common within cases that involved intimate partner. ‘My personal freedom was impeded by his threat, I had to do things that I didn’t want, and I had to remain a friendly relationship with him,’ said Ms F (alias), who experienced taking and distribution of intimate images without consent and sextortion. ‘I wanted to be angry to him and resist against his control, but I wasn’t dared to… I was so scared for what could have happened… He told me that he had shown it to others, and implied that if I don’t follow his demands, these images will go online’. It has been recognised that communities have a stronger focus on the behaviour of non-consensual taking while neglecting the behaviours of non-consensual distribution and sextortion. Victim-survivors’ experiences have echoed overseas studies on IBSV that these behaviours should be understood as a continuum for their characteristics as events that pass into one another and hard to be distinguished.

Distribution of intimate images without consent: a non-criminalised sexual violence

Non-consensual distribution of intimate images covers not only images taken without consent, it also includes the distribution of intimate images that are taken with consent but shared and publicised without consent. Rebecca (alias), a private shooting model had agreed to model for a photographer on some intimate content, with a consensus that these images are solely for the photographer's personal archive and viewing. However, Rebecca later found out that these images are uploaded to an online forum.

'The participation in this private shooting was only purposed to let the specific photographer to see my private parts, it wasn't intended for the public, the photographer's behaviours completely violated my bodily autonomy and the agreement between us,' said Rebecca. She felt that such act of sexual violence has deprived her freedom to decide on how she can express her body and damaged her self-worth.

Non-consensual distribution of intimate images brings enduring harms, causes suicidal thoughts

IBSV is inseparable with the internet. From the findings of the survey, it has been found that victims have experienced the abuse in a location that included cyber space, 52 involved instant messaging apps, 33 involved social network, 18 involved online forum, and 8 involved pornography websites. The interlinking and decentralised characteristics of the internet causes IBSV victim-survivors to constantly live in the fear that the material will always remain available for viewing and rediscovery.

In all of the IBSV victim-survivors surveyed, 29 have said that they 'have had suicidal thoughts or attempted suicide. The frustration from not being able to cease the circulation and reverse from what happened affects victims' social life and haunts them permanently.

‘He took those pictures of me, and it means that he can publish them whenever he likes,'said Ms F, 'it doesn' t make a different if he decides to put them online 5 years later or 10 years later, it is still the same enduring and constant fear that I have to suffer'. The ongoing frustration has resulted in Post-Traumatic Stress Disorder for Ms F,'For an extended period of time, I couldn't sleep, I kept being awaken by nightmares and I just couldn't stop crying every day…and at the lowest point, I have attempted suicide multiple times'.

Inaction and ineffective criminal justice responses disappoint victims

The survey has also identified that of the 51 respondents that tried to report their case to police, 35 of the cases have been refused from opening for investigation from the police, with only 4 responded that they have won their case.

‘I decided not to do anything legally, because I felt if I send the perpetrator a demand letter, it means nothing,' said Rain (alias), a victim of non-consensual taking and distribution of intimate images, through a pre-recorded message at the press conference. 'Even if I go to the police, I will only get asked very detailly on the case without resulting in any consequences for him. But for me it will be another round of traumatisation'.

It has also been discovered that victims that reported the case of sextortion to police had been told to handle it themselves as it was considered a matter of personal dispute. The victim was also told that even if the perpetrator actually sent these images to her friends, the authority would still consider that insufficient for opening a criminal investigation. The police would only begin its investigation if the images were distributed publicly. This shows that the police definition of personal dispute falls on whether the material have been published in a 'public domain'. However, as highlighted in the report, harms that are done by non-consensual distribution of intimate images cannot be scaled by how many individuals have seen these images. 

The lack of a specific sexual offence that criminalises non-consensual distribution has resulted in an inadequate response for victim-survivors from the criminal justice system. The police, particularly, has failed to identify IBSV's serious nature in violating one's sexual autonomy and handling cases as personal dispute. ‘I believe if there is a specific offence, it will at least be able to let the victimised women know that opening an investigation is possible,' said Rain. 'Of course, the interrogation is still expected to be hard, but at the very least I will know that there is a chance for these perpetrators to be held responsible for what they have done.

Recommendation for specialised sexual offences on threats to / non-consensual distribution

When asked about recommendations to tackle and reduce IBSV, 137 victim-survivors have considered the introduction of a set of IBSV focused legislation to be vital. Having looked into the Law Reform Commission's recommendation on voyeurism and non-consensual upskirt-photography published last April, it is considered that the proposed reform will be inadequate in tackling non-consensual or threats to distribution of intimate images.

The Association proposes that Hong Kong can take Queensland, Australia last April's amendment to Criminal Code Act into reference, criminalising the following behaviours: Distributing intimate images (Sect 223), and Threats to distribute intimate image or prohibited visual recording (Sect 229A). The above sexual offences come in a maximum penalty of 3 years imprisonment. The intimate images referred by the offences include not only images taken by camera, but also altered images.

In England and Wales, where the Hong Kong's proposed offence of voyeurism is referenced from, the Law Commission has begun a project on July, 2019 to review the law on taking, making and sharing of intimate images without consent. The review is expected to conduct consultation and make recommendations to ensure the law protects victims and is fit for the modern age. 

From the above examples, it can be seen that various jurisdictions are recognising the severity and prevalence of IBSV. Linda S.Y. Wong, Executive Director of Association Concerning Sexual Violence Against Women recommends for the Hong Kong government and the Law Reform Commission to launch a review to look into overseas examples and introduce sexual offences to criminalise these harmful acts. The Association will also push for further public education on IBSV to assist the public to: recognise the harm that can be done by IBSV behaviours, obtain knowledge to respond to IBSV, and be aware of bystander responsibility.