Technology is Evolving, Why isn’t Sexual Offence Law?

By Alice Gould
In August 2016 a person I trusted recorded us having sex without my consent. Not just without consent, but after asking multiple times, and hearing no each time. I only found out in September when he sent me the audio clip.

In 2018, I decided to go to the police.

I wanted justice. Unfortunately for me, justice was not an option. I was told by the police that without video footage, or without proof that it had been shared to others and identified me, no sexual offence had occurred. The best I could hope for was a malicious communication conviction. I would have had to spend time at police stations, potentially in court, whilst working full time and then moving abroad to study. Even after all this, conviction was unlikely. I gave up.

“No sexual offence had occurred.”

My story is far from unique. Whilst I oppose retroactively creating criminal laws, there have been many times where actions that most would consider a crime have slipped through legislative cracks. One of the most prominent examples in recent UK law is that of “upskirting,” meaning to take photos up a person’s skirt without their consent. One woman, Gina Martin, was victim to upskirting, but was told by the police that the photo only would have been a crime if she was not wearing underwear. As she was, however, nothing illegal had occurred. This is in contrast to other sexual offences, where a woman is usually blamed for her attack because she was (and I try not to gag as I type this) “dressed provocatively.” In an outrageous turn of events, wearing underwear deprived Ms. Martin of justice.

Ms. Martin’s story rocked the UK, and an online campaign amassing over 100,000 signatures successfully led to all “upskirting” and “downblousing” photos becoming a crime which could lead to up to 2 years in prison or placement on the sex offender register. Whilst this is a move in the right direction, to me it seems ridiculous that it took until 2018 for this to be a crime, particularly when almost everyone carries a camera on them at all times.

Upskirting is not the only way that new technology has led to people being harmed by sexual material recorded or used without their consent. “Revenge porn” is a term used when people deliberately, without consent, post sexual materials of others with direct links to their identity. This is an affront to human dignity through the shame and embarrassment of having material that was intended for private use being seen by many. Not only that, but the link to that person’s social media, identity or contact information can lead to harassment, stalking, or physical and verbal threats. This can cause problems in other aspects of life, such as when searching for a job. In 2016, Tiziana Cantone, from Naples, killed herself after her ex-boyfriend shared a video of her performing a sexual act on the internet. It was 2015 when the UK acknowledged revenge porn as a crime, defined as when a private sexual photograph or film of an individual is disclosed without consent and with the intention of causing distress. The UK is one of very few European countries that has acknowledged this as a crime. Despite the death of Ms. Cantone, Italy is still yet to do so.

“Copyright is protected to a higher degree than people’s dignity and even safety.”

The result is that in most countries in the world, once you send a picture or video, the law suggests that you implicitly consent for it to be publicised around the world. Even when this is deliberately done to cause harm, offence and distress for the person, it is allowed. Many people who have had such pornographic material of themselves spread around the internet have been reduced to registering any such materials for a copyright (which means sending the materials to the copyright office, further exposing themselves) and then claiming for breach of this copyright.[1] Therefore, in many countries, copyright is protected to a higher degree than people’s dignity and even safety.

One of the most recent and technologically advanced ways to sexually humiliate people is “deepfakes”. This is a technique where someone can edit a person’s face onto another person’s body to an extent that looks realistic. Of course, there are many ways that this technology could be used, but, somewhat unsurprisingly, an escalating practice is to edit celebrities’ faces onto pornographic videos. Deepfaking is slightly different to the other issues mentioned, as it doesn’t involve actual sexual acts done by the people themselves, just their faces. However, if you are creating sexual imagery that is so realistic that people might believe it is a sexual material of that person, is it any different to revenge pornography? If you are using an image of someone without their consent to gain sexual pleasure, to give others sexual pleasure or just to cause them distress, should that be legal?

This article has tried to be gender neutral, with the realisation that people of any gender can be the victim of these new and ill-protected issues. However, it would be wrong not to acknowledge that all of these issues disproportionately affect women. Yet again, we see that the rights and dignity of women are being insufficiently protected by the State.

Change does appear to be on the horizon. I have shown examples within the UK, and I hope that in the coming years these initiatives will spread around the world. However, it is still shocking that it needs to take a violation for these changes to happen. Women have killed themselves, but under the law, the men who have deliberately set out to ruin their lives do not face criminal punishment. I have to wait for a person I believed I could trust to share sexual materials of me with the intent of causing me distress because recording a sexual act with me without my consent, tormenting me with the evidence and destroying my trust is not enough to constitute a crime.


[1] https://money.cnn.com/2015/04/26/technology/copyright-boobs-revenge-porn/index.html

Alice studied her undergraduate degree in Law with European Law at the University of Nottingham in the UK with her Eramus in Lund University in Sweden. Since graduating in 2016 she has worked in a death penalty clinic in the US, an educational human rights NGO in Georgia and as an English teacher in China. Her interests include LGBTI and gender rights.