‘Revenge porn’ is not ‘intending to cause harm’ - Image-based sexual abuse and the justified criminal law: limiting the right to free speech to protect the right to privacy

Marthe Goudsmit will be presenting on her doctoral research on the wrongness of image-based sexual abuse (commonly known as ‘revenge porn’). In this presentation she will consider image-based sexual abuse as a speech act breaching privacy. Most jurisdictions do not criminalise image-based sexual abuse at all, and in the jurisdictions that do address it, current legislative approaches tend to focus on the mens rea of intending to cause harm and/or distress. It will be addressed in this presentation that 1) image-based sexual abuse warrants explicit criminalisation and that 2) the mens rea of intending to cause harm and/or distress may leave many instances of image-based sexual abuse to fall outside the scope of such a criminalisation. If the criminal law – in accordance to the harm-principle – addresses acts that are considered ‘objectively harmful’ it is not necessary to require the defendant to intend to cause that harm in order to have a justified criminal law.

It will be considered in this presentation whether a more appropriate approach to the mental element of image-based sexual abuse might be found in a mens rea of 'intending to publish'. This approach may better cover the act of ‘image-based sexual abuse’, and simultaneously unveils the human rights clash at the heart of this issue: criminalising speech acts to protect the right to privacy; or the opposite: not criminalising speech acts and not protecting the right to privacy.