'Revenge porn' offence could be more effective

Recent reports on the efficacy of the offence

of disclosing private sexual photographs and films with intent to cause distress, commonly known as 'revenge porn', have identified a

number of problems with

the existing offence.

As the offence has only been

in force since April 2015 it is perhaps a little unwise to draw any definitive conclusions on how effective it has proven to be. This said, the 206 prosecutions the Crown Prosecution Service has mounted since its inception do seem to point to early success. Detractors would, however, point to the 1,000 plus cases that have been reported to the police and revenge porn helplines that have not yet resulted in prosecutions.

What changes could be made to enhance the reporting and prosecution of revenge porn? Fairly obviously, anonymity should be introduced, although not at the expense of making

this a sexual offence as has

been suggested.

Happily, the media have been unusually discreet about

naming victims. While a failure

to ensure victim anonymity has been at least partially blamed

for the reluctance of victims to report incidents and support prosecutions, few have actually been named in the press. This informal protection of victims' details has been valuable but now needs to be legislated for.

Currently, the offence is only committed where the offender discloses the image without the consent of the person featured and with an intent to cause distress. This motivation was chosen to prevent those who shared images for laughs or without the knowledge the image was non-consensual falling foul of the law. While the mens rea of the offence ensures only those who are maliciously

or cruelly disclosing images are criminalised, it also arguably provides a loophole for those who are disclosing images for sexual or financial purposes.

This is something revenge porn offences in a number of US states have avoided by focusing on the unlawful distribution of non-consensual private sexual images without concerning themselves with the defendant's intent.

To close the intention

loophole, we could either take the approach that has been adopted in the US or preferably introduce an additional, and more nuanced, offence of disclosing private sexual images for sexual purposes, embracing cases where images are shared or sold on. This could and should be a sexual offence. The existing offence, when taken as an

offence used to harass or as part of domestic abuse, would, with anonymity, work perfectly well.

The praise and criticism

the offence has attracted is unsurprising in light of the publicity it has garnered. The media have played a valuable

role in informing the public

about the law. While reports have not always been entirely legally correct '“ for example, the offence has often been spoken about as

a sexual one and they have not been entirely clear about the

fault element '“ the deterrent effect has undoubtedly been aided by the publicity. However, there remain issues that have yet to be addressed and may prove problematic in the future.

Dr Samantha Pegg is a senior lecturer at Nottingham Law School, Nottingham Trent University @LawNLS