THE Director of Public Prosecutions is the latest in along list of people supporting legal anonymity for victims of so-called ‘revenge porn.’
This campaign has been running ever since this offence emerged, with the growth of social media and the ability to easily share photographs and video content.
Before we do go down this road though, we need to understand how such anonymity will end up protecting offenders as well as victims.
Revenge porn was created as a specific offence in the Criminal Justice and Courts Act 2015, Section 33(1) of which says:
It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made
(a) without the consent of an individual who appears in the photograph or film, and
(b) with the intention of causing that individual distress.
There is not mention in that section or that Act of automatic anonymity for victims and it is not an amendment or addition to a Sexual Offences Act which confers such anonymity.
One can completely understand the desire of victims of this offence to be granted anonymity. It is a particularly intrusive and distressing offence. It very often stems from a relationship where there was great trust and intimacy, which later results in the revelation of imagery created during the relationship.
The betrayal, embarrassment and deep distress suffered by victims cannot be underestimated.
However, because of the relationships in which many of these images are created, granting the same anonymity as is currently given to other sexual offence victims will create difficulties in reporting these offences.
Currently there are a range of sexual offences where the victim is given automatic legal anonymity as soon as they report that offence to anyone. These offences include rape, indecent assault, voyeurism, grooming, trafficking for sexual exploitation. This is not an exhaustive list but you can see the range of offending is very wide.
The law on reporting such offences says that you commit an identification offence if you report ‘any matter’ that would lead to someone identifying that person as being the victim of a sexual offence.
What this means in practice is that where there is of has been a relationship between the victim and the accused, the media reporting the case must be careful to blur the circumstances of the case so that no-one can work out who the victim is.
So sexual offence anonymity means much more than just keeping out someone’s name or photo from a report.
The difficulty with granting this level of anonymity in cases of revenge porn is that the very offence itself tells the reader that at some stage the victim was in a relationship with the accused, and one that was intimate enough to result in the accused having possession of this imagery.
I realise that not all revenge porn offences will fall into this category, but many do.
Therefore the identity of the accused will be a detail that would lead to the identification of the alleged victim and media reporting the case would have little option but to anonymise the defendant too.
This will mean that such cases go unreported. The media are accustomed to anonymising victims in sexual offence trials, but if the defendant is anonymous too, then the report means nothing to the reader.
Furthermore, if someone is convicted of such an offence, then surely the community needs to know about their behaviour, so as to warn others who might get into a relationship with them.
The answer could be to give victims some form of anonymity, but one that would not by implication require the anonymisation of the defendant. This solution might appear attractive, but as explained above, it will mean that the victim could be identified by those in their community who knew they were in a relationship with the accused.
Another answer is to give full sexual offence anonymity to victims, but that the Crown Prosecution Service give guidance to the media on what they will regard as an identifying detail triggering media prosecution. This seems to be a bit of a botch and will still lead to the identification of victims.
I don’t have an easy answer to this I am afraid, but these questions must be considered before we legislate and effectively anonymise people guilty of a very serious offence.