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‘Revenge Porn’ – Sharing of Sexual Images in Family Cases

In recent years we have all sadly become familiar with cases of parties either threatening to share sexual images of their ex-partner without their consent or in some cases, doing so and then facing the repercussions of doing so.  As a starting point there seems to be a lack of awareness by the general public that sharing sexual images of a person without their consent is a crime.

The offence is defined as follows:

Threats to disclose private sexual photographs and films with intent to cause distress

(1)Section 33 of the Criminal Justice and Courts Act 2015 (disclosing private sexual photographs and films with intent to cause distress) is amended as follows.

(2)In the heading, after “Disclosing” insert “, or threatening to disclose,”.

(3)For subsection (1) substitute—

“(1)A person commits an offence if—

(a)the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears,

(b)by so doing, the person intends to cause distress to that individual, and

(c)the disclosure is, or would be, made without the consent of that individual.”

This is a problem which has become more and more prevalent in family law and it is important that proper consideration is given at the outset if an allegation of this nature is being made within family proceedings. It is often the case that an alleged perpetrator of abuse will want to use images of a sexual nature from the relationship to reveal that the version of events that the alleged victim is portraying is not the case.

The recent case of M ( A child -Private Law Children Proceedings- Case Management – Intimate Images ( ( 2022) EWHC 986 (Fam) gives guidance as to how to approach such matters within the family court.

If a party seeks to rely on such images within family proceedings they must firstly file a C2 application to the court seeking permission to file the same and such application must be consider at the outset of the proceedings. Any such images should not be filed in the ordinary course of filing as to do so may of course lead a party to commit an offence.

At para 76 of her judgement, Mrs Justice Knowles commented that she ‘has grave concerns about the use of intimate images in private law children proceedings where allegations of abuse, specifically domestic abuse, are made, perceiving it to be a problem which is already present in a growing number of private law children cases and one which is likely only to increase given the growing use of still and/or moving images to document intimate relationships. Her observations for the future are set out in 12 agreed guidelines drafted by the advocates at para 77 (A-L), the first of which is that “sexually explicit or intimate videos and photographs should not be filed as part of evidence without a written application being made to the court in advance“.

Interestingly and importantly she offered a differing definition of the term “intimate image” in the context of private law proceedings to the definitions contained in the criminal law and defined it as “an image of a person, whether an adult or a child, naked or partially naked. Such an image can include part of a person’s body, clothed or unclothed, such as breasts, genitalia or the anus, which are generally regarded as private. Intimate images include those of a person engaged in what is normally regarded as private behaviour such as washing, urinating, masturbating or engaged in other sexual acts either alone or with another being…. both still and moving images.”

Teleri Jones

Family Law Barrister

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