Nazmin Akthar (Lawyer and the Co-Chair of Muslim Women’s Network UK)

Intimate image-based abuse is an area of law that has been in much need of reform for a very long time, with the gaping holes in legislation leaving many victims without legal recourse. Intimate image abuse relates to situations where intimate images of an individual are shared (either online or offline) without their consent, or threats to share are made. However, there are many limitations to the existing laws, such as the fact that sharing ‘deepfake’ footage or ‘downblouse’ images of a women’s cleavage without her consent, are not currently covered.

Thankfully, the Law Commission has taken on this task and is conducting a review of the existing criminal law in respect of the taking, making and sharing of intimate images without consent. Earlier this year the Law Commission published its consultation paper, in which they proposed a framework which they believe will provide a more unified and structured approach that will ultimately provide victims with better protection.

The Law Commission has proposed the introduction of the following four new offences:

• A “base” offence which prohibits the taking or sharing of an intimate image of a depicted person where they do not consent and there is no reasonable belief in consent by the perpetrator.
• An additional more serious offence of taking or sharing an intimate image without the consent of the depicted person, with the intention to humiliate, alarm or distress the victim.
• A further additional serious offence of taking or sharing an intimate image, without the consent of the depicted person and the perpetrator having no reasonable belief in consent, for the purpose of either their own or someone else’s sexual gratification.
• An offence of threatening to share an intimate image where the threat is either intended to cause the depicted person to fear that the image will be shared, or the perpetrator is reckless as to whether the depicted person will fear the threat will be carried out.

These proposals are certainly to be welcomed, especially as they acknowledge the different motivations which may be involved in respect of the taking, making and sharing of intimate images without consent. There tends to be an assumption that intimate image abuse is all about ‘revenge’ (hence the broad use of the term of so-called revenge-porn to describe such cases), thus ignoring the many other motivations, including financial abuse, sexual exploitation and coercive control. Using intimate images to force a victim to remain in a marriage is not unheard of, particularly in minoritised communities.

However, one key question which is still to be answered by the Law Commission (their consultation paper invited views on this particular point), is what the definition of ‘intimate’ will actually mean? This may seem an obvious question, but the fact of the matter is that the meaning of ‘intimate’ varies from person to person and is very much dependent on the cultural norms and intersectional experiences of an individual (and their community). What could be an ‘ordinary’ image for one person, such as a picture of two people hugging or kissing whilst fully clothed, may be the very definition of intimate for another. For some an image in your underwear may be intimate, whilst for another being in a blouse and petticoat may be. Additionally, there is the added problem that a victim may not themselves consider an image to be intimate, but they know that their family or members of their community will consider the image to be intimate.

Why does this matter? Because the consequences of having an intimate image made publicly available could have a colossal effect on the victim, especially if the victim is a Muslim woman or girl. Due to the unhealthy obsession with the concept of virginity and the attachment of so-called honour to said virginity, an indication that a Muslim woman or girl could be sexually active or even simply in a relationship could mean a range of serious consequences. As well as the impact on their mental health, educational and employment prospects, they could be at serious risk of domestic abuse, forced marriage, forced hymenoplasty, forced to leave education, honour-based abuse and self-harming. They could also be disowned and ostracised, can find themselves homeless overnight and may also end up self-harming and succumb to alcohol abuse. It can also lead to marital breakdown and parental alienation.

Perpetrators of abuse know about these risks and take advantage of this very fact to harm and exploit victims from minoritized backgrounds.

Perpetrators of abuse know about these risks and take advantage of this very fact to harm and exploit victims from minoritized backgrounds. A tactic used by grooming gangs to target and exploit South Asian victims, for example, is to rape the victim, film the ordeal and then threaten to share the video – unless the victim agrees to their demands.

Given the fact that lives could be quite literally at stake in some cases, would it not be wrong to have a definition of ‘intimate’ that does not take into account the cultural factors which could be at play? Especially if this could mean that Muslim women and girls (who are victims) are unable to seek help from the police when they are being blackmailed or otherwise harmed using what they or their family or community would regard an intimate image? Admittedly, what is ultimately needed is a complete overhaul in misogynistic attitudes across communities. We also need better education as to what is a healthy relationship, and what are toxic red flags. However, such changes will not be happening overnight and will be a slow process. We therefore need to ensure the laws are protecting and supporting victims in the meantime.

There will be situations where an individual takes and/or shares an image that they do not regard as intimate but which the individual within the image (the victim) does regard as intimate due to cultural factors involved. Naturally, the individual in this instance should not be criminalised. The suggestion is that focus is placed on the ‘knowledge’ held by an individual taking or sharing an image; that is, based on their knowledge and understanding of the victim, the victim’s family, community and culture, did they know that the image would be regarded as intimate and that it could therefore cause harm to the victim if taken or shared? Whilst knowledge may not always be easy to establish, it would not be impossible to assess either; especially as in most cases involving women and girls from minoritized communities, the perpetrator tends to be of a similar cultural background. Sufficient safeguards can be put in place so that innocent parties are not penalised and therefore it is better to allow a broader definition of ‘intimate’ but with limitations which protect innocent parties, than to have a narrow definition that automatically excludes women and girls from minoritized communities being able to seek help. It is not fair to ignore the experiences and needs of such victims; the law must be available, accessible and useful for them too.