Remerciez-le!

Remerciez @Admin pour avoir partagé cet document gratuitement, de la manière la plus simple, en partageant sur les réseaux sociaux.

Non-Consensual Disclosure of Intimate Images as a Crime of Gender-Based Violenc

Non-Consensual Disclosure of Intimate Images as a Crime of Gender-Based Violence Moira Aikenhead Le projet de loi C-13 a introduit de nouvelles dispositions dans le Code criminel interdisant la publication d’images intimes sans le consentement de la personne repre ´sente ´e. Les femmes et les ﬁlles sont massivement les victimes de ce comporte- ment, qui repose sur leur objectiﬁcation. Le pre ´sent article pre ´sente ce crime comme une forme de violence genre ´e et cherche a ` de ´couvrir, en fonction de la loi et des quelques de ´cisions judiciaires disponibles, jusqu’a ` quel point les juges tiennent compte du contexte genre ´ d’un crime ou mettent le bla ˆme sur les femmes. Les dispositions de la loi accordent tellement d’importance a ` la protection de la vie prive ´e des victimes que les juges, lorsqu’ils ont pre ´side ´ les premie `res instances, ont souvent perc ¸u ce crime comme une violation de la vie prive ´e pluto ˆt que comme un crime de violence sexuelle genre ´e. Dans les causes a ` venir, les juges ne doivent pas perdre de vue la nature genre ´e de ce crime et ses effets pre ´judiciables, et ils devraient adopter une approche fonde ´e sur la dignite ´ pour aborder la protection de la vie prive ´e aﬁn de veiller a ` ce que les femmes ne perdent pas le contro ˆle de la distribution de leurs images intimes. Bill C-13 introduced new Criminal Code provisions prohibiting the publication of intimate images without the consent of the person depicted. Women and girls are overwhelmingly the victims of this behaviour, which is premised upon their objecti- ﬁcation. This article analyzes this crime as a form of gender-based violence and considers, based on the legislation and the limited case law, whether, and to what extent, judges may ignore the gendered context of the crime or blame women for their own victimization. The over-emphasis on victims’ privacy expectations in the legislative provisions has resulted in judges conceiving of this crime in early cases primarily as a violation of privacy rather than as a crime of sexualized gender- based violence. Judges in future cases must not lose sight of the gendered nature of this crime and its harms and should adopt a dignity-based approach to privacy to ensure women do not easily lose the ability to control the dissemination of their intimate images. CJWL/RFD doi: 10.3138/cjwl.30.1.117 Introduction In March 2015, Bill C-13, the Protecting Canadians from Online Crime Act,1 became law in Canada.2 Under the new Criminal Code provisions included in Bill C-13, it is now an offence to share or distribute ‘‘intimate images’’ of another person without their consent.3 Non-consensual distribution of intimate images (NCDII) has become increasingly prevalent with the growing ubiquity of the Internet, and there is mounting evidence that women and girls are the primary victims of NCDII. Previous authors have located NCDII within the broader context of gender-based vio- lence. The purpose of my article is to critically examine Canada’s NCDII provisions, and the early case law, within this framework. In particular, I will consider the extent to which NCDII risks being decontextualized and individualized in judicial discourse, and how narratives of responsibilization and the ‘‘ideal victim’’ may contribute to women being blamed for their own victimization, as has occurred with other forms of gender-based violence. I will argue that the wording of the Criminal Code provisions places too much emphasis on victims’ privacy expectations and that this emphasis may contribute to the individualization of NCDII and undue judicial scrutiny of victims’ behaviour. In the ﬁrst part of the article, I explore the social and political context in which Bill C-13 was introduced and passed in response to growing public concern with teen ‘‘cyber-bullying,’’ ‘‘sexting,’’ and ‘‘revenge pornography.’’ I draw on the work of previous authors who have categorized NCDII as a crime of gender-based violence and explore two narratives that inform gender-based violence and may inﬂuence judicial interpretation of NCDII cases: the decontextualization and indi- vidualization of gender-based violence through the criminal law and narratives of responsibilization and the ‘‘ideal victim.’’ In the second part of the article, I analyze the wording of the NCDII provisions, noting that a deﬁnition of ‘‘intimate image’’ that requires an analysis of victims’ reasonable expectations of privacy at two dis- tinct points risks framing the harms of NCDII exclusively in privacy-related terms. This may contribute to judges ignoring the broader context of women’s objectiﬁca- tion and gender inequality and placing undue scrutiny on victims’ behaviour and expectations in relation to their intimate images. While I argue that a primary focus on privacy is inappropriate in cases of NCDII, I propose, given the wording of the provisions, that judges should adopt an approach to privacy that directs scrutiny to the offender’s motivations and use of the intimate image rather than to the victim’s behaviour. 1. Bill C-13, An Act to Amend the Criminal Code, the Canada Evidence Act, the Com- petition Act and the Mutual Legal Assistance in Criminal Matters Act, 2nd Sess, 41st Parl, 2013. 2. Protecting Canadians from Online Crime Act, SC 2014, c 31. 3. Criminal Code, RSC 1985, c C-46, s 162.1. 118 Aikenhead CJWL/RFD In the third part of the article, I review the six initial English-language decisions involving offences of NCDII. I articulate how the facts of those cases ﬁt within the broader context of gender-based violence and examine the extent of judicial recognition of the gendered nature of NCDII and its harms as well as judges’ reliance on, and perpetuation of, narratives of responsibilization and the ‘‘ideal victim.’’ While there are currently too few decisions to make any ﬁrm predictions about how NCDII will be interpreted going forward, I conclude that while judges are treating NCDII as a serious criminal offence, the wording of the provisions and early case law place far too much emphasis on individual victims’ privacy expectations, ignoring the broader, systemic harms of gender-based violence. Non-Consensual Disclosure of Intimate Images as Gender-Based Violence The Need for Legislative Reform Bill C-13 was tabled and passed in the context of a national conversation in Canada about ‘‘cyber-bullying’’ that took place in the wake of the suicide deaths of Rehteah Parsons and Amanda Todd.4 Both of these cases resulted in signiﬁcant media atten- tion and calls for Parliament to intervene as the public began to view cyber-bullying and teen ‘‘sexting’’ as dangerous epidemics.5 The federal government cited the Parsons case and a working group report on cyber-bullying, prepared for the Federal and Provincial Territorial Ministers Responsible for Justice and Public Safety, when discussing the impetus for Bill C-13.6 At the same time, there was growing public 4. Mylynn Felt, ‘‘The Incessant Image: How Dominant News Coverage Shaped Canadian Cyberbullying Law’’ (2015) 66 University of New Brunswick Law Journal 137 at 137; Jane Bailey, ‘‘Time to Unpack the Juggernaut: Reﬂections on the Canadian Federal Parliamentary Debates on Cyberbullying’’ (2014) 37:2 Dalhousie Law Journal 661 at 663–64 [Bailey, ‘‘Parliamentary Debates’’]. Both Parsons and Todd committed suicide in the wake of their ‘‘intimate images’’ (in Parsons’ case, images of a sexual assault) being shared online. The distribution of these images and resulting bullying by their peers were widely seen as causing their deaths. 5. Bailey, ‘‘Parliamentary Debates’’, supra note 4. See also David Zemmels & David Khey, ‘‘Sharing of Digital Visual Media: Privacy Concerns and Trust among Young People’’ (2015) 40:2 American Journal of Criminal Justice 285 at 287; Andrea Slane, ‘‘Sexting and the Law in Canada’’ (2013) 22:3 Canadian Journal of Human Sexuality 117 at 117 [Slane, ‘‘Sexting’’]; Jane Bailey & Mouna Hanna, ‘‘The Gendered Dimen- sions of Sexting: Assessing the Applicability of Canada’s Child Pornography Provision’’ (2011) 23:2 Canadian Journal of Women and the Law 405 at 407. 6. Bailey, ‘‘Parliamentary Debates’’, supra note 4 at 674; House of Commons Debates, 41st Parl, 2nd Sess, Vol 147, No 25 (27 November 2013). 2018 Vol. 30 119 recognition of the issue of ‘‘revenge pornography.’’7 Revenge pornography generally refers to adults posting nude or sexualized images of their ex-partners online in order to harm them or exact ‘‘revenge’’ for some perceived wrong. Revenge pornography websites began proliferating around 2010,8 and a number of authors began to consider potential criminal law responses to this behaviour.9 Many of the conversations taking place in academia and the media around this time noted the distinct harms inherent to online victimization, as compared to victimization in the ‘‘real world.’’ Posting an image online creates an enduring digital record, which can be easily distributed to a massive, worldwide audience, with virtually no way of ensuring the image has been permanently deleted.10 The result is ongoing victimization for individuals who have had their intimate images posted online, who must live with the fact that those images may have been viewed and downloaded by a signiﬁcant number of people and could resurface online at any time. Commentators also noted how the harms of NCDII are compounded by the rapidly dissolving divide between ‘‘online’’ and ‘‘ofﬂine’’ spaces, particularly uploads/Management/ non-consensual-disclosure-of-intimate-images.pdf