How to Defend Revenge Porn?
Revenge porn is a relatively new offence that occurs when an individual shares intimate photos or videos of another individual without that individual’s consent. In Canada, the offence is called publication etc., of an intimate image without consent.
Section 162.1(1) of the Criminal Code states that an individual who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty
- of an indictable offence and liable to a maximum of five years’ imprisonment.
- of a summary offence punishable by a maximum of two years less a day imprisonment and/or up to a $5,000 fine.
Section 162.1(2) of the Code goes on to define an intimate image as any visual recording of a person made by any means including film, video, or photograph,
- in which the individual is nude, exposing their genitals or anal region, breasts or is engaged in explicit sexual activity;
- in respect of which, at the time of recording, there were circumstances that gave rise to a reasonable expectation of privacy;
- in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.
Publication etc., of an intimate image without consent offences typically occur in the context of intimate partner relationships. In many cases, the alleged victim willingly shares intimate images with the accused who then shares them with other people without consent.
While publication etc., of an intimate image without consent is not considered a sexual offence, those who are convicted face serious penalties. Those with a criminal record in Canada are likely to have difficulty attaining and maintaining employment, may be barred from working or volunteering with certain groups of people or in certain settings, and may have difficulty traveling outside of Canada.
If you have been charged with publication etc., of an intimate without consent it is important to consult with legal counsel right away to ensure your rights are protected, including whether you should seek a publication ban. Donich Law has experience defending those charged with various sexual offences as well as those charged with revenge porn offences.
Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.
Click here for more information on defending sexual assault allegations including common defences and the law of consent in Canada or here if you have been falsely accused.
Toronto Star: Pornhub and Revenge Porn.
Global News: Extortion Cases increased 170% from 2012 to 2018 in Canada: StatCan.
Toronto Star: New Corporate Liability for Child Pornography in Canada.
Toronto Star: Police Power and Social Media Companies.
Global News: Can an airline tell you to stop recording and delete a cellphone video?
Métro Montréal: Avec le temps chaud, il n’y a pas que le mercure qui grimpe: le nombre de cas de voyeurisme aussi.
VICE News: An Image Site is Victimizing Women and Little Can be Done.
Legal Information
Frequently Asked Questions
What are the best Defences to Revenge Porn?
-Forensics
-Consent
-Public Good
What are the Penalties for Publication of an Intimate Image without Consent?
How will a Conviction for Revenge Porn affect my Life?
Sexual Assault Resources
Assault
Assaulting a Peace Officer
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights
What are the best Defences to Revenge Porn?
When defending a publication etc., of an intimate image without consent offence it is important to have full disclosure prior to developing a defence. Once the defence has received and reviewed all relevant disclosure, a unique defence can be created based on the facts of the case and the evidence collected by the Crown.
Forensics
In other situations, an individual charged with publication etc., of an intimate image without consent may argue that the images do not meet the definition of intimate images as outlined in section 162.1(2) of the Criminal Code. Defence counsel can conduct forensic analysis of the images to determine whether they meet the definition of intimate images.
For example, if the photos in question depict an individual in their underwear or lingerie, but their genitals, anus or breasts are not exposed and they are not engaged in explicit sexual activity, the images are not considered intimate images for the purposes of this offence. If the images are not considered intimate images, the accused cannot be convicted.
Consent
To gain a conviction for publication etc., of intimate images without consent the Crown must prove, beyond a reasonable doubt, that the accused shared the intimate image without consent, or was reckless as to whether the complainant was consenting. If an accused can prove that the complainant did in fact consent to the images being shared, they may beat the charge. For example, if an individual agreed to participate in a nude photoshoot, knowing the photos would be shared with other individual’s, no crime has been committed.
Public Good
Section 162.1(3) of the Code also provides a defence to the charge. The Code states that an individual shall not be convicted of publication etc., of an intimate image without consent if the conduct that forms the subject matter of the charge serves the public good and does not extend past what serves the public good. Essentially, this section creates a defence for those who may be sharing intimate images of another person without consent, but for a public good. For example, an individual reporting a publication etc., of an intimate image without consent offence to the police will not be charged with the offence if they provide police with the intimate images in question.
What are the Penalties for Publication etc., of an Intimate Image without Consent?
Publication etc., of an intimate image without consent is a hybrid offence. This means that the Crown will elect to proceed summarily or by indictment, which will impact the maximum penalties that may be imposed should the accused be convicted.
Where the Crown proceeds by indictment, an accused who is convicted will face a maximum of five years in prison. Where the Crown proceeds summarily, an accused who is convicted will face a maximum of two years less a day in prison and/or up to a $5,000 fine.
Generally, the maximum penalties outlined in the Criminal Code will only be imposed in the most serious cases. In most cases, the sentences imposed are far less severe than the maximum prescribed in the Code. Those convicted of publication etc., of an intimate image without consent may be sentenced to a period or probation, ordered to pay fines and/or restitution, ordered to complete community service hours, or ordered to serve a term of incarceration less than the maximum.
When imposing a sentence, the court will hear submissions from both the defence counsel and Crown to better understand the situation leading up to the commission of the offence, the background of the accused, and any other aggravating or mitigating factors in the case.
How will a Conviction for Publication etc., of an Intimate Image without Consent affect my life?
Having a conviction of any kind on one’s record can lead to serious implications even years after the case has resolved. Those with a criminal record in Canada may face difficulty gaining employment in certain industries. Many employers require a clean background check from prospective employees and are unwilling to hire those with a criminal history. Similarly, those who cannot pass a background check may also be barred from volunteering or participating in community programs with certain vulnerable populations.
In addition to a reduction in employment and volunteer opportunities, those with a criminal record may also face difficulty when travelling to foreign countries. Many countries around the world, particularly the Unites States, reserve the right to refuse entry to those who have committed criminal offences. Those who have been rendered inadmissible from the United States due to a criminal history may be forced to apply for a Waiver of Inadmissibility if they wish to attempt to enter.