Pornography and Image-Based Sexual Abuse by Clare McGlynn
Journal of Criminal Law, 2019
The law criminalising the possession of extreme pornography, first enacted in 2008 and amended to... more The law criminalising the possession of extreme pornography, first enacted in 2008 and amended to include rape pornography in 2015, continues to generate considerable controversy and calls for reform. In order to inform these ongoing discussions, we undertook a study to find out information about who is being charged with extreme pornography offences and their characteristics in terms of gender, age and ethnicity, as well as data on the specific type of pornography forming the subject matter of those charges. Utilising freedom of information requests, our study provides valuable new information to help inform debates over the policing of extreme pornography across England and Wales. Overall, we found that the vast majority of those charged were white men across all age groups; that bestiality images formed the most common basis for charging and that, in respect of the data provided, the majority of charges were brought together with other sexual offences.
In the last few years, many countries have introduced laws combating the phenomenon colloquially ... more In the last few years, many countries have introduced laws combating the phenomenon colloquially known as 'revenge porn'. While new laws criminalising this practice represent a positive step forwards, the legislative response has been piecemeal and typically focuses only on the practices of vengeful ex-partners. Drawing on Liz Kelly's (1988) pioneering work, we suggest that 'revenge porn' should be understood as just one form of a range of gendered, sexualised forms of abuse which have common characteristics, forming what we are conceptualising as the 'continuum of image-based sexual abuse'. Further, we argue that image-based sexual abuse is on a continuum with other forms of sexual violence. We suggest that this twin approach may enable a more comprehensive legislative and policy response that, in turn, will better reflect the harms to victim-survivors and leads to more appropriate and effective educative and preventative strategies.
In September 2016, the Irish Law Commission published its long-awaited report on ‘Harmful Communi... more In September 2016, the Irish Law Commission published its long-awaited report on ‘Harmful Communications and Digital Safety’. This compelling document puts forward a comprehensive package of law reforms to tackle the growing problems of online harassment and abuse perpetrated using modern technologies and social media. Amongst its many provisions, the Report recommends new laws to tackle the phenomenon colloquially known as ‘revenge porn’ which is rightly identified as a significant harm deserving of legislative intervention. In this paper, I step back from the detailed technical provisions, to focus on the more conceptual issue of the nature of these online harms, why they are being perpetrated and what are the implications of this. Drawing on work with my colleague Erika Rackley, I name and conceptualise harmful communications as ‘image-based sexual abuse’. My aim is to emphasise: that these are gendered and sexual harms that are forms of sexual offending; that this is how victim-survivors understand the harm perpetrated against them; and that the victim-survivors are mainly women and girls. I also hope to explain why this conceptualisation matters: it shapes shape legislative responses, educational approaches and our broader awareness of the phenomenon.
Advances in technology have transformed and expanded the ways in which sexual violence can be per... more Advances in technology have transformed and expanded the ways in which sexual violence can be perpetrated. One new manifestation of such violence is the non-consensual creation and/or distribution of private sexual images: what we conceptualise as ‘image-based sexual abuse’. This article delineates the scope of this new concept and identifies the individual and collective harms it engenders. We argue that the individual harms of physical and mental illness, together with the loss of dignity, privacy and sexual autonomy, combine to constitute a form of cultural harm, impacting directly on individuals, as well as on society as a whole. While recognizing the limits of law, we conclude by considering the options for redress and the role of law, seeking to justify the deployment of the expressive and coercive powers of the criminal and civil law as a means of encouraging cultural change. Available online at: https://academic.oup.com/ojls/article/doi/10.1093/ojls/gqw033/2965256/ImageBased-Sexual-Abuse?guestAccessKey=349e7a45-7633-4b34-8e69-9d39aef546ab
Plenary Lecture at Annual Conference of the Irish Assocation of Criminal Justice Research & Devel... more Plenary Lecture at Annual Conference of the Irish Assocation of Criminal Justice Research & Development, October 2016: In this lecture, I welcome the Irish Law Commission report on Harmful Communications and Digital Safety, but challenge its claim that the non-consensual sharing of intimate images is not a sexual offence. I argue that the term 'image-based sexual abuse' better captures the nature and harm of the non-consensual creation and distribution of private, sexual images and that these harms are a form of sexual offending. This terminology matters as it shapes legislative, political and educational responses.
This presentation was given at the Melbourne Roundtable in February 2016 entitled: 'More than Rev... more This presentation was given at the Melbourne Roundtable in February 2016 entitled: 'More than Revenge: addressing the harms of 'Revenge Pornography'' drawing on joint work with Erika Rackley. The presentation (a) argues that we should use the term image-based sexual abuse instead of 'revenge porn'; (b) that the harms of image-based sexual abuse are not sufficiently recognised and (c) identifies a number of lessons to be learnt from the UK experience in this area.
In our evidence, we argue that the introduction of the Bill presents a landmark opportunity to en... more In our evidence, we argue that the introduction of the Bill presents a landmark opportunity to enshrine in law that image-based sexual abuse is a fundamental breach of privacy and dignity, a serious form of harassment and abuse and, therefore, a cause of significant harm. We argue that the prevalence of image-based sexual abuse is a form of cultural harm contributing to the normalization of non-consensual sexual activity and creating a climate in which women’s sexual expression is not respected.
This presentation was given to Iceland's Ministry for the Interior, Attorney General and prosecut... more This presentation was given to Iceland's Ministry for the Interior, Attorney General and prosecutors and the Judicial Committee of the Icelandic Parliament. It identifies some of the lessons to be learnt from the experience of introducing legislation on the misuse of private sexual images in England & Wales.
In this presentation, McGlynn & Rackley outline the new law on revenge pornography introduced in ... more In this presentation, McGlynn & Rackley outline the new law on revenge pornography introduced in the Criminal Justice and Courts Act 2015. They examine the limitations of the legislation and argue that reform is required to proscribe a wider range of non-consensual private sexual images, including upskirting, hacked images and those distributed not just to cause distress.
John Stuart Mill dominates contemporary pornography debates where he is routinely invoked as an a... more John Stuart Mill dominates contemporary pornography debates where he is routinely invoked as an authoritative defence against regulation. This article, by contrast, argues that a broader understanding of Mill's ethical liberalism, his utilitarianism, and his feminism casts doubt over
such an assumption. New insights into Mill's approach to sex, sexual activity, and the regulation of prostitution reveal an altogether more nuanced and activist approach. We conclude that John Stuart Mill would almost certainly have accepted certain forms of pornography regulation and, in this light, we argue that Mill can provide the foundation for new, liberal justifications of some forms of pornography regulation.
On 8th August 2012, Simon Walsh was acquitted of five counts of possessing extreme pornography. T... more On 8th August 2012, Simon Walsh was acquitted of five counts of possessing extreme pornography. The case was not, of course, the first prosecution under the extreme pornography provisions contained in the Criminal Justice and Immigration Act 2008 (CJIA). Crown Prosecution Service (CPS) figures indicate that there were 799 prosecutions in 2011. However, unlike many of the other prosecutions, Walsh’s case was the focus of extensive public debate. It was touted in the press as a ‘landmark’ case defining the boundaries of the extreme pornography provisions, in which ‘common sense prevailed’ through a ‘sensible jury verdict’. There are two particular features of this case which meant that it garnered such attention. First, Simon Walsh was a high profile defendant. At the time of his arrest he was a barrister, politician, and magistrate, as well as (according to newspaper reports) a close aide of the London Mayor, Boris Johnson. Second, his trial was live-tweeted by Walsh’s solicitor, Myles Jackman and by PhD student Alex Dymock to over 8,000 followers. Notwithstanding this publicity, R v Walsh is unreported. Accordingly, while this article draws on the public tweets and press reports, it is recognised that neither are authoritative sources of information and that it is important to treat both with great caution. Nonetheless, and with these caveats in mind, the Walsh case provides an opportunity to revisit what continues to be a misunderstood and, in this case, mis-used, law.
This article considers provisions criminalising the possession of ‘extreme pornography’ in the Cr... more This article considers provisions criminalising the possession of ‘extreme pornography’ in the Criminal Justice and Immigration Act 2008. It begins by outlining the current criminal law regime governing pornography, before considering the new measures in detail. We highlight the areas which are most likely to witness challenges, and the areas about which confusion seems inevitable. We close by considering the arguments for proscribing the possession of extreme pornography and possible ways forward, while recognising that, regrettably, the legislative opportunity to take action in this field has most likely now been lost. (2009) 4 Criminal Law Review 245-260.
Discusses the Government proposals, set out in its 2005 consultation paper, regarding the crimina... more Discusses the Government proposals, set out in its 2005 consultation paper, regarding the criminalisation of possession of extreme pornographic material. Highlights the murder case which helped spur the Government into action, the types of material identified in the proposals and what they aim to achieve. Explores the responses received to the consultation, noting areas of agreement and dissention between respondent groups. Argues in favour of a categories based approach to regulating pornography which focuses on "harm to women" rather than on a tendency to "deprave and corrupt". (2007) Criminal Law Review 677-690
Analysis of extreme pornography legislation published in (2007) New Law Journal 1142-1143.
The Criminal Justice and Immigration Act 2008 criminalizes the possession of extreme pornography,... more The Criminal Justice and Immigration Act 2008 criminalizes the possession of extreme pornography, namely, images of bestiality, necrophilia, and life-threatening or serious violence, and is the immediate context for this article which seeks to present a pragmatic liberal humanist critique of pornography regulation. Such a critique, derived in particular from the writings of Nussbaum and Rorty, presents an alternative case for regulation, eschewing the visceral competing fundamentalisms which characterized the ‘porn wars’ of the 1980s and 1990s. Whilst moral and epistemological philosophers squabble with radical feminists and radical libertarians, extreme pornography can nurture real injustice and ruin real lives. A pragmatic liberal humanism demands a pragmatic response to extreme pornography. The first part of this article will revisit the longer history of the ‘porn wars’; the second describes the parameters of a pragmatic liberal humanist critique; the third examines the shorter history of pornography regulation written into the provisions now enacted in the 2008 Act. Journal of law and society. (2009) 36 Journal of Law and Society 327-351.
(2009) 20 (1) King’s Law Journal 53-67. In the summer of 2006, a compendium of short films entitl... more (2009) 20 (1) King’s Law Journal 53-67. In the summer of 2006, a compendium of short films entitled Destricted did the rounds
at a variety of European film festivals, including Cannes and the Sundance Festival, before courting rather greater controversy at Tate Modern, and then went on limited further release in a number of art-house cinemas. Defending its presentation, the curator of Tate Modern hoped that it would stimulate an intellectual conversation, ‘get people talking’ about representations of sexuality in art, the intersection between art and porn, and the relationship between sex and violence. It was intended, he confirmed, to explore ‘the fantasy of sex’, and ‘its representation as an aspect of real life encircled by a thicket of prejudices and taboos’. It was further intended to be the first in a series of collections of short pieces of ‘erotica’, films that possess an intrinsic ‘artistic merit’ which take them
‘beyond’ a simple ‘ability to arouse’. In the end, as we shall see, such pomposity was to be devastatingly deflated. The film experienced almost uniformly appalling reviews, many of
which focused, with a due degree of jocularity, on images of root vegetables inserted in male rectums, and semi-naked Serbian milkmaids performing Pythonesque dance
routines. But the temptation to laugh, though it can serve to alleviate our collective sense of discomfort, should be resisted.
Rape and Sexual Violence by Clare McGlynn
Despite repeated legislative attempts to restrict the use of sexual history evidence in rape tria... more Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined. Lord Coleridge, giving judgment in 1887, would be forgiven for thinking that in R v Riley he had settled the law on whether sexual history evidence with parties other than the accused is relevant in rape trials. He said that in seeking to prove whether or not a criminal attempt to rape, as was the issue in that case, has been made 'upon her by A, evidence that she has previously had connection with B and C is obviously not in point'. 1 He continued that any such evidence should be excluded:
Admissibility In an earlier edition of this journal, and in the aftermath of the controversial Ch... more Admissibility In an earlier edition of this journal, and in the aftermath of the controversial Ched Evans case, Nick Dent and Sandra Paul set forth a " defence " of the current law on the use of sexual history evidence in sexual offence trials in England and Wales. They rejected arguments put forward by politicians and policy-makers—characterised as " emotive rhetoric and misconceived hyperbole " —that the ruling opens the " floodgates " to allowing sexual history evidence into trials, that the admission of sexual history evidence may perpetuate " victim-blaming " and that allowing sexual history evidence may deter complainants reporting sexual offending. This article responds to Dent and Paul by challenging the current interpretation of the law and arguing that significant reform is urgently needed. It is written with the aim of encouraging a full debate, with all available evidence being considered, as well as differing approaches and perspectives being brought into the discussion.
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Pornography and Image-Based Sexual Abuse by Clare McGlynn
such an assumption. New insights into Mill's approach to sex, sexual activity, and the regulation of prostitution reveal an altogether more nuanced and activist approach. We conclude that John Stuart Mill would almost certainly have accepted certain forms of pornography regulation and, in this light, we argue that Mill can provide the foundation for new, liberal justifications of some forms of pornography regulation.
at a variety of European film festivals, including Cannes and the Sundance Festival, before courting rather greater controversy at Tate Modern, and then went on limited further release in a number of art-house cinemas. Defending its presentation, the curator of Tate Modern hoped that it would stimulate an intellectual conversation, ‘get people talking’ about representations of sexuality in art, the intersection between art and porn, and the relationship between sex and violence. It was intended, he confirmed, to explore ‘the fantasy of sex’, and ‘its representation as an aspect of real life encircled by a thicket of prejudices and taboos’. It was further intended to be the first in a series of collections of short pieces of ‘erotica’, films that possess an intrinsic ‘artistic merit’ which take them
‘beyond’ a simple ‘ability to arouse’. In the end, as we shall see, such pomposity was to be devastatingly deflated. The film experienced almost uniformly appalling reviews, many of
which focused, with a due degree of jocularity, on images of root vegetables inserted in male rectums, and semi-naked Serbian milkmaids performing Pythonesque dance
routines. But the temptation to laugh, though it can serve to alleviate our collective sense of discomfort, should be resisted.
Rape and Sexual Violence by Clare McGlynn
such an assumption. New insights into Mill's approach to sex, sexual activity, and the regulation of prostitution reveal an altogether more nuanced and activist approach. We conclude that John Stuart Mill would almost certainly have accepted certain forms of pornography regulation and, in this light, we argue that Mill can provide the foundation for new, liberal justifications of some forms of pornography regulation.
at a variety of European film festivals, including Cannes and the Sundance Festival, before courting rather greater controversy at Tate Modern, and then went on limited further release in a number of art-house cinemas. Defending its presentation, the curator of Tate Modern hoped that it would stimulate an intellectual conversation, ‘get people talking’ about representations of sexuality in art, the intersection between art and porn, and the relationship between sex and violence. It was intended, he confirmed, to explore ‘the fantasy of sex’, and ‘its representation as an aspect of real life encircled by a thicket of prejudices and taboos’. It was further intended to be the first in a series of collections of short pieces of ‘erotica’, films that possess an intrinsic ‘artistic merit’ which take them
‘beyond’ a simple ‘ability to arouse’. In the end, as we shall see, such pomposity was to be devastatingly deflated. The film experienced almost uniformly appalling reviews, many of
which focused, with a due degree of jocularity, on images of root vegetables inserted in male rectums, and semi-naked Serbian milkmaids performing Pythonesque dance
routines. But the temptation to laugh, though it can serve to alleviate our collective sense of discomfort, should be resisted.
This confirms Maria Morales’ argument that “systematic philosophical reflection of Mill’s significant body of work on matters concerning women’s social condition has come relatively slowly and continues to suffer from considerable gaps” (“Rational Freedom”). And so, perhaps, this lacuna should not come as such a surprise, despite the central role of both the phenomenon of prostitution and Mill himself in the emergence of feminist activism and ideas. In this article, I suggest that this failure to engage with Mill’s writings on prostitution impoverishes historical and philosophical analyses of Mill himself and his philosophy, and of our understanding more generally of prostitution regulation in the nineteenth century. Drawing on Mill’s evidence before a Royal Commission investigating the regulation of prostitution via the Contagious Diseases Acts, his opinions on prostitution expressed in On Liberty and his personal correspondence, I argue that an examination of Mill’s approach to prostitution regulation can enrich our understanding of Mill’s impact on nineteenth century debates over the role of the state and law, especially in matters of morality and sexual freedom. Further, my analysis adds weight to propositions that Mill was a more radical feminist than is often assumed. Indeed, I will suggest that a study of Mill’s approach to prostitution regulation shows that, at least in his sentiments, if not in his proscriptions for law reform, he was more closely aligned to what we would now term radical feminist thinking, than is often thought to be the case.