Taking and sharing intimate images without consent – Law Society response

The proposals

The Law Commission conducted a review of the existing criminal law as it relates to taking, making and sharing intimate images without consent.

The review:

• considered the existing criminal law in respect of non-consensual taking and sharing of intimate images
• assessed whether the current law is capable of dealing adequately with these behaviours
• looked at the current range of offences which apply in this area
• identified gaps in the scope of protection currently offered

The review made provisional proposals to ensure that the criminal law provides consistent and effective protection against the creation and sharing of intimate images without consent.

It recommended a series of new offences:

1. a “base” offence of taking or sharing an intimate image of a depicted person where they do not consent and the defendant has no reasonable belief in consent
2. 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
3. a further additional serious offence of taking or sharing an intimate image without the consent of the depicted person – and the defendant having no reasonable belief in consent – for the purpose of sexual gratification (either their own or someone else’s)
4. threatening to share an intimate image, where either the threat is intended to cause the depicted person to fear that the image will be shared, or the defendant is reckless as to whether the depicted person will fear the threat will be carried out

Read the consultation

Our view

We welcomed the consultation and proposed changes to the law leading to the implementation of criminal offences for the sharing of intimate images.

This area of the law has required change to reflect the changes in society, and to ensure victims of these offences have their privacy protected.

However, we were concerned that many of the victims, and those taking these images will:

• belong to the same peer groups
• often be teenagers or young adults

As a result, we’re concerned that these new offences could unduly criminalise young people who may not realise that taking or sharing such images is a criminal offence.

The rule of law requires that the criminal law should be proportionate, and only criminalise behaviour that warrants a criminal sanction.

It is essential that unnecessary prosecutions do not burden an overloaded justice system; likewise, unnecessary prosecutions are not in the interests of victims and witnesses.

If the law changes, we believe that it’s very important that there’s a public education campaign about the new offences – particularly in schools and universities – so that people are aware of the criminal consequences of taking and sharing intimate images without consent.

The ways such images can be taken or shared are likely to develop over time. Therefore, both the offences and the guidance on how they are prosecuted will need to be kept under review.

What this means for solicitors

If the Law Commission’s proposals on intimate images are enacted into law, criminal solicitors (whether prosecutors or for the defence) will need to familiarise themselves with the new offences.

Next steps

The consultation closed on 27 May 2021.

The Law Commission will consider the responses it has received from interested organisations and individuals, and consider what, if any, changes may need to be made to its provisional proposals.