Laws Surrounding Revenge Porn Fail to Consider Gender and Sexuality

“Revenge porn” has come back into Canada’s conversation—only this time, UBC student Moira Aikenhead hopes that changing the way it is tried will help put the blame back on the perpetrators.

Revenge porn is sexually explicit material released online without the consent of—and usually, to harm the reputation of—one of the involved parties. The victim does not always know the person leaking their sensitive information, though it tends to be intimate content that former partners publish in order to get back at their exes.

It became illegal in 2015 under the Protecting Canadians from Online Crime Act, with the maximum punishment for offenders being up to five years in prison. This legislation—also known as Bill C-13—was enacted following the suicides of Amanda Todd and Rehtaeh Parsons, both of whom were targeted by revenge porn leading up to their deaths.

Aikenhead investigated the first six revenge porn court cases tried following the enactment of Bill C-13 in the Canadian Journal of Women and the Law. She found that “the legislation frames the crime as one based on lack of consent and breach of privacy.”  

She believes that the focus on privacy violation, rather than gender-based violence, allows for victims to be criticized and treated unfairly for agreeing to take intimate photos or videos of themselves at all. Similar to sexual assault cases, the actions of the victim—rather than those of the accused—are questioned in this situation.

The problem with the Protecting Canadians from Online Crime Act is that its main focus is on cyber-bullying, and many cases on revenge porn are too complicated to be put into that category. For example, B.C.’s very own Richard Reiss, whose pseudonym is Patrick Fox, was not charged under the act despite creating a website for the sole purpose of destroying his ex-wife’s reputation. Instead, he was found guilty of criminal harassment and the illegal possession of a firearm, making his offense the first of its kind in Canada to be charged due to online activity.

Reiss’ actions to hurt his former partner are similar to behaviours seen in many domestic abuse cases. He emailed her daily, publicly shamed her, and vowed to continue harassing her for the rest of her life. Not only did the online harassment cause her to lose her job, but if it wasn’t for Reiss being deported from the U.S. back to Canada, it could have gotten worse.

According to a study posted by the Center for Innovative Public Health Research in the United States, 17 per cent of American LGB internet users have had other individuals leak or threaten to leak their intimate photos and videos. Now, compare this with to the two per cent of heterosexual internet users that the study found were impacted by revenge porn.

What’s more, approximately one in 10 women under the age of 30 have been threatened with the possibility of having their intimate photos made public. This differs dramatically from a mere privacy violation—it is a problem that is very much influenced by gender and sexual orientation, and that needs to be reflected in the law.

Revenge porn won’t stop damaging lives until non-heterosexual sex is not seen as taboo and female sexuality is not seen as immoral. There is a reason why most of the cases do not involve straight men as victims, and it’s because their sexuality isn’t normally weaponized as a tool for dismantling their lives. Aikenhead’s suggestion to change the charge from a privacy violation to gender-based violence is valid, but it fails to acknowledge the way that LGB folk are also targeted.