The UK Law Commission report on reforming the criminal law as it relates to intimate image abuse features the following recommendations
Recommendation 1. 17.1 We recommend that an image which: (1) shows something that a reasonable person would consider to be sexual because of its nature; or (2) taken as a whole, is such that a reasonable person would consider it to be sexual, should be included in the definition of an intimate image. The definition of sexual should be applied only to the person depicted in the image itself, without considering external factors such as where or how the image was shared..
Recommendation 2. 17.2 We recommend that the Government consider the behaviours of downblousing and taking “creepshots” in public as part of any review into the need for a specific offence of public sexual harassment.
Recommendation 3. 17.3 We recommend that the definition of nude and partially nude should include female breasts and female breast tissue, which would include the chest area of: (1) trans women, whether they have breast tissue or not, and regardless of whether any breast tissue is the result of hormonal or surgical treatment; (2) women who have undergone a mastectomy; (3) girls who have started puberty and are developing breast tissue; and (4) non-binary people and trans men who have female breast tissue.
Recommendation 4. 17.4 We recommend that any garment which is being worn as underwear should be treated as underwear for the purpose of an intimate image offence.
Recommendation 5. 17.5 We recommend that the definition of “nude or partially nude” should include images which show the victim similarly or more exposed than they would be if they were wearing underwear. This includes images that have been altered to appear similarly or more exposed.
Recommendation 6. 17.6 We recommend that the definition of an intimate image should include nude and partially-nude images, defined as images of all or part of a person’s genitals, buttocks or breasts, whether exposed, covered with underwear or anything being worn as underwear, or where the victim is similarly or more exposed than if they were wearing only underwear.
Recommendation 7. 17.7 We recommend that the definition of an intimate image should include toileting images, defined as images of a person in the act of defecation or urination, and images of personal care associated with genital or anal discharge, defecation or urination.
Recommendation 8. 17.8 We recommend that it should be an offence to take or share, without the consent of the person depicted, an image that falls within the definition of “toileting”.
Recommendation 9. 17.9 We recommend that an intimate image be defined as an image that is sexual, nude, partially nude, or a toileting image.
Recommendation 10. 17.10 We recommend that the Government consider whether any further offences are necessary to ensure the behaviour of exposing someone to a serious risk of significant harm in the context of an abusive dynamic is appropriately criminalised.
Recommendation 11. 17.11 We recommend that the Crown Prosecution Service consider including intimate image offences in the list of offences in their guidance on so-called honour-based abuse and forced marriage.
Recommendation 12. 17.12 We recommend that images that only show something ordinarily seen on a public street should be excluded from intimate image offences, with the exception of intimate images of breastfeeding.
Recommendation 13. 17.13 We recommend that images where the victim is not readily identifiable should not be excluded from intimate image offences.
Recommendation 14. 17.14 We recommend that the act of “taking” an image should form a component of our recommended intimate image offences. 17.15 “Taking” should be understood using the ordinary meaning of the term. It should include any means by which a relevant image is produced, including taking a photo or video with a camera whether digital or analogue and using a device to capture a photograph or video, whether using the camera or an app. 17.16 “Taking” an intimate image which is instantaneously modified by software – such as through a filter – should also be included in a “taking” offence.
Recommendation 15. 17.17 The definition of “taking” an image should only include such behaviour where, but for the acts or omissions of the defendant, the image would not otherwise exist. Paragraph 4.50
Recommendation 16. 17.18 We recommend that it should be an offence for D to install equipment with the intent of enabling D or another to commit the offence of taking an intimate image without consent. Paragraph 4.88
Recommendation 17. 17.19 We recommend that the behaviour prohibited by the current voyeurism and “upskirting” offences should be combined in a single taking offence.
Recommendation 18. 17.20 We recommend that it should be an offence to share an intimate image without consent. 17.21 The definition of sharing should include all behaviours that have directly made the intimate image available to another. This should include physical posting, showing, or displaying, sharing on social media, peer to peer messaging, or making the image available digitally through transferring a file, sending an encrypted file, saving the image at a specific location and enabling someone to access it, sending a link, or other instructions on how to access the file from a place where the sender has stored it. 17.22 The definition of sharing should not include “secondary sharing” in cases where a person D has informed a third person E where to find an image (for example, by sending a link to a website) that another person F has made available there, D has not shared the image itself or otherwise made the image available, and the image was already available to E.
Recommendation 19. 17.23 We recommend that offences of sharing intimate images without consent should include sharing with the person depicted.
Recommendation 20. 17.24 We recommend that it should not be a criminal offence simply to “make” an intimate image without the consent of the person depicted.
Recommendation 21. 17.25 We recommend that sharing offences, including threats to share, should include images that are intimate as a result of altering, and that are created (whether by digital or non-digital means) if the altered or created image appears to be an intimate image of a person.
Recommendation 22. 17.26 We recommend that it should not be an offence to possess an intimate image without the consent of the person depicted. 17.27 If an offence based on possession of an intimate image without consent were to be introduced, we recommend that this offence should be limited to circumstances of possession where the victim never consented to the possession of the image by the defendant.
Recommendation 23. 17.28 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent to the taking or sharing; and (b) D does not reasonably believe that V consents.
Recommendation 24. 17.29 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent; and (b) D does so with the intention of causing V humiliation, alarm or distress or with the intention that D or another person will look at the image for the purpose of causing V humiliation, alarm or distress.
Recommendation 25. 17.30 We recommend that it should be an offence for a person D intentionally to take or share a sexual, nude, partially-nude or toileting image of V if — (a) V does not consent; (b) D does not reasonably believe that V consents; and (c) D does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at the image of V.
Recommendation 26. 17.31 We recommend that the Government consider reviewing the statutory guidance for the offence of controlling or coercive behaviour in light of the recommendations in this report, and the evidence of intimate image abuse perpetrated in the context of abusive relationships in this report and the consultation paper.
Recommendation 27. 17.32 We recommend that the Sentencing Council consider reviewing the sentencing guidelines for domestic abuse offences in light of the recommendations in this report, and the evidence of intimate image abuse perpetrated in the context of abusive relationships in this report and the consultation paper.
Recommendation 28. 17.33 We recommend that for all additional intent intimate image abuse offences, the magistrates’ court and the Crown Court should be empowered to find the defendant guilty of the base offence in the alternative.
Recommendation 29. 17.34 We recommend that the base offence should be summary only with a maximum sentence of six months’ imprisonment. 17.35 We recommend that the additional intent and threat offences should be triable either way with a maximum sentence of two or three years’ imprisonment on indictment, or a term not exceeding the general limit in a magistrates’ court on summary conviction.
Recommendation 30. 17.36 We recommend that the consent provisions in sections 74 to 76 of the Sexual Offences Act 2003 should apply to intimate image offences. Paragraph 8.38 Recommendation 31. 17.37 We recommend that proof of actual harm should not be an element of intimate image offences.
Recommendation 32. 17.38 We recommend that where a defendant is charged with taking or sharing an intimate image without consent, and: (1) the intimate image was taken in a place to which members of the public had access (whether or not by payment of a fee); and (2) the victim was, or the defendant reasonably believed the victim was, voluntarily engaging in a sexual act or toileting, or was voluntarily nude or partially nude, the prosecution must prove that, in the circumstances as the defendant reasonably believed them to be, the victim had a reasonable expectation of privacy in relation to the taking of the image.
Recommendation 33. 17.39 We recommend that a victim who is breastfeeding in public or is nude or partially nude in a public or semi-public changing room has a reasonable expectation of privacy in relation to the taking of an intimate image.
Recommendation 34. 17.40 We recommend that it should not be an offence to share an intimate image without the consent of the person depicted where: (1) the intimate image has, or the defendant reasonably believed that the intimate image has, previously been shared in a place (whether offline or online) to which members of the public had access (whether or not by payment of a fee), and (2) either the person depicted in the image consented to that previous sharing, or the defendant reasonably believed that the person depicted in the image consented to that previous sharing, unless (3) the person depicted subsequently withdrew their consent to the image being publicly available and the defendant knew that they had withdrawn that consent. Paragraph 10.178
Recommendation 35. 17.41 We recommend that there should be a defence of reasonable excuse available to our recommended base offence which includes: (1) taking or sharing the defendant reasonably believed was necessary for the purposes of preventing, detecting, investigating or prosecuting crime; (2) taking or sharing the defendant reasonably believed was necessary for the purposes of legal or regulatory proceedings; (3) sharing the defendant reasonably believed was necessary for the administration of justice; (4) taking or sharing the defendant reasonably believed was necessary for a genuine medical, scientific or educational purpose; and (5) taking or sharing that was in the public interest. 17.42 We recommend that the defendant should bear the legal burden of proof to establish the defence on the balance of probabilities.
Recommendation 36. 17.43 We recommend that it should not be an offence: (1) to share an intimate image of a young child if it is of a kind that is ordinarily shared by family and friends; (2) for family and friends to take an intimate image of a young child if it is of a kind that is ordinarily taken by family and friends. The burden should be on the prosecution to prove that this exclusion does not apply in cases where it is relevant.
Recommendation 37. 17.44 We recommend that it should not be an offence for a person D to take or share an intimate image of a child under 16 (P) in connection with P’s medical care or treatment where: (1) when doing the act, D reasonably believes (a) that P lacks capacity to consent to the taking or sharing; (b) the taking or sharing will be in P’s best interests; and (2) if D does not have parental responsibility for P, someone with parental responsibility for P has given valid consent to the taking or sharing in connection with P’s care or treatment. The prosecution must prove that this exclusion does not apply in relevant cases. Paragraph 11.225
Recommendation 38. 17.45 We recommend that the same definition of “intimate image” is used for both the offences of sharing and threatening to share an intimate image.
Recommendation 39. 17.46 We recommend that the offence of threatening to share an intimate image should include implicit and conditional threats.
Recommendation 40. 17.47 We recommend that the offence of threatening to share an intimate image should include threatening to share an intimate image that does not exist and other circumstances where it is impossible for the defendant to carry out the threat.
Recommendation 41. 17.48 It should be an offence for D to threaten to share an intimate image of V where: (a) D intends to cause V to fear that the threat will be carried out; or (b) D is reckless as to whether V will fear that the threat will be carried out.
Recommendation 42. 17.49 We recommend that the Sentencing Council consider whether an intent to control or coerce should be an aggravating factor at sentencing for the offence of threatening to share an intimate image.
Recommendation 43. 17.50 We recommend that the prosecution should not have to prove that the person depicted did not consent to the act of sharing that is the subject of the threat.
Recommendation 44. 17.51 We recommend that it should be an offence to threaten to share an intimate image of V, whether the threat is made to V, or to a third party.
Recommendation 45. 17.52 We recommend that, where a threat is made to a third party, the prosecution should not have to prove that the recipient of the threat did not consent to the act of sharing that is the subject of the threat.
Recommendation 46. 17.53 We recommend that section 75 of the Sexual Offences Act 2003 be amended so that a threat to share an intimate image made by the defendant or another triggers an evidential presumption that there was no consent to sexual activity and that the defendant had no reasonable belief in consent to sexual activity, provided that if the defendant did not make the threat, they knew that it had been made.
Recommendation 47. 17.54 We recommend that complainants of the new intimate image offences should have automatic lifetime anonymity.
Recommendation 48. 17.55 We recommend that complainants of the new intimate image offences should automatically be eligible for special measures at trial.
Recommendation 49. 17.56 We recommend that restrictions on the cross-examination of complainants of sexual offences should extend to complainants of the new intimate image offences.
Recommendation 50. 17.57 We recommend that notification requirements should be automatically applied for the offence of taking or sharing an intimate image without consent for the purpose of obtaining sexual gratification when an appropriate seriousness threshold is met. 17.58 This threshold should be met if: (1) where the offender was under 18, he is or has been sentenced in respect of the offence to imprisonment for a term of at least 12 months; (2) in any other case— (a) the victim was under 18, or (b) the offender, in respect of the offence or finding, is or has been— (i) sentenced to a term of imprisonment, (ii) detained in a hospital, or (iii) made the subject of a community sentence of at least 12 months.
Recommendation 51. 17.59 We recommend that Sexual Harm Prevention Orders should be available for all of our recommended intimate image offences.
Recommendation 52. 17.60 We recommend that Government consider making available to the courts a power of forfeiture or destruction in respect of intimate images possessed without consent by an offender following the commission of a taking offence.
Recommendation 53. 17.61 We recommend that the Crown Prosecution Service consider producing prosecutorial guidance specific to children and young people for new intimate image offences.
Recommendation 54. 17.62 We recommend that the Government consider whether intimate image offences would benefit from specific extra-territorial statutory provision.
