On November 2, 2018, the Science and Technology Law Brief held two panels on sexual violence and technology. The first panel focused on adult sexual violence and was moderated by Ian Harris, a WCL Professor who also works with the National Network to End Domestic Violence. The panel included Ms. O’Connor from Rape Abuse Incest National Network (RAINN) and Mr. Wilkinson from Aequitas. The panelists focused on three major problems at the intersection of sexual exploitation and the internet: the production of explicit images; the dissemination of said images; and the intervention of law enforcement and advocates.
The panel explained the three categories of explicit images and how each one is produced. The first type of image is produced voluntarily or involuntarily by a victim. The majority of explicit images fall under this umbrella, which may involve blackmail of coercion; this is also where most images classified as “revenge porn” originate. The panelists did discuss the danger of using the term “revenge porn”, however, as it implies that the image was taken and/or disseminated with the express intent of revenge use. The second way an explicit image is created is by the defendant voluntarily or nonconsensually. This type of image could be taken consensually by the perpetrator, and falls under criminal law when it is disseminated without the subject’s consent. These images could also be taken under duress or without the subject’s knowledge, which would imply criminality from the beginning. The third and most terrifying type of explicit image are images that are not real, that are edited to appear like images of a particular person when that person never posed for the photo. The panelists explained that the type of image matters because sexual violence and harassment laws have not kept up with technology and modern relationships. Some current laws focus on the intent of the person taking the image. Thus, if a subject consents to the image being taken or takes the image and gives it to the perpetrator the intent of the producer may not be such as to hold them liable. Further, some states do not have any good laws on the subject.
In their discussion of the distribution of explicit images, the panelists focused on how legislation has failed to keep up with technology. One issue is when a perpetrator does not send the image to others but shows it to people on the same device it was sent to originally. Thus causes chain-of-custody problems. As an evidentiary matter it’s more difficult to prove dissemination without records of images being electronically sent. Another issue is that the legal burden far too often falls on the victim to go after each person responsible for disseminating the image in order to get restitution. Further, currently, the threat of distribution is not necessarily part of statutes.
Ms. O’Connor and Mr. Wilkinson are particularly interested in Intervention due to their collaboration with law enforcement and victims’ advocates. They explained that the key to domestic violence response is collaboration; the first person a victim talks to is key as that person can educate the fact finder and the victim on his or her rights. Identifying where an image is, documenting evidence, and containing the image are all integral steps at the early stages of an incident.