Judges issuing harsher revenge porn sentences in Canada

As technology plays a greater role in “revenge porn” cases, Canadian judges have issued harsher sentences as a deterrent, according to research published in the “Canadian Journal of Law and Society” on May 13.

Ontario doctoral candidate Alexa Dodge, a PhD candidate in Legal Studies at Carleton University, who wrote the report, found perceptions of non-consensual intimate image distribution have “substantive impacts on legal rationales and sentencing decisions.” She told Law Times that the research comes as activists are pushing harder for these acts to be taken seriously.

“What I found in the cases . . . was that judges are seeing this harm as extremely impactful,” says Dodge.

The article looks at 49 Canadian cases, both those before and after the Protecting Canadians from Online Crime Act, enacted in 2014. In the 1990s, cases focused on putting photos in bathroom stalls or distributing tapes to mailboxes, while, more recently, judges have said technology makes the act “more impactful,” the research says.

“Not a ton of people have looked at the case law in Canada around that yet, and those who have have tended to just look at the case law since it became specifically criminalized,” she says. “I look, rather, at how this has been responded to as far back in Canadian law as I could find.”

She says defence lawyers may be interested in how judges are looking at these issues and may need to “scrutinize common assumptions (and fears) about the impact of digital/online technology.”

“This act can take multiple forms. Sometimes, it looks like bullying between youth or showing off between youth, and, other times, it involves extremely serious cases of domestic violence where images are part of that. I think, sometimes, we kind of generalize this issue and it actually has a very different nature depending on the specific case,” she says. “I think it’s important for lawyers and judges to be able to look at these cases in their specifics, especially an issue like this that’s been really popular in the media, there can become a particular idea of what these cases mean. . . . From a defence point of view — the offender motivation and the seriousness of the offenders’ acts — a youth showing off an intimate image to another youth is a very different act than when an [image] is shared in the context of a long history of domestic violence.”

Dodge raises questions in the article around how the court might treat a text message to a few people versus a paper photo that could later be uploaded to social media. Courts and the government often treat the idea that “nudes are forever” as a “self-evident” of increased harm, the paper said.

She wrote that a “more nuanced understanding of the role of digital technology demonstrates the need to assess the impact of digital technology on a case-by-case basis” and that legal practitioners “may need to take a step back from ‘common sense’ assumptions about the effects of digital technology to understand the nuances of its impact.”

“While the ease of the ‘click of a mouse’ could be used to argue that offenders should receive more lenient sentences due to a lower level of intent/planning, many judges argue that the ease of digital sharing requires a harsher response to act as a deterrent to others who wish to commit this easy offence,” Dodge wrote in the article. “The legal discourse seems to represent a widespread, though not universal, argument for punishing cases more harshly due to the affordances of digital technology.”