Sexting Has Nothing To Do With Consent

The CPS' failure to prosecute rape effectively is not because they got the tech wrong, but because of misogyny, writes Ann Olivarius.
Tero Vesalainen via Getty Images

The new Crown Prosecution guidelines for prosecuting sexual offenses are a welcome and deeply needed attempt by the CPS to join the rest of us in 2020, where most of us are glued to the phones we use to conduct a large part of our social and romantic lives.

The guidelines focus in particular on the new landscape of online image sharing and dating apps, and they are sorely needed.

The numbers are, frankly, catastrophic – only 3% of rape claims result in a conviction. Survivors are not responsible for the sexual violence meted out to them, the perpetrator is.

However, our current justice system seems not fully on board with this fundamental principle.

It remains, in other words, incredibly difficult to prosecute rape successfully in the UK. Perpetrators are aware that the criminal justice system seldom punishes them and victims are learning that it equally seldom protects them.

But CPS’s failure to effectively prosecute rape is not because they got the tech and how “kids these days use it” wrong in the eight years since the last guideline review. It’s because they’ve gotten the core concept of consent wrong for a long time.

Ninety percent of rapes are committed by someone who knows the victim. Unsurprisingly, people who know each other tend to keep in touch, through text, email and phone. That can include sending intimate pictures and flirty text messages, an activity now so widespread it’s become the norm rather than the exception. Requiring victims of sexual assault to hand over their phones to the police, with their gigabytes of data, is not only a gross violation of victims’ privacy and that of their families and friends (quick, think of how much information on other people your phone holds), it doesn’t even yield much usable information for the prosecution. Having sent a naked selfie proves only that – that you’ve consented to sharing a naked selfie with one person, one time. That’s all anyone, including the CPS, could ever deduce from that piece of information.

Receiving an intimate picture doesn’t magically render someone incapable of rape, just like sending it doesn’t render someone unrapable. Not too long ago (until 2003) we similarly struggled with legally understanding that when a woman said “I do” it didn’t mean she said “I always will”. It used to be legal for men to rape their wives, too.

As someone who’s fought non-consensual image sharing right from the start, I couldn’t be happier to see that the new CPS guidelines state that sending an intimate picture isn’t a blanket consent to sex or anything else. The law does not see it necessary to make that explicit in other contexts. If I wire you five pounds I don’t give you permission to empty my bank account. If I invite you in for a cup of tea, I don’t invite you to raid my pantry or burn my house down. It’s time we applied the same simple principle of consent to sex.

While we’re at it, we could update our general assumptions about intimate pictures, consent and sharing. The Law Commission started its review of the so-called revenge porn legislation in June 2019, and we eagerly await its result. The current pandemic has only made it more needed, with the explosion of online based privacy violations. One change we are particular keen to see is that victims of non-consensual image-sharing are granted the same automatic anonymity as victims of sexual assault. As it stands, too often our clients often don’t experience much understanding from the police when they come to them with complaints of non-consensual picture sharing and online harassment. Too many are met with either ignorance about the current law and/or the technology involved or an attitude of “Well, why did you send it in the first place then?”. All are tremendously damaging to victims, and one reason why we see an increase in civil cases in this area.

What victims need and deserve is to be met with professionals who understand how harsh the impact can be of image-based sexual abuse and will focus on holding the perpetrator to account and mitigating the damage caused. Shifting the focus from irrelevant things the victims have done, worn or shared to whether or not consent was, or could have been, present is how we bridge the horrifying discrepancy between how many complaints the public brings to the police and how vanishingly few of those cases the CPS prosecutes. The CPS has made a start with these new guidelines and we welcome them, but the key word to remember is “consent”, not “tech”.

Dr Ann Olivarius is founding partner of McAllister Olivarius Law and ConsentLawyers, specialising in online privacy violations and other forms of digital harassment.


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