Revenge Porn Offenders Could Avoid Jail Under New Sentencing Guidelines

But under new and long-awaited sentencing guidelines from the UK authorities, some revenge porn offenders may be spared jail and punished with non-custodial sentences and fines.

The UK Sentencing Council—the body responsible for determining how criminal offences should be punished—released their proposed guidelines yesterday for public consultation. As in the US, judges use their discretion in applying sentences, but they must operate within set guidelines. (Revenge porn was first made illegal in 2015 in the UK.)

While the Sentencing Council states that "any offence of this type can cause very serious distress to the victim," certain aggravating factors are judged to make the offence more serious, and therefore more likely to attract a prison sentence. According to the guidelines, a judge would determine high culpability for the crime if the perpetrator's conduct is "intended to maximize distress… examples could include sending images to a victim's family who are very religious, or to a victim's young sibling." Perpetrators judged to have maximized distress could be eligible for the strongest punishment available under the law: two years imprisonment.

It's important to emphasize that victims are not required to have religious parents or young siblings for perpetrators to be given a custodial sentence. Culpability is also determined by a number of factors, including the level of planning that went into committing the revenge porn offence. Judges will use two determinants—culpability and harm caused to victims—to determine sentencing, so an offender who spent a lot of time planning the offence could still go to jail even if a victim doesn't have a religious family or a young brother or sister. However, cases judged to have low culpability and low harm to the victim will be punished with non-custodial sentences and fines.

But judging that an accused perpetrator who sent these images to a woman's Catholic parents is worthier of a jail sentence than one who sent it to a victim's atheist family ignores the devastating and unique impact that revenge porn has on all its victims.

We've also seen, time and again, that misconceptions about what constitutes victimhood cause judges to misuse their discretion in sentencing. Only days ago, a British judge ruled that a man who poured bleach down his wife's throat and beat her repeatedly with a cricket bat wouldn't be jailed because he was "not convinced she [was] a vulnerable person."

Watch: Inside the Torturous Fight to End Revenge Porn

Clare McGlynn, an expert in revenge porn and a professor of law at the University of Durham, is critical of the new guidelines. "Every time a private sexual image is shared without consent a serious offence is committed," she says. "It should not matter whether the victim experiences 'severe distress' or is 'vulnerable.' The offence has been committed and it is a serious breach of an individual's rights to privacy and sexual freedom, regardless of how 'vulnerable' they are."

Determining the severity of a crime by judging if the person affected fits into a stereotype of vulnerability and victimhood is an inherently flawed premise, McGlynn explains. "Women (and women are mainly the victims of this gendered offence) should not have to show or prove any severe distress or vulnerability. Victims should be allowed to be seriously angry and outraged that their rights have been breached—not necessarily 'vulnerable'—and still expect justice and appropriate punishment."

Meanwhile, a British police commissioner has criticized the guidelines. Speaking to the York Press, Julia Mulligan, Police and Crime Commissioner for North Yorkshire "took issue" with the short length of some sentence guidelines.

"There is an implication that there can be minimal harm felt as a victim of these crimes, but I do not think such a thing exists," Mulligan said. "Having your private sexual photos shared, or your partner control your behavior, will always be serious, and I will be suggesting to the Council that some of their minimum sentences are bolstered."

Update: This article has been amended to clarify the sentencing guidelines.