Six teenage boys dubbed the “Dropbox Six” were recently sentenced to a conditional discharge after pleading guilty to sharing “intimate images” contrary to s. 162.1(1) of the Criminal Code. The boys—who ranged in age from 13 to 16 at the time of the offences—shared nude and semi nude images of 19 girls via a Dropbox folder. None of the females provided victim impact statements, however news reports indicate that some of the young women were very hurt by this breach of trust and wanted the matter to be taken seriously. Without denying the emotional distress some may experience when their nude images are shared without permission, criminal law is not only a blunt tool, it’s the wrong tool, for responding to cases such as this one.
The failures of law to address the vast majority of non-consensual intimate image distribution (NCIID) cases becomes clearer when we make an effort to understand why someone might distribute another person’s “nude” without permission. This requires some acknowledgement of the role of images in young people’s lives. Indeed, according to some scholars, digital images are the same as words for young people (insert surprised-face emoticon here). They constitute “visual conversations” or a form of “visual texting”. Teens, it’s been found, routinely refer to the act of photosharing via Snapchat as “sending a message” rather than as “sending a photo” and describe their interactions as “chatting through pictures.”
Placed in this framework “non-consensual sharing” can be conceived of as a modern day expression of the sexual rumour mill. Allow me to paint a picture. If you’re over 30 you’ve probably written or received a love letter that read: “Do you like me? Yes? No? Check one.” In high school, you may have dialed your crush on the landline and whispered sweet-nothings in their ear. Maybe, if you’re like me, you even dared to engage in a bit of awkward but steamy phone sex. If you’re a teen today, you’ve probably gone online to rate your crush as ‘hot’ or to flirt on Chatroulette. Or, maybe you’ve used Snapchat to send a nude. Technology, it seems—from paper and pens to cell phones—has always been used by youth to connect, explore, communicate desire, and to move things to the next level.
Recipients of love-notes, phone calls, on-line ratings, and yes, now nudes, commonly share these tech-facilitated expressions of interest with others without permission. They do so for a variety of reasons. Maybe they see these as proof of their desirability or as evidence of the other person’s intentions towards them (go steady/date/hook-up), and they want others to know about this. Or, maybe they share because they want to communicate information about that person’s character (bold, pathetic, promiscuous) to others. Motivations are varied and range from getting a laugh, expressing excitement, or just plain spitefulness.
Historically, no one has asked the love-letter writer, the caller, the clicker, and now, the photographer, if their ‘words’ can be shared. They just have been. Not all of the time, but a lot of the time, because that’s what we’ve been doing with words forever. This is the nature of the sexual rumour mill. It is a communication norm that has never involved the acquisition of ‘consent’. By acknowledging this, I am in no way “blaming the victim” or even “excusing the redistributor.” I am, however suggesting that this communication norm, and the role of technology in spreading rumours, needs to be more carefully considered. Indeed, the sexual rumour mill has always been the source of embarrassment, humiliation and other sorts of negative, and sometimes serious, consequences, but we’ve never criminalized youth for taking part in it, until now.
Placing NCIID on this continuum, or in these terms, can help us understand why a teen that receives a nude image might not ask if they can share the image with others. Admittedly, however, the sexual rumour mill is not the only frame of reference for making sense of NCIID. The fact remains that image-based “chats” or “messages” can be, and have been, largely framed as an extension of mainstream porn, or via the wide-angle lens of our child pornography laws. Legislators have already realized the distorting and stigmatizing harms of the latter, hence the development of our new intimate image laws. But anti-porn sentiments—including present day sex panics about “porn as a public health crisis”—continue to negatively affect how we make sense of, and respond to, the sharing of nude pictures without permission.
Viewed through this lens, young people involved in image distribution are re-cast as ‘victims’ and ‘perpetrators’. Parents, legislators and the courts describe girls whose nudes have been shared as ‘objectified’ and ‘humiliated’ while boys are labeled ‘groomers’ and ‘exploiters’. According to new research, however, police reveal that pressure to charge often comes from parents and schools and not from the youth “victims.” Indeed, many police claim that youth commonly tell them that they don’t want a criminal justice response because they don’t want their peers to get in trouble; because of the length of time the courts take; and, because they just want the pictures to be taken down and for the rumour mill (my words, not necessarily theirs) to stop.
There are instances of NCIID that may necessitate some formal legal response. In general, however, anti-porn and child-porn panics distort our perceptions of the young people involved in the large majority of these cases. This is further evidenced by the fact that rarely do parents, police or the courts acknowledge that boys are regularly “victims” and girls “perps” of NCIID. If this is acknowledged and responded to in law, my experience demonstrates that other variables such as race, class and sexual orientation of the ‘perpetrators’ are factors in deciding whether to prosecute and to what extent.
Of course, I realize that when we are talking about nude picture sharing, we are talking about the expansion of the rumour mill beyond school boundaries and our local communities. Given how fast and far one’s image can go, fears about young women becoming international “porn stars” in-spite of themselves tacitly drive concerns about young women’s emotional health and their future employability. It’s one thing for me—a sexuality studies scholar with positive views of pornography—to say to these young women that they have nothing to be ashamed about, or to say to their potential employers that there is nothing about their images that disqualifies them for employment. It’s another thing altogether for a young person or an employer to feel that way. And, while I would never deny a person their experience of NCIID, I would say that both their subjective feelings, and the potential employer’s decision to discount them for a job, are informed by discriminatory attitudes to consensual sexual expression—as at best, “low value speech”, and at worst inherently degrading, dehumanizing and a violation of women’s sexual autonomy—that have tended to go unchecked. Maybe, if we thought more highly of the pleasures and benefits of consensual sexual speech, than the existence and discovery of an intimate image at some point in a person’s future would not be so threatening to their sense of sexual autonomy or to their employability.
Ultimately, we need to be more creative, and do less harm with our responses to speech that we don’t like because it offends or causes emotional distress. Non-consensual sharing of nudes, to the extent that it can be viewed as a present day manifestation of tech-facilitated sexual rumour mill, may constitute speech that is offensive and can cause much distress. Nevertheless, given the numerous failures of the criminal justice system and the fact that youth prosecutions are not meant to serve as general deterrence to other young people, our first response should always be transformative justice practices within the communities and outside the boundaries of the criminal law. If criminal law provisions must be retained, we need to allow “sexual crimes” such as NCIID to be referred to restorative justice without requiring a guilty plea and thus the development of a criminal record, as was the situation in the Bridgewater Dropbox case.
*Full disclosure, I was hired by the boys’ defence lawyers to comment on the Crown Attorney’s description of non-consensual intimate image distribution (NCIID) in its sentencing brief. I am a criminologist and a gender, sexuality, and porn studies scholar and I have provided expert opinions in two prior cases where youth have been charged with child pornography offences for non-consensually redistributing another teen’s “nudes.”