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Publishing Intimate Images Without Consent Goes Beyond “Revenge Porn”

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You’re probably familiar with “revenge porn,” in which a jilted or otherwise unhappy lover posts intimate photos or videos of their partner online to embarrass or punish them. And you’ve probably heard about teenagers who’ve gotten into trouble for posting, texting or otherwise sharing nude or sexually intimate photos or videos of their victims as a form of cyberbullying.

However, you might find it hard to believe that—other than photos and videos involving underage subjects—these activities were not distinctly illegal until 2015 after the 2014 passage of the “Protecting Canadians from Online Crime Act.” Prior to that, if you had photos and videos of your ex-lover in the nude or engaged in their favourite sexual gymnastics, you were free to post them to social media, text them to friends, publish them on Pornhub, or otherwise share them however you liked.

Try that today, and police can charge you with the sexual assault-related criminal offence of “publication, etc., of an intimate image without consent.” And we will repeat that this is a “criminal” offence with a maximum penalty of five years in prison. Oh, and if the intimate image involves an underage person, you’re liable to get hit with child pornography charges, too, which carry a maximum of 14 years in prison.

You undoubtedly do not want to be charged with these offences, so read on as the Greater Toronto Area criminal defence lawyers of Mass Tsang LLP detail how these offences are characterized under Canadian Law.

What the Criminal Code Says About Such Intimate Images

Section 162.1 (1) of the Sexual Offences, Public Morals and Disorderly Conduct chapter of the Canadian Criminal Code clearly defines what you cannot do with an intimate image of another person. That is: “Everyone who knowingly publishes, distributes, transmits, sells, makes available or advertises an intimate image of a person knowing that the person depicted in the image did not give their consent to that conduct, or being reckless as to whether or not that person gave their consent to that conduct, is guilty

  1. of an indictable offence and liable to imprisonment for a term of not more than five years; or
  2. of an offence punishable on summary conviction.”

Section 162.1 (2) goes on to define an intimate image by stating: “In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

  1. in which the person is nude, is exposing his or her genital organs or anal region or her breasts or is engaged in explicit sexual activity;
  2. in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
  3. in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.”

Strategizing a Defence for These Charges

As a relatively new criminal charge, sexual assault defence lawyers continue to develop effective defence strategies to protect their clients. In general, strategies rely on raising reasonable doubts about critical elements of the Crown’s case. This might involve disputing that the defendant actually published or otherwise disseminated the intimate images or that the defendant intentionally or knowingly did it—“mens rea.”

With the latter argument, it should be noted that the Code specifically states that the motives of anyone accused of publishing intimate images without consent are irrelevant under the law. This somewhat lowers the Crown’s threshold for having to prove beyond a reasonable doubt the “mens rea” criminal intent needed for conviction.

The references to “reasonable expectation of privacy” in Sections 162.1 (2) (b) and (c) are noteworthy because proving them is necessary for conviction, and they are open to interpretation. Courts initially interpreted the expression on a narrow, location-specific basis to cover places like bathrooms and changing rooms. However, the Supreme Court of Canada expanded the scope of the term in a precedent-setting 2019 decision in R. v. Jarvis 2019 SCC 10. In its decision, the court held that “the word ‘privacy’ includes the concept of freedom from unwanted scrutiny, intrusion, or attention.” This expanded the concept to cover a much wider range of locations and situations, yet it is still somewhat open to interpretation.

For example, to what extent is the victim allowed a reasonable expectation of privacy in (b) if the case involves a video of engaging in sex in the great outdoors? We are unaware of any cases in which this question has been raised yet but believe it could be a valid defence. Or, for (c), what if the victim had shared her own intimate images on Pornhub or had started barring it all on OnlyFans when the defendant published his intimate images of them? Again, we’ve not yet heard of this being raised in Ontario courts but believe it could be a valid defence.

Protecting a suspect’s Charter Rights is always vital, so experienced sexual assault lawyers also examine all elements of police content and procedures to assess whether these rights may have been violated. Charter Rights violations can lead the court to bar evidence or otherwise help the defence.

Other Reasons to Mount a Robust Defence

While a conviction for publishing intimate images without consent does not include mandatory inclusion on the Ontario or federal sex registries, the courts can issue an order banning or restricting the defendant’s use of the Internet or other digital network. As previously noted, if anyone depicted in the intimate images is under the age of 18, the defendant likely faces any number of child pornography charges listed under Section 163.1 of the Code. A conviction on any of these charges carries much stiffer penalties than publishing intimate images without consent and will definitely lead to inclusion on the sexual offender registries.

Let Mass Tsang Defend You Against Any Sexual Assault Charges

Given the significant penalties that a conviction of publishing intimate images carries, you cannot afford to defend the charges on your own. Turn to the long-term experience of the skilled criminal defence assault lawyers at Mass Tsang. With decades of criminal defence success, contact us for a free consultation if you or a loved one is facing these charges in the Greater Toronto Area.

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