Revenge Pornography in Divorce and Family Cases

By Jessica Rush, Jennifer Harper & Elizabeth Morley

Earlier this year, the BBC broadcast its thoughtful documentary on the impact of "revenge porn" on the lives of young women, focusing on the narrative of Zara McDermott, who became a victim of this issue when her images were circulated after she shot to fame on Love Island. The documentary reignited a national conversation, and it is clear that revenge porn is a common and harmful issue.   Research in 2020 by the charity Refuge indicated that one in 14 adults in the UK have been threatened with the exposure of intimate images and videos, and this rises to 1 in 7 young women aged 18 to 34.

In a family law context, the issue of revenge porn can be particularly insidious, and can affect anyone, of any gender or age, whether or not they have a public profile like Ms McDermott.

There are numerous circumstances where this may come up in a divorce or family case. For example:

• An ex-partner may be seeking to control you, or pressure you into agreeing matters of finances or child contact, by threatening to share intimate material with others;
• The breakdown of the relationship had been caused by, or been worsened by, the release of revenge porn by your ex-partner;
• Someone has shared revenge porn released by someone else with your ex-partner; or
• During the relationship, pictures or videos were taken of you without your consent or knowledge. 

When it arises in family cases, there is no one-size-fits-all approach to the issue, except that it is always appropriate to treat it as a serious and damaging betrayal of trust. In this article we look at how revenge porn can be dealt with in the context of a relationship breakdown.

Can my ex-partner be prosecuted? 

Ms McDermott explored the possibility of criminal prosecution in her documentary, and although this is an evolving area of law, there are options for the victims:

Revenge Porn

It is an offence under Section 33 of the Criminal Justice and Courts Act 2015 to disclose private sexual images without consent and with the intent to cause the person depicted distress.

The offence will apply to any kind of disclosure, including uploading an image to the internet, sharing it by text or email, or showing someone a physical image. It is also an offence to forward an image on to others without consent if the purpose, or one of the purposes, for doing so was to cause distress to the person depicted in the image. 
It is important to remember that consenting to your partner having intimate images of you is not consent to other people seeing those images - this would be akin to saying that if you take up boxing in the gym, you also consent to being punched in the face by anyone in the street.

Ms McDermott's documentary left the question of intent somewhat ambiguous - what does it mean to intend to cause distress? The answer to this will turn on the facts of each individual case and will require a consideration of your ex-partner's foresight of the distress that may have been caused by disclosing the image and whether they had a desire to act in a way to achieve that distress.

Revenge porn is a serious offence and if your ex-partner is convicted, they could face a sentence of up to 2 years in prison.

Blackmail

While Ms McDermott highlighted that the CJCA 2015 does not criminalise making threats to release intimate images, it is still an offence under the law against blackmail (i.e. s21 of the Theft Act 1968) for your ex-partner to threaten to release intimate images in an attempt to force you to agree to settlement in financial proceedings.

As part of a wider pattern of abuse

It is also an offence under the Serious Crimes Act 2015 for your ex-partner to engage in coercive and controlling behaviour. While this does not criminalise revenge porn or threats specifically, such behaviour can be considered 'coercive and controlling', or form part of a pattern of coercive and controlling behaviour. The Crown Prosecution Service's list of behaviours it would consider 'coercive and controlling' includes:

• Threats to reveal or publish private information;
• Enforcing rules and activity which humiliate, degrade or dehumanise the victim;
• Reputational damage.

As part of a pattern of harassment or stalking

Repeated threats to disclose intimate sexual images, or repeated disclosures, may also amount to a separate offence of harassment under the Protection from Harassment Act 1977.

Similarly, if this is coupled with other negative behaviours such as your ex-partner repeatedly forcing contact, spying on you or following you, it may also amount to an offence of stalking under the same act.

If your ex-partner is convicted of any of these offences, they may face prison time.

What if I don't want to prosecute? 

Sometimes, the victim may feel that they do not want to pursue criminal charges. This may be because they are worried about inflaming the situation, or because they do not want their child's other parent sent to prison.

It is possible to bring a civil action to pursue compensation or an injunction, rather than more severe penalties of prison time. Again, this is an evolving area, but there is helpful precedent for victims: in 2019, Katie Price was ordered to pay her ex-partner, Alex Reid, £25,000 for showing third parties intimate photographs she had obtained of him.

Where threats are being made, it is possible to seek an injunction against an ex-partner who is making those threats. An injunction can be granted against website hosts as well in some circumstances, which can make it a more practical and immediate remedy for victims

What if I have already agreed to their demands? 

If you have agreed to a financial settlement in a divorce because your ex-partner was threatening you throughout the process, there are circumstances in which the settlement can be reopened. A court can revisit an order where there was undue influence exerted by one party on another at the time it was made.

For ongoing maintenance, it is possible to vary the amounts which are paid under the financial settlement if the amount payable is not reflective of the economic situation faced by you and your ex-partner.  

Where the order you have agreed to relates to contact with a child, you can ask the court to vary a child arrangements order if to do so will be in the best interests of your child.

Will my partner get less money in a financial settlement if they release intimate images of me?

In ruling on the division of assets on divorce, the court will only take the bad behaviour of a party into account in in very extreme circumstances. The release of revenge porn in itself may not be enough.

However, as with all divorces, this should be considered on a case-by-case basis. For example, if the release of the intimate images had such a detrimental effect on your reputation you are no longer able to find work in your industry, this may be reflected in the financial award.  If your ex-partner faces prison time for revenge porn, leaving you with sole care of the children, then you may need a larger settlement to allow you to bring them up as a single parent.

Is there anything else that can be done?

Absolutely. Matters do not have to get to criminal or civil court to be resolved.

If you suspect your ex-partner has intimate images of you, or they are threatening to release them, they may think that there is nothing you can do except report it to the police once they are already disseminated. As outlined above, this is not true; a letter from your solicitor can put your ex-partner on notice of the severe consequences for them of disseminating revenge porn.

Otherwise, there are a number of practical steps you can take that do not involve going to the court. These include setting up Google Alerts for anything that might come up under your name, making use of your 'Right to be Forgotten' by search engines, or 'hashing' an image with The Revenge Porn Helpline (which will block it from being uploaded to certain sites)*. Where images have been uploaded to commercial pornography sites, these companies can be told to remove them. 

Finally, it may be that your solicitor can simply provide reassurance. For example, we have had cases where an ex-partner threatens to show intimate pictures in financial proceedings, believing it will damage the victim in the eyes of the court. In these circumstances, we can reassure clients that a court is not going to be concerned with these images in the context of financial proceedings, their ex-partner's behaviour is wrong and they would only undermine their own credibility.

What should I do next?

Where you are about to start or are in the midst of family or divorce proceedings, you should tell your solicitor about your concerns around your intimate images. A discussion can feel taboo, but you should remember that it is common to share intimate images in relationships, and always unacceptable for an ex-partner to abuse that at the breakdown of your relationship. There is no need to be ashamed.

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