Policy paper

Threats to disclose private sexual photographs and films

Updated 3 January 2024

What are we doing?

The Act extends the existing offence of disclosing private sexual photographs and films with intent to cause distress at section 33 of the Criminal Justice and Courts Act 2015 to include ‘threats’ to disclose such material.

The terms of the existing offence capture the disclosure of private sexual photographs and films without the consent of an individual who appears in them and with intent to cause that individual distress. The disclosure offence applies in England and Wales and is subject to a maximum penalty of two years’ imprisonment, or a fine, or both.

How are we going to do it?

The Domestic Abuse Act 2021 amends section 33 of the Criminal Justice and Courts Act 2015 to the effect that alongside the disclosure of private sexual photographs and films the threat to disclose such material will become an offence.

The act clarifies that threats to disclose private sexual photographs and films, as defined at section 33 of the Criminal Justice and Courts Act 2015, will constitute a criminal offence within England and Wales. Such behaviour will be subject to the existing maximum penalty of two years’ imprisonment, or a fine, or both. The prosecution will not have to prove the image exists.

In bringing forward these provisions, taking into account the ongoing Law Commission review in this area, we have tried to stay as close as possible to the provisions and drafting of the existing offence at section 33 of the Criminal Justice and Courts Act 2015 rather than making broader changes to the law.

Background

The offence at section 33 of the Criminal Justice and Courts Act 2015, commonly referred to as the “revenge porn” offence, was created to capture those who deliberately disclose private sexual images with intent to cause distress.

Threatening to disclose intimate sexual images can, in many circumstances, already be covered by a range of existing offences such as stalking, harassment, malicious communications or blackmail or be captured by the controlling or coercive behaviour offence under section 76 of the Serious Crime Act 2015.

Aware of concerns about the criminal law in this newly developing area the Government commissioned the Law Commission as part of their Review of Abusive and Offensive Online Communications to review the law relating to the non-consensual taking, making, and sharing of intimate images. The review is considering the current range of criminal offences in this area, including the “revenge porn” offence. The Law Commission published its public consultation on 26 February 2021. The consultation period ends on 27 May 2021.

Ministry of Justice officials have worked with the College of Policing to update police guidance and highlight the existing offences that can be used to capture threats to disclose “revenge porn” images. That updated guidance has now been published.

Campaigners, including the domestic abuse charity Refuge had argued for a swift change to the existing criminal law to capture the practice of threatening to disclose images defined with the section 33 offence. Whilst there exists a range of offences that could capture the threat to share these or similar images, the Government has listened to the voices of campaigners and victims on this issue.

Against the background of these concerns, and the possibility that some occasions where damaging and distressing threats to disclose such images may not be caught by the existing criminal law, the Government decided to strengthen the law in this area.

This area of law will be kept under review, including the Law Commission’s proposals. Once the Law Commission’s final recommendations have been published the Government will consider the best way to move forward.

Frequently asked/useful questions

Q: Typically, what would have to be in an image to constitute “revenge porn[-ography]”? 

To fall within the offence, a photograph or film would have to be private and sexual. This could include an image that depicted an individual’s exposed genitals, or a picture of someone who is engaged in sexual behaviour or posing in a sexually provocative way, if what is shown is not of a kind ordinarily seen in public.  

Q: What offences exist that might capture threats to disclose these sorts of images?

Threats to disclose such material could, depending on the circumstances, be captured by existing offences that tackle harassment, stalking, malicious communications or blackmail, as well as the “coercive or controlling behaviour offence” under section 76 of the Serious Crime Act 2015 when against a background of domestic abuse.

Q: If this behaviour can already be captured by existing offences why are you extending the section 33 offence to do so?

The Government acknowledges that the criminal law may in certain circumstances not fully offer the protection against this distressing behaviour, and the calls for a swift solution. As a result, we have decided to tighten up the section 33 offence by ensuring threats to disclose images are captured.