Impact assessment

Criminal Justice Bill: criminal law equalities statement

Updated 30 January 2024

Intimate image abuse

Introduction

1. Developments in IT and electronic communications have progressed at great speed, but with the positive and helpful advancements this has brought, it also offers new opportunities to abuse people through the misuse of personal and intimate photographs.

2. Against that background, the government asked the Law Commission to review the law around the non-consensual taking and sharing of intimate images, as part of Phase 2 of their Review of Abusive and Offensive Online Communications.

3. Following that review, which included a public consultation, the Law Commission published their findings in July 2022 ^{[footnote 1]} in which they recommended a raft of modern criminal offences to target the taking and sharing of intimate images without consent, and the threatening to share such images.

4. Their proposed reforms were designed to put in place a clearer legal framework, which would broaden the reach of the criminal law in relation to intimate images, so that all instances of intentionally taking or sharing intimate images without consent (and without a reasonable excuse) are criminalised, regardless of motivation.

5. The government created a suite of offences in the Online Safety Act 2023 to deal with the non-consensual sharing of, and threatening to share, intimate images. ^{[footnote 2]}

6. The government now intends to introduce further provisions in the Criminal Justice Bill, largely based on the Law Commission’s findings, to tackle the taking and recording of intimate images, and related behaviour. The bill will insert three new criminal offences into the Sexual Offences Act 2003 to criminalise the non-consensual taking or recording of an intimate image which shows another person, and also provisions to criminalise someone who installs, adapts, prepares or maintains equipment and does so with the intent of enabling them or another to commit one of those three new “taking or recording” offences. The bill will also make some changes to the offences created in the Online Safety Act 2023 to ensure effectiveness and consistency across the full range of intimate image offences.

Policy summary

7. The range of offences, which will extend to and apply in England and Wales, will consist of:

• A “base offence” of the intentional taking or recording of an intimate image without the consent (or a reasonable belief in consent) of the person who is shown in the image. This will be a summary only offence with a maximum sentence of imprisonment of 6 months or a fine (or both).
• A second offence, where the defendant intentionally takes or records an intimate image which shows another person, without their consent, and with the intention of causing that person alarm, distress, or humiliation.
• A third offence where the defendant intentionally takes or records an intimate image which shows another person, without consent or a reasonable belief in consent, for the purpose of obtaining sexual gratification for themselves or another person. The latter two offences will be triable either way offences with a maximum of 6 months imprisonment or a fine (or both) on summary conviction; and on indictment of imprisonment for 2 years.
• Additional provisions to criminalise someone who installs, adapts, prepares or maintains equipment and does so with the intent of enabling themselves or another to commit one of the three offences of taking or recording an intimate image without consent. Enabling the taking of the “base offence” attracts a maximum sentence of imprisonment of 6 months or a fine (or both), whilst enabling the commission of either of the two more serious offences carries a 2-year maximum prison sentence.

8. Sexual offender notification requirements may apply if convicted of committing the “taking” offence for the purpose of obtaining sexual gratification, and also on conviction of the offence of installing or adapting equipment with the intent to enable a person to commit the sexual gratification “taking” offence.

Evidence and analysis – context

9. As a result of rapidly developing technological advancements, deeply intimate or sexual images can now easily be taken with new discreet filming or recording devices, including mobile phones and easily hidden or concealed by digital image recording devices.

10. The Law Commission reports that the scale of sharing digital images in general is huge, with research suggesting that in 2021, 240,000 photos were shared on Facebook and two million on Snapchat every minute.

11. The problem of abuse appears to be growing with the Revenge Porn Helpline reporting an increase of reported cases of image-based abuse of 87% in 2020 from 2019.

12. The non-consensual taking of intimate photographs or films can cause great distress to any victim and is a significant and upsetting invasion of personal privacy.  Whilst the law is equipped in many cases to deal with such behaviour, for example under offences that deal with voyeurism and “upskirting” (sections 67 and 67A of the Sexual Offences Act 2003), the Law Commission’s review identified a number of limitations with the application of these offences.

13. These offences do not for example capture the full range of perpetrator motivations.

14. The existing law in this sensitive area consists of a “patchwork” of criminal offences created in response to developments in IT and offending methods. A modern and consistent set of offences is needed to ensure the law is fully able to deal with this behaviour and that victims have both the protection they deserve and confidence in the law when coming forward to report such abuse.

15. The government considered the findings of the Law Commission’s review and agreed that a range of offences is necessary to keep the criminal law up to date with developments in technology and to ensure those who take, share or threaten to share intimate imagery can now be held to account and to provide victims greater protection.

Equality duties

16. Section 149 of the Equality Act 2010 (“the 2010 Act”) places a duty on Ministers and the Department, when exercising their functions, to have ‘due regard’ to the need to:

• eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the 2010 Act
• advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and
• foster good relations between persons who share a relevant protected characteristic and persons who do not share it

17. When having due regard, these limbs must be proportionately considered taking into account the relevant “protected characteristics” under the Equality Act 2010 – namely race, sex, disability, sexual orientation, religion or belief, age, gender reassignment, pregnancy and maternity.

Eliminating unlawful discrimination, harassment etc

18. Both women and men could be the victims of the behaviour targeted by the offences, but we predict that the majority of victims will be women.

19. The Revenge Porn Helpline for example reported that, in 2021, 75% of calls received were from women victims, with the perpetrators reported by them as predominantly male.

20. The Law Commission’s initial consultation paper also noted that that women and minority groups are most often the targets of intimate image abuse and that this could result in their subordination and marginalisation becoming further entrenched in society.

21. In addition, it highlighted that for LGBTQ people the abuse of intimate images, for example the disclosure or threat to disclose, could have particularly severe consequences, especially if the victim felt unable to be “out” with their family, friends or community.

22. The offences are based on the conduct and intent of the perpetrator and not on gender (or any other protected characteristic). However, evidence indicates that intimate image abuse is most often (though not always) perpetrated by men against women. It is therefore likely that new offences will indirectly have a greater positive impact on women who are more likely than men to be victims of this behaviour.

23.Whilst men are more likely to be the perpetrators of these new offences and will therefore be indirectly impacted to a greater degree, we do not consider that the provisions will amount to unlawful indirect discrimination. This behaviour is harmful regardless of the gender of the perpetrator or victim. The offences themselves are similarly gender neutral, and we therefore believe the measures, applying equally to male and female perpetrators are an appropriate means of achieving the legitimate aim of protecting victims from criminal behaviour.

24. Within this process we have considered the impact the creation of the new offences may have on young people. We are alive to concerns about the impact of intimate image abuse on children, both as perpetrators and victims, and the risk of discriminating against them through our legislation. In particular, we recognise the risks of over-criminalising young people who naively engage in intimate image abuse as a joke, due to peer pressure, or without fully understanding the implications of sexual harm, which may mean that these offences risk having a disproportionate impact on children and young people. These concerns are most acute with acts of sharing, but also apply with acts of taking or installing. However, we have seen in the Law Commission’s report sufficient evidence of the serious harm caused to victims by this behaviour, and the prevalence of intimate image abuse among children, that we continue to believe the offences should apply regardless of age. The youth justice system is designed to mitigate the risks associated with children engaging with the criminal justice system.

Advancing equality of opportunity between different groups

25. We have considered the impact of the proposed creation of these new offences on those with relevant protected characteristics as defined in the 2010 Act, namely age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex or sexual orientation (as relevant).

26. Both perpetrators and victims could be people with any of the protected characteristics, but in the main the victims of the behaviour targeted are women. We do not believe that these measures specifically advance the equality of opportunity for particular groups, but the creation of these offences aims to protect people from this harmful behaviour and should have a positive impact on them.this behaviour, and the prevalence of intimate image abuse among children, that we continue to believe the offences should apply regardless of age. The youth justice system is designed to mitigate the risks associated with children engaging with the criminal justice system.

Fostering good relations

27. We do not consider that these proposals would have any significant impact on the achievement of this objective.

Encouraging or assisting serious self-harm

Introduction

28. Encouragement of suicide or self-harm falling short of suicide is a matter of great concern. It is already an offence, under the Suicide Act 1961, to do an act capable of encouraging or assisting another person to take, or attempt to take, their own life with the intent that they should do so. In their Modernising Communications Offences report, published in July 2021, the Law Commission considered how the criminal law might best tackle encouragement of self-harm. Recognising that any criminal law solution in this complex area must be properly constrained to avoid criminalising vulnerable people who share their experiences of self-harm or those offering them support, the Commission recommended a narrow offence, modelled largely, on the Suicide Act offence, that targets the deliberate encouragement or assistance of serious self-harm.

Policy summary

29. The Online Safety Act 2023 gave partial effect to the Law Commission recommendation by introducing a new offence of encouraging or assisting serious self-harm by means of verbal or electronic communications, publications or correspondence (“the communications offence”).

30. To give full effect to the recommendation, the Criminal Justice Bill will repeal the communications offence (in relation to England and Wales only) and replace it with a broader one that covers encouraging or assisting serious self-harm both by means of communication, and in any other way, including, for example, direct assistance such as providing bladed articles with which to self-harm (“the broader offence”). The broader offence will be consistent in this regard with the Suicide Act offence which is not limited to encouraging or assisting suicide by means of communication.

Evidence and analysis - context

31. Although self-harm does not necessarily mean that someone is experiencing suicidal thoughts or feelings, we know that it is associated with a significant risk of subsequent suicide. The prevalence of self-harm is difficult to estimate as it is often unreported. Self-harm can occur at any age, but a recent national study reported that 7.3% of girls aged 11 to 16, and 3.6% of boys aged 11 to 16, had self-harmed or attempted suicide at some point. The figures for those aged 17‑19 were 21.5% for girls and 9.7% for boys. ^{[footnote 3]}

32. One study of the prevalence of self-reported non-suicidal self-harm (NSSH) from 2000-2014 ^{[footnote 4]} found increases in prevalence in both sexes and across age groups, most notably in women and girls aged 16-24. Male participants and those aged 16-34 years were less likely to have contact with health services than were female participants and older people.

33. Whilst the internet can be a valuable source of support for those experiencing a desire to self-harm or suicidal feelings, it can also expose them to harmful content, including content purposefully generated by others to cause people to self-harm. There is increasing evidence of links between internet usage and self-harm, with one study finding that, among self-harm hospital presentations, the prevalence of suicide and self-harm related internet use was 8.4% among adults and 26% among children and adolescents. ^{[footnote 5]}

Equality Duties

Eliminating unlawful discrimination, harassment, etc

34. We do not consider that the broader offence is likely to be considered unlawful discrimination (whether direct or indirect) within the meaning of the 2010 Act.

35. We know that, in general, men commit more offences than women and are therefore more likely to be disproportionately impacted as offenders. We do not, however, consider that the impact of the broader offence will amount to unlawful indirect discrimination because it is a proportionate means of achieving the legitimate aim of protecting vulnerable people from deliberate encouragement to self-harm.

Advancing equality of opportunity between different groups

36. As indicated above, evidence suggests that younger people, particularly young women, are more likely to self-harm. Evidence of the prevalence of self-harm amongst those with other protected characteristics is less clear but we believe the broader offence of encouraging or assisting serious self-harm would increase protection for all those with protected characteristics who may be susceptible to self-harm because it would apply to all cases where the offence is committed, regardless of the gender, age or other characteristics of the person being encouraged or assisted.

Fostering good relations

37. We do not consider that the broader offence would have any significant impact on the achievement of this objective.

Footnotes

1. Intimate image abuse: a final report ↩

2. Suicide prevention strategy for England: 2023 to 2028 ↩

3. Prevalence of non-suicidal self-harm and service contact in England, 2000-14: repeated cross-sectional surveys of the general population - PubMed (nih.gov) ↩

4. Self-harm: assessment, management and preventing recurrence ↩

5. Suicide and self-harm related internet use: a cross-sectional study and clinician focus groups ↩