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Revenge Porn Charges in Peterborough

By Lavinia Inbar

Porn: Everybody’s Doin’ It?

Porn. It’s hard to tell if it’s more prevalent these days or if people are simply more open and accepting about it. Certainly, online porn is huge. People not only access porn online, they also make and/or distribute it, sometimes without fully grasping that that is what they are doing. Lots of people take sexually explicit pictures of themselves and send them to their intimate partners or agree to sexually explicit photos or videos of themselves being taken. Harmless fun ─ if it’s between consenting adults and the images don’t get shared without the subject’s consent. A serious criminal offence ─ if without the subject’s consent the images are shared with others or made public.

A typical scenario might be where a guy asks his girlfriend for a sexy picture. She obliges and sends him some shots of herself in the nude. Down the road they have a fight and he tries to get back at her by posting her pictures online. That’s how revenge porn sometimes happens and if you’ve been charged with that in Peterborough, you are facing extremely serious legal repercussions.

What’s the Law on Revenge Porn?

There is no actual offence called revenge porn, but that behaviour is captured by s. 162.1 of the Criminal Code of Canada which provides as follows:

Publication, etc., of an intimate image without consent

162.1 (1) 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

(a) of an indictable offence and liable to imprisonment for a term of not more than five years; or
(b) of an offence punishable on summary conviction.

Definition of intimate image

(2) In this section, intimate image means a visual recording of a person made by any means including a photographic, film or video recording,

(a) 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;
(b) in respect of which, at the time of the recording, there were circumstances that gave rise to a reasonable expectation of privacy; and
(c) in respect of which the person depicted retains a reasonable expectation of privacy at the time the offence is committed.

Defence

(3) No person shall be convicted of an offence under this section if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.

Question of fact and law, motives

(4) For the purposes of subsection (3),

(a) it is a question of law whether the conduct serves the public good and whether there is evidence that the conduct alleged goes beyond what serves the public good, but it is a question of fact whether the conduct does or does not extend beyond what serves the public good; and
(b) the motives of an accused are irrelevant.

2014, c. 31, s. 3

What Happens to That Guy Who Posted Those Pictures?

In the years since this piece of law was added to the Criminal Code in March of 2015 (by Bill C-13, Protecting Canadians from Online Crime Act), the number of reported cases has been growing steadily.

Regardless of whether the number of revenge porn and similar incidents has increased, reporting has clearly increased. In other words, if you do this, it is very likely that your actions will be reported to the police and you will be charged.

The Peterborough courts take this offence very seriously. Victims of this offence have had their lives irrevocably damaged. Some have committed suicide.

That guy who got back at his girlfriend by posting those pictures online without her consent will probably be charged and if convicted faces jail – possibly up to five years in jail — and a life-time criminal record for a sex crime. With this kind of criminal record he will not be able to work or volunteer in the vulnerable sector, for example he will not be able to work in a hospital or volunteer to help with his kid’s hockey team. He also will be likely barred from entering or transiting through the U.S.

Incidentally, if the guy’s girlfriend is under 18, he will also be charged with child porn offences and be facing up to 14 years in jail and be required to register with and report to the provincial and federal sex offender databases.

But He Didn’t Mean Any Harm!

Doesn’t matter. Section 162.1 doesn’t just capture situations in which the sexual materials are posted for reasons of revenge, although revenge or extortion frequently make up the background story. As you can see from subsection (4)(b) “the motives of an accused are irrelevant.” Even if the guy wasn’t seeking revenge, he would still be guilty of the offence. What is relevant is the consent – or lack of consent – of the person depicted in the photo. If his girlfriend did not consent to him posting those pictures of her, then his motives for posting them don’t, legally speaking, matter.

Does That Guy Have Any Kind of a Defence?

Subsection (3) provides for an extremely limited defence of “public good.” Can this guy show that posting the nude pictures of his girlfriend without her consent served the public good in some way? Not likely.

A defence for his offence will revolve around the issue of consent. Can he raise a reasonable doubt about whether he acted without his girlfriend’s consent? As with all sexual offences, the stakes are high in his case. He needs to get legal advice. If he has been charged in the Peterborough area, he needs to consult with a criminal lawyer who knows this area of law and who also knows the Peterborough courts.

The criminal law firm of Aitken Robertson is an established and respected presence in the Peterborough courts. The lawyers of Aitken Robertson collectively have a wealth of experience in this area of law and offer a free half-hour consultation, either through this website or by calling the Peterborough office number: (705) 742-0440 or the toll-free number: 1-800-668-1657. After the Covid-19 restrictions on personal contact are lifted, the firm’s lawyers will also offer these consultations in person.

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