Revenge Porn and Therapeutic Jurisprudence

Guest blogger Dr. Debarati Halder, managing director of Centre for Cyber Victim Counselling writes about Mitigation of Revenge Porn by the Adoption of Therapeutic Jurisprudence approaches by the Courts…

Revenge porn, whether by children or by adults, has become a growing problem everywhere.  Continuous improvement in Digital communication technology (DCT) and internet communication technology (ICT) has helped the users to get connected and share everything with each other as well as with the world wide audience.  This ‘everything’ includes private information, images as well as emotional feelings and stages of one’s love-life.

One of the traits of this internet era generation is to have ‘records’ of their love life; they not only choose dating partners online, they also prefer to have sexual stimulation from each other through DCT and ICT by sharing nude selfies, through ‘live sex chats’ through platforms like Skype or yahoo messenger.  Such live sex chat may also include ‘dirty chats’, and some ‘skin showing’ through webcam by obliging the chat partner.  The trait does not end here; there are numerous instances where dating partners or married couples record their penetrative and non-penetrative sexual activities in cell phones or tablets or laptops. But such activities may not always lead to storing of happy memories.

My article, “Revenge Porn by Teens in the United States and India: A Socio-legal Analysis. International Annals of Criminology, 51(1-2), 85-111(2013)  (co-authored with K. Jaishankar), shows what could be the unwanted result of this trait.

Revenge porn “is an act whereby the perpetrator satisfies his anger and frustration for a broken relationship through publicising false, sexually provocative portrayal of his/her victim, by misusing the information that he may have known naturally and that he may have stored in his personal computer, or may have been conveyed to his electronic device by the victim herself, or may have been stored in the device with the consent of the victim herself; and which may essentially have been done to defame the victim” (pg. 90, Halder and Jaishankar, 2013).

Revenge porn is different from traditional cyber pornography and this makes the issue more challenging when it comes to managing the issue through law and justice mechanism.  When the perpetrator and the harasser are adults, laws meant for online misogyny, harassment, or other cyber crimes and hate crimes can be applied effectively. But when it comes to children, laws meant for online crimes targeting adults may not be applied especially when the main interest of the judiciary lies in the welfare of the children (whether harasser or the victim).  However, in both the cases, therapeutic jurisprudential approach may play a great deal in providing justice.

In my earlier article titled “Examining the scope of Indecent representation of Women (Prevention) Act, 1986, in the light of Cyber Victimization of Women in India”. National Law School Journal, 11, 188-218(2013), I had shown how the law’s therapeutic values can be used to provide justice to the adult female victims.  In Halder and Jaishankar, 2013, the emphasis lies on how courts can use therapeutic jurisprudence for cases of online crimes involving children.  After the submission of the article (Halder and Jaishankar, 2013) to “International Annals of Criminology” last year, there were subsequent developments in the laws in the US regarding revenge porn. By now, many jurisdictions including India have laws to deal with revenge porn.  However, the question which arises here is how far the affected parties (especially if it involves minors) can be benefited from these laws? Majority of laws dealing with online crimes (unless it is strictly meant for cyber terrorism and sedition) have retributive as well as restorative penal provisions.  In cases of revenge porn, courts must put more emphasis on the latter.

Many courts are ill equipped to deal with such cases and there are chances that laws may turn anti-therapeutic for the parties due to huge confusions among the police officers, attorneys and the judges about the nature of the crime and how to deal with it.  There are instances where victims had been refused any help from the police and they had been humiliated due to their own involvement in the crime.  Many can’t afford to take the cases to the attorneys themselves due to paucity of funds.  Depending on the government prosecution becomes the only solace for the victims, then.  In such cases, questioning the victim about her involvement in the crimes, blaming her and finally refusing any help due to prosecutional excellence of the defendants or lack of understanding of the case by the judge may push her to deep trauma.  This is especially because once a content (especially of sexual nature) is floated in the internet it may become impossible to retrieve it due to viral spreading; also, there are websites who make profit out of such contents and they demand money for taking down such contents.  Who can help the victim then?

There are two ways:

  1. the court orders the websites to remove the content and the search engines to suspend the key words;
  2. the perpetrator removes it from the primary site and helps in stopping the content to become viral.

Both fall under the therapeutic scope of the laws and court practices as this would make the perpetrator understand his mistake and why he should not repeat such acts in future.

Added to this, we urge that schools should not have traumatising policies like rusticating or shaming and defaming the victim as well as the harasser. In such cases, the victims must be encouraged to approach the court to regain their right to education in the same education or seek compensation for restricting their rights. It needs to be understood that schools play a major role in bringing the victim back to normal life by positive counselling. The harasser may also be given therapeutic counselling to break the ‘ill reputation’ of his victim that may have been created by him.

Cases of online harassments including revenge porn needs deeper understanding by criminal justice administration. If a therapeutic approach is taken by the courts, the lawyers, the police and the schools, such cases may reduce in the future.

For more in depth analysis read Dr Halder’s full article

Dr. Debarati Halder is the managing director of Centre for Cyber Victim Counselling, besides being an advocate. While through her organisation she tries to help the victims of online crime, her ongoing research is focussing more on defining new trends of online interpersonal crimes and positive ways of counselling in such cases.

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