Non Consensual Disclosure of Intimate Images

Non-Consensual Disclosure of Intimate Images
as a Crime of Gender-Based Violence

Moira Aikenhead
Le projet de loi C-13 a introduit de nouvelles dispositions dans le Code criminel

interdisant la publication d’images intimes sans le consentement de la personne
représentée. Les femmes et les filles sont massivement les victimes de ce comporte-
ment, qui repose sur leur objectification. Le présent article présente ce crime
comme une forme de violence genrée et cherche à découvrir, en fonction de la
loi et des quelques décisions judiciaires disponibles, jusqu’à quel point les juges
tiennent compte du contexte genré d’un crime ou mettent le blâme sur les femmes.
Les dispositions de la loi accordent tellement d’importance à la protection de la vie
privée des victimes que les juges, lorsqu’ils ont présidé les premières instances, ont
souvent perçu ce crime comme une violation de la vie privée plutôt que comme un
crime de violence sexuelle genrée. Dans les causes à venir, les juges ne doivent pas
perdre de vue la nature genrée de ce crime et ses effets préjudiciables, et ils
devraient adopter une approche fondée sur la dignité pour aborder la protection
de la vie privée afin de veiller à ce que les femmes ne perdent pas le contrôle de
la distribution de leurs images intimes.
Bill C-13 introduced new Criminal Code provisions prohibiting the publication of
intimate images without the consent of the person depicted. Women and girls are
overwhelmingly the victims of this behaviour, which is premised upon their objecti-
fication. This article analyzes this crime as a form of gender-based violence and
considers, based on the legislation and the limited case law, whether, and to what
extent, judges may ignore the gendered context of the crime or blame women for
their own victimization. The over-emphasis on victims’ privacy expectations in the
legislative provisions has resulted in judges conceiving of this crime in early cases
primarily as a violation of privacy rather than as a crime of sexualized gender-
based violence. Judges in future cases must not lose sight of the gendered nature
of this crime and its harms and should adopt a dignity-based approach to privacy
to ensure women do not easily lose the ability to control the dissemination of their
intimate images.
CJWL/RFD
doi: 10.3138/cjwl.30.1.117
118 Aikenhead CJWL/RFD
Introduction
In March 2015, Bill C-13, the Protecting Canadians from Online Crime Act,1
became law in Canada.2 Under the new Criminal Code provisions included in Bill
C-13, it is now an offence to share or distribute ‘‘intimate images’’ of another
person without their consent.3 Non-consensual distribution of intimate images
(NCDII) has become increasingly prevalent with the growing ubiquity of the Internet,
and there is mounting evidence that women and girls are the primary victims of NCDII.
Previous authors have located NCDII within the broader context of gender-based vio-
lence. The purpose of my article is to critically examine Canada’s NCDII provisions,
and the early case law, within this framework. In particular, I will consider the extent
to which NCDII risks being decontextualized and individualized in judicial discourse,
and how narratives of responsibilization and the ‘‘ideal victim’’ may contribute to
women being blamed for their own victimization, as has occurred with other forms
of gender-based violence. I will argue that the wording of the Criminal Code
provisions places too much emphasis on victims’ privacy expectations and that
this emphasis may contribute to the individualization of NCDII and undue judicial
scrutiny of victims’ behaviour.
In the first part of the article, I explore the social and political context in which
Bill C-13 was introduced and passed in response to growing public concern with
teen ‘‘cyber-bullying,’’ ‘‘sexting,’’ and ‘‘revenge pornography.’’ I draw on the work
of previous authors who have categorized NCDII as a crime of gender-based
violence and explore two narratives that inform gender-based violence and may
influence judicial interpretation of NCDII cases: the decontextualization and indi-
vidualization of gender-based violence through the criminal law and narratives of
responsibilization and the ‘‘ideal victim.’’ In the second part of the article, I analyze
the wording of the NCDII provisions, noting that a definition of ‘‘intimate image’’
that requires an analysis of victims’ reasonable expectations of privacy at two dis-
tinct points risks framing the harms of NCDII exclusively in privacy-related terms.
This may contribute to judges ignoring the broader context of women’s objectifica-
tion and gender inequality and placing undue scrutiny on victims’ behaviour and
expectations in relation to their intimate images. While I argue that a primary focus
on privacy is inappropriate in cases of NCDII, I propose, given the wording of the
provisions, that judges should adopt an approach to privacy that directs scrutiny to
the offender’s motivations and use of the intimate image rather than to the victim’s
behaviour.
1. Bill C-13, An Act to Amend the Criminal Code, the Canada Evidence Act, the Com-
petition Act and the Mutual Legal Assistance in Criminal Matters Act, 2nd Sess, 41st
Parl, 2013.
2. Protecting Canadians from Online Crime Act, SC 2014, c 31.
3. Criminal Code, RSC 1985, c C-46, s 162.1.
Vol. 30 2018 119
In the third part of the article, I review the six initial English-language decisions
involving offences of NCDII. I articulate how the facts of those cases fit within
the broader context of gender-based violence and examine the extent of judicial
recognition of the gendered nature of NCDII and its harms as well as judges’
reliance on, and perpetuation of, narratives of responsibilization and the ‘‘ideal
victim.’’ While there are currently too few decisions to make any firm predictions
about how NCDII will be interpreted going forward, I conclude that while judges
are treating NCDII as a serious criminal offence, the wording of the provisions
and early case law place far too much emphasis on individual victims’ privacy
expectations, ignoring the broader, systemic harms of gender-based violence.
Non-Consensual Disclosure of Intimate Images as

Gender-Based Violence
The Need for Legislative Reform
Bill C-13 was tabled and passed in the context of a national conversation in Canada
about ‘‘cyber-bullying’’ that took place in the wake of the suicide deaths of Rehteah
Parsons and Amanda Todd.4 Both of these cases resulted in significant media atten-
tion and calls for Parliament to intervene as the public began to view cyber-bullying
and teen ‘‘sexting’’ as dangerous epidemics.5 The federal government cited the
Parsons case and a working group report on cyber-bullying, prepared for the Federal
and Provincial Territorial Ministers Responsible for Justice and Public Safety, when
discussing the impetus for Bill C-13.6 At the same time, there was growing public
4. Mylynn Felt, ‘‘The Incessant Image: How Dominant News Coverage Shaped Canadian
Cyberbullying Law’’ (2015) 66 University of New Brunswick Law Journal 137 at 137;
Jane Bailey, ‘‘Time to Unpack the Juggernaut: Reflections on the Canadian Federal
Parliamentary Debates on Cyberbullying’’ (2014) 37:2 Dalhousie Law Journal 661 at
663–64 [Bailey, ‘‘Parliamentary Debates’’]. Both Parsons and Todd committed suicide
in the wake of their ‘‘intimate images’’ (in Parsons’ case, images of a sexual assault)
being shared online. The distribution of these images and resulting bullying by their
peers were widely seen as causing their deaths.
5. Bailey, ‘‘Parliamentary Debates’’, supra note 4. See also David Zemmels & David
Khey, ‘‘Sharing of Digital Visual Media: Privacy Concerns and Trust among Young
People’’ (2015) 40:2 American Journal of Criminal Justice 285 at 287; Andrea Slane,
‘‘Sexting and the Law in Canada’’ (2013) 22:3 Canadian Journal of Human Sexuality
117 at 117 [Slane, ‘‘Sexting’’]; Jane Bailey & Mouna Hanna, ‘‘The Gendered Dimen-
sions of Sexting: Assessing the Applicability of Canada’s Child Pornography Provision’’
(2011) 23:2 Canadian Journal of Women and the Law 405 at 407.
6. Bailey, ‘‘Parliamentary Debates’’, supra note 4 at 674; House of Commons Debates,
41st Parl, 2nd Sess, Vol 147, No 25 (27 November 2013).
recognition of the issue of ‘‘revenge pornography.’’7 Revenge pornography generally

refers to adults posting nude or sexualized images of their ex-partners online in order
to harm them or exact ‘‘revenge’’ for some perceived wrong. Revenge pornography
websites began proliferating around 2010,8 and a number of authors began to
consider potential criminal law responses to this behaviour.9
Many of the conversations taking place in academia and the media around this
time noted the distinct harms inherent to online victimization, as compared to
victimization in the ‘‘real world.’’ Posting an image online creates an enduring
digital record, which can be easily distributed to a massive, worldwide audience,
with virtually no way of ensuring the image has been permanently deleted.10 The
result is ongoing victimization for individuals who have had their intimate images
posted online, who must live with the fact that those images may have been viewed
and downloaded by a significant number of people and could resurface online at
any time. Commentators also noted how the harms of NCDII are compounded by
the rapidly dissolving divide between ‘‘online’’ and ‘‘offline’’ spaces, particularly
for young people.11 Harms emerging in the ‘‘virtual’’ world have real and devastating
impacts on how individuals experience their daily lives.12
7. Nicola Henry & Anastasia Powell, ‘‘Sexual Violence in the Digital Age: The Scope
and Limits of Criminal Law’’ (2016) 25:4 Social & Legal Studies 397 [Henry &
Powell, ‘‘Sexual Violence’’]. Henry & Powell consider ‘‘revenge pornography’’ to be
an example of the ‘‘titillating’’ and ‘‘euphemistic’’ language that is sometimes used
to describe technology-facilitated sexual violence, which does not capture the myriad
reasons why these images may be distributed, focusing on the content of the image as
pornographic rather than the intention of the image’s distributor. Ibid at 398–400.
8. Lorelei Laird, ‘‘Striking Back at Revenge Pornography: Victims Are Taking on Websites
for Posting Photos They Didn’t Consent To’’ (2013) 99:11 American Bar Association
Journal 45 at 46–47.
9. See Laird, supra note 8; Henry & Powell, ‘‘Sexual Violence’’, supra note 7; Danielle
Keats Citron & Mary Anne Franks, ‘‘Criminalizing Revenge Porn’’ (2014) 49:2 Wake
Forest Law Review 345; Peter W Cooper, ‘‘The Right to Be Virtually Clothed’’ (2016)
91:2 Washington Law Review 817.
10. Bailey & Hanna, supra note 5 at 411–12; Citron & Franks, supra note 9 at 350;
Zemmels & Khey, supra note 5 at 289; Henry & Powell, ‘‘Sexual Violence’’, supra
note 7 at 404; Cooper, supra note 9 at 817–18; Carissima Mathen, ‘‘Crowdsourcing
Sexual Objectification’’ (2014) 3:3 Laws 529 at 530–31; Nicola Henry & Anastasia
Powell, ‘‘Embodied Harms: Gender, Shame, and Technology-Facilitated Sexual Vio-
lence’’ (2015) 21:6 Violence Against Women 758 at 767 [Henry & Powell, ‘‘Embodied
Harms’’].
11. Many young people, and an increasing number of adults, consider mobile phones as
extensions of the body and communications through those devices to be as direct
as face-to-face, in-person conversations. See Zemmels & Khey, supra note 5 at 286,
297–99; Henry & Powell, ‘‘Embodied Harms’’, supra note 10 at 760, 765.
12. Previously, in cases of intimate partner violence and harassment, a perpetrator would
likely need physical access to a victim to cause them harm, whereas now perpetrators
can repeatedly intimidate and harass their victims through phone, email, or social
Vol. 30 2018 121
In the context of this increasing awareness of NCDII and its harms, numerous
authors have considered what existing legal remedies victims might pursue. Civil
litigation could be utilized for actions infringing copyright law, such as individuals
or companies hosting revenge pornography websites,13 and a variety of tort claims
could potentially be available to NCDII victims.14 However, the civil system has
some inherent shortcomings for dealing with this type of behaviour, as defendants
may be judgment proof,15 victims may not have the financial capacity to bring a
lawsuit,16 and victims may be unwilling to pursue a claim under their real names,
not wishing to bring further attention to the publication of their intimate images.17
In Canada, legal scholars have analyzed whether and to what extent Criminal
Code provisions predating Bill C-13 might cover situations of NCDII.18 The
Code’s child pornography provisions would apply to most instances of NCDII
involving images of underage persons, and since Bill C-13 was tabled, there have
been a number of cases involving young people charged with child pornography
offences for behaviour resembling NCDII.19 Disagreement exists, however, about
whether child pornography charges should be pursued against youth possessing or
distributing intimate images of other youth since non-harmful, consensual, sexting
media communication twenty-four hours a day. See Danielle Keats Citron, Hate Crimes
in Cyberspace (Cambridge, MA: Harvard University Press, 2014) at 20 [Citron, Hate
Crimes]; Henry & Powell, ‘‘Embodied Harms’’, supra note 10 at 765.
13. Laird, supra note 8 at 47.
14. In Jane Doe 464533 v ND, 2016 ONSC 541, the plaintiff was awarded default judgment
against her ex-boyfriend, who had posted an intimate image of her on a pornography
website without her knowledge or consent. The judge found the defendant liable for
breach of confidence and intentional infliction of mental distress and ordered that he
pay $100,000 total damages as well as granting injunctive relief. However, the order
for default judgment was subsequently set aside, and a new hearing on the merits of
the case has not yet taken place. See also Jane Doe 464533 v ND, 2016 ONSC 4920;
Jane Doe 464533 v ND, 2017 ONSC 127.
15. Laird, supra note 8 at 47; Citron & Franks, supra note 9 at 358.
16. Laird, supra note 8 at 50; Citron & Franks, supra note 9 at 358; Henry & Powell,
‘‘Sexual Violence’’, supra note 7 at 404.
17. Citron & Franks, supra note 9 at 348–49; Cooper, supra note 9 at 827; Citron, Hate
Crimes, supra note 12 at 25. Recent cases indicate that judges may grant publication
bans to remedy these privacy concerns. See all cases of Jane Doe, supra note 14; AB
v Bragg Communications Inc, 2012 SCC 46 at para 31.
18. See Bailey & Hanna, supra note 5; Slane, ‘‘Sexting,’’ supra note 5; Mathen, supra
note 10.
19. See e.g. R v KF, 2015 BCPC 417; R v CNT, 2015 NSPC 43, rev’d; R v BMS, 2016
NSCA 35; R v Y, 2015 NSPC 14; R v Y, 2015 NSPC 66; R v MB, 2016 BCCA 476;
R v X, [2016] NJ No 398 (NLPC) (QL).
between young people may also be captured by these provisions.20 There was less
clarity regarding whether pre-existing Code offences would cover instances of
NCDII involving adults. Some authors noted criminal harassment and voyeurism
charges could be applicable, depending on the specific facts of a given case.21
Nevertheless, a legislative gap existed for those instances of NCDII that did not
involve the requisite elements of other offences.22
Feminist Approaches to NCDII
While debates in the media and Parliament were occurring about what needed to
be done to combat cyber-bullying and revenge pornography, feminist scholars
from law and other disciplines considered the ways NCDII forms part of the
broader systemic issue of gender-based violence. Increasing evidence indicates
the majority of victims of online violence and harassment, including behaviours
covered by the NCDII provisions, are women and girls.23 In 2016, there were 295
cases of NCDII reported to police across Canada, with female victims in 92 percent
of those cases.24 Of those individuals ultimately charged with NCDII, 72 percent
20. Bailey & Hanna, supra note 5 at 408; Slane, ‘‘Sexting’’, supra note 5 at 17. In R v MB,
the BC Court of Appeal found that it was possible the accused could establish a section
7 Charter infringement by leading evidence on the nature of the harms caused by youth
distributing intimate images as compared to the harm they suffer by encountering
the criminal justice system as a result of ‘‘sexting.’’ R v MB, supra note 19 at para 73.
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11.
21. See Slane, ‘‘Sexting’’, supra note 5; Mathen, supra note 10.
22. Mathen, supra note 10 at 533. The existence of this gap is further demonstrated by the
2015 decision in the provincial court of Saskatchewan, R v Maurer, where the accused
copied intimate images from a woman’s computer and posted them online without her
consent, prior to the enactment of Bill C-13. The Crown proceeded by way of charges
of ‘‘fraudulent use of a computer to commit an offence’’ and mischief. The trial and
appellate judges found that these provisions were not applicable and acquitted the
accused, noting in both decisions that if the crime had taken place at the time of
judgment, the new non-consensual distribution of intimate images (NCDII) provisions
would apply. See R v Maurer, 2014 SKPC 118; R v Maurer, 2015 SKQB 175.
23. Henry & Powell, ‘‘Sexual Violence’’, supra note 7 at 399; House of Commons, Stand-
ing Committee on the Status of Women, Taking Action to End Violence against Young
Women and Girls in Canada (March 2017) at 32 (Chair: Marilyn Gladu).
24. Statistics Canada, Table 252-0095, Police-Reported Cybercrime by Cyber-Related
Violation, CANSIM (database) <http://www5.statcan.gc.ca/cansim/a26?lang=eng&
retrLang=eng&id=2520095&&pattern=&stByVal=1&p1=1&p2=31&tabMode=
dataTable&csid=>. These statistics are not broken down by sex of the offender or
victim in the database, and this information was obtained from Statistics Canada by
the author. There were 271 female victims and 33 male victims, indicating that some
cases involved male and female victims. Ibid.
Vol. 30 2018 123
were male.25 Girls are more likely than boys to be targeted by sexualized online
bullying in the form of threats of sexual violence and in relation to being, or
allegedly being, sexually active or promiscuous.26 The Cyber Civil Rights Initiative
estimates 90 percent of revenge pornography victims are female,27 while a more
recent survey of 3,000 Internet users indicates that more than twice as many women
have been threatened with, or been the victims of, NCDII as compared to men.28
Structural gender inequalities form the basis for sexualized attacks on women
and girls both online and offline.29 Women’s bodies are objectified and seen as
commodities to be used and controlled by men. According to Martha Nussbaum,
online objectification is done instrumentally to satisfy the needs of the (typically
male) objectifier and is often contingent on the reduction and debasement of the
(typically female) ‘‘object’’ to bodily parts and physical appearance.30 Objectifica-
tion is a form of shaming as it confers a spoiled or stigmatized identity on the
subject.31 Nicola Henry and Anastasia Powell note the proliferation of pro-abuse
and pro-rape groups online that facilitate the construction of particular masculine
identities based on collective participation in the objectification of women, sexism,
misogyny, and permissive attitudes towards non-consensual sex.32 NCDII arises
out of the social and structural context of gender hierarchization, which patterns
power relations between men and women and defines femininity and masculinity.33
The federal Standing Committee on the Status of Women recently noted that cyber-
violence against women and girls, like other forms of gender-based violence, is
25. Statistics on file with the author. Statistics Canada, supra note 24.
26. Jane Bailey, ‘‘‘Sexualized Online Bullying’ through an Equality Lens: Missed Oppor-
tunity in AB v Bragg?’’ (2014) 58 McGill Law Journal 709 at 728 [Bailey, ‘‘Missed
Opportunity’’].
27. Cooper, supra note 9 at 820, citing Natalie Webb, End Revenge Porn Infographic,
Cyber Civil Rights Initiative (3 January 2014); Citron & Franks, supra note 9 at 353.
28. Amanda Lenhart, Michelle Ybarra & Myeshia Price-Feeney, ‘‘Nonconsensual Image
Sharing: One in 25 Americans Has Been a Victim of ‘Revenge Porn’’’ (2016) Data
& Society Research Institute <https://datasociety.net/pubs/oh/Nonconsensual_Image_
Sharing_2016.pdf >. This survey also indicates indicated lesbian, gay, and bisexual
Internet users were over five times as likely to have their images disclosed or face
threats of disclosure than heterosexual users. This group was not broken down by sex,
but it is likely a large portion of the men facing threats or disclosure of intimate images
are homosexual or bisexual, rather than heterosexual, men. Ibid.
29. Bailey, ‘‘Missed Opportunity’’, supra note 26 at 723; Danielle Keats Citron, ‘‘Law’s
Expressive Value in Combatting Cyber Gender Harassment’’ (2009) 108:3 Michigan
Law Review 373 at 375 [Citron, ‘‘Law’s Expressive Value’’]; Henry & Powell, ‘‘Em-
bodied Harms’’, supra note 10 at 761.
30. Martha C Nussbaum, ‘‘Objectification and Internet Misogyny’’ in Saul Levmore &
Martha C Nussbaum, eds, The Offensive Internet: Speech, Privacy, and Reputation
(Cambridge, MA: Harvard University Press, 2010) 76.
31. Nussbaum, supra note 30 at 73.
32. Henry & Powell, ‘‘Embodied Harms’’, supra note 10 at 770.
33. Henry & Powell, ‘‘Sexual Violence’’, supra note 7 at 399.
used to ‘‘control women, maintain men’s dominance over women, and reinforce
patriarchal norms, roles, and structures.’’34
These narratives of objectification and male dominance over women also result
in unique and particular harms to women and girls as a result of NCDII.35 Studies
demonstrate that girls understand the severity and long-term damage to reputation
that can result from being labelled promiscuous,36 concerns not generally shared by
young men.37 Women can suffer significant economic and professional consequences
as a result of NCDII, such as being fired from their jobs when their employers
discover nude or sexualized images of them online,38 essentially being punished
for their own victimization. Sexualized violence such as NCDII undermines gender
equality because living under the threat of this violence shapes what it means to
live as a woman, placing harmful constraints on the lives of women and girls.39
Gender-based violence reinforces fear and promotes social subordination and
exclusion, making gender inequality both a cause and a consequence of gender-based
violence.40 Living under this shadow of fear prevents women from participating
fully in society.41
34. House of Commons, supra note 23 at 32.

35. Henry & Powell note that the harms associated with sexualized online victimization
exist on a continuum of violence against women, which can be physical, emotional,
symbolic, and structural, particularly when viewed as a collective phenomenon. Henry
& Powell, ‘‘Embodied Harms’’, supra note 10 at 759–60. See also Henry & Powell,
‘‘Sexual Violence’’, supra note 7 at 399.
36. Bailey, ‘‘Missed Opportunity’’, supra note 26 at 728.
37. Young men generally do not need to fear being labelled ‘‘sluts’’ if they engage in
sexual activity, but, instead, such activity is often considered a point of pride. Citron
& Franks, supra note 9 at 353; see also Laird, supra note 8 at 47. Jane Bailey notes
that the publication of intimate images is understood to be much more shameful and
humiliating for girls and lesbian, gay, bisexual, transgender, and queer youth than for
heterosexual boys, indicating the harms of NCDII are gender based. Bailey, ‘‘Missed
Opportunity’’, supra note 26 at 732. Danielle Citron summarizes the gendered harms
of online harassment in the following way: ‘‘Cyber gender harassment invokes women’s
sexuality and gender in ways that interfere with their agency, livelihood, identity,
dignity, and well-being. The subsequent injuries are unique to women because men
typically do not experience sexual threats and demeaning comments suggesting their
inferiority due to their gender.’’ Citron, ‘‘Law’s Expressive Value’’, supra note 29 at
384.
38. See Laird, supra note 8 at 46; Danielle Citron, ‘‘Protecting Sexual Privacy in the Infor-
mation Age’’ in Julia Horwitz, Jeramie Scott & Marc Rotenberg, eds, Privacy in the
Modern Age: The Search for Solutions (New York: New Press, 2015) 46.
39. Janine Benedet, ‘‘Marital Rape, Polygamy, and Prostitution: Trading Sex Equality for
Agency and Choice?’’ (2013) 18:2 Review of Constitutional Studies 161 at 165.
40. Anastasia Powell & Nicola Henry, Sexual Violence in a Digital Age (London: Palgrave
MacMillan, 2017) at 67.
41. Ibid.
Vol. 30 2018 125
In certain cases, NCDII may also form part of the systemic issue of intimate
partner violence against women in heterosexual relationships. Men may post or
threaten to post intimate images of their partners to exert more direct control over
their behaviour. Revenge pornography is premised on the punishment of one’s
former intimate partner for some perceived wrongdoing, such as infidelity or
ending the relationship. Isabel Grant discusses how criminal harassment, assault,
and threatening are all variants of intimate partner violence and make up part of a
‘‘constellation of behaviours’’ in which the male partner asserts control over his
current or former intimate partner.42 When men use NCDII as a threat against their
current or former partners, or post their intimate images as revenge, it becomes
clear this is yet another form of intimate partner violence representing the long-
standing inequality of women in intimate relationships.43
In the following sections, I will outline two concerns highlighted by previous
feminist theorists writing about other gender-based crimes that have the potential
to resurface in the context of NCDII: (1) individualizing and decontextualizing
crimes of gender-based violence and (2) blaming victims for their own victimiza-
tion through narratives of responsibilization and the ‘‘ideal victim.’’
Individualization and Decontextualization of NCDII as a

Gender-Based Crime
Like the vast majority of Criminal Code offences, the wording of the NCDII provi-
sions is gender neutral. The application of criminal law to gender-based violence
carries the inherent risk that the gendered nature of the behaviour will be over-
looked or actively ignored by judges. Lise Gotell describes how the criminal law
decontextualizes and individualizes sexual violence, as the context of gendered
power dynamics that frames and gives meaning to sexual violence is hidden.44
Janine Benedet explains that in cases of gender-based violence, such as sexual
assault, equality has become equated with individual autonomy and autonomy
equated with choice.45 In her review of cases regarding advanced consent to sexual
activity while unconscious, Benedet notes that judges employ a choice-based narra-
tive about the right to change one’s mind, rather than emphasizing that sex with
42. Isabel Grant, ‘‘Intimate Partner Criminal Harassment through a Lens of Responsibiliza-
tion’’ (2015) 52:5 Osgoode Hall Law Journal 552 at 558.
43. Ibid.
44. Lise Gotell, ‘‘The Discursive Disappearance of Sexualized Violence: Feminist Law
Reform, Judicial Resistance, and Neo-Liberal Sexual Citizenship’’ in Dorothy E Chunn,
Susan B Boyd & Hester Lessard, eds, Reaction and Resistance: Feminism, Law and
Social Change (Vancouver: UBC Press, 2007) 127 at 132–35 [Gotell, ‘‘Discursive
Disappearance’’].
45. Benedet, supra note 39 at 164.
an unconscious woman is inherently violent behaviour.46 Whether or not a sexual

assault has taken place is viewed as being based entirely on individuals’ choices,
with no recognition of structural sex inequality.47
Like other forms of gender-based violence, intimate partner violence, despite
historically being overwhelmingly an issue of male violence against women, has
often been stripped of this context and framed as an issue of individual choices in
‘‘dysfunctional’’ relationships. Intimate partner violence was historically viewed as a
private matter and, later, as something women and their families should be respon-
sible for avoiding.48 Viewing gender-based violence as an individualized issue,
stripped of the context of structural inequality underlying this behaviour, allows
the state to pass responsibility for avoiding violence on to victims, which opens
the door to society and the judiciary blaming women for their own victimization.49
Responsibilization and the ‘‘Ideal Victim’’ of Gender-Based Violence

Related to the individualization and decontextualization of gender-based violence
in the criminal law is the concept of the ‘‘ideal’’ victim.50 The acceptance and
perpetuation of this myth by judges was the subject of a great deal of feminist
lobbying with respect to the way sexual assault complainants are treated in the
criminal justice system.51 In general, ‘‘good’’ victims are seen as those who react
to sexual assault in socially acceptable ways (such as forceful retaliation and imme-
diate reporting)52 and those who have experienced an ‘‘authentic’’ sexual assault by
a stranger.53 Historically, only ‘‘chaste’’ women were perceived as capable of being
46. Ibid at 172.

47. Ibid at 174. Benedet argues that strictly adhering to values of individual choice and
autonomy in a society that is structurally unequal merely replicates that inequality—
consent cannot be a defence to discrimination. Ibid at 186–87.
48. Grant, supra note 42 at 565.
49. Ibid at 564, citing Melanie Randall, ‘‘Sexual Assault Law, Credibility, and ‘Ideal
Victims’: Consent, Resistance, and Victim Blaming’’ (2010) 22:2 Canadian Journal of
Women and the Law 397 at 409; Gotell, ‘‘Discursive Disappearance’’, supra note 44
at 131.
50. See Lise Gotell ‘‘The Ideal Victim, The Hysterical Complainant, and the Disclosure of
Confidential Records: The Implications of the Charter for Sexual Assault Law’’ (2002)
40:3–4 Osgoode Hall Law Journal 251 [Gotell, ‘‘Ideal Victim’’].
51. See Randall, supra note 49.
52. Ibid at 408. See also R v Osolin, [1993] 4 SCR 595 at 624–25; R v Shearing, [2002]
3 SCR 33 at 100–01.
53. See Lise Gotell, ‘‘When Privacy Is Not Enough: Sexual Assault Complainants, Sexual
History Evidence and the Disclosure of Personal Records’’ (2006) 43:3 Alberta Law
Review 743 at 747 [Gotell, ‘‘When Privacy Is Not Enough’’].
Vol. 30 2018 127
raped,54 leading to the persistent belief that a woman’s past sexual history can
provide insight into whether she is more likely to have consented to the sexual
activity in question.55 The 1990s saw many feminist-inspired reforms to the Criminal
Code aimed at combatting these myths, such as the introduction of the ‘‘rape shield’’
provisions.56 However, these reforms did not remove judicial scrutiny of victims’
behaviour or prevent women from being blamed for being sexually assaulted.
Rather, as Gotell argues, the construction of the ‘‘ideal victim’’ of sexual assault
has shifted from a chaste woman to a woman who is consistent, rational, and self-
disciplined.57 Currently, ‘‘good’’ victims are those who behave in ways that
minimize their risk of sexual assault.58 Grant characterizes responsibilization as
‘‘only a slightly more subtle form of victim blaming,’’ where women are held
responsible for not taking steps to avoid being victimized by men.59
Previous authors have noted how victim blaming or responsibilization narratives
could be relied on for crimes such as NCDII. Blame may be placed on victims for
sharing or consenting to the production of intimate images rather than on perpetrators
for breaching victims’ trust by posting or sharing those images.60 Danielle Citron
describes cases in the United States where women reported NCDII-type behaviour
to police and were advised that abstaining from taking nude photographs in the
first place would be the best solution to the problem.61 Such responses ignore the
gendered reality of the issue, as it is generally men who instigate the initial act
of recording and women who suffer the consequences.62 Further, even where the
images were willingly created by the victims, it is not their trust in their intimate
partners that should be scrutinized and punished but, rather, their partners’ decisions
to abuse this trust to exact violence upon them.63 Like other gender-based crimes,
judicial analysis in cases of NCDII risks stripping this offence of its broader social
context and relevance to women’s equality interests, favouring narratives of indi-
vidual responsibilization and ideal victimhood. The wording of the new Criminal
Code provisions will play a role in how judges conceive of NCDII and the victims
of this crime.
54. See Slane, ‘‘Sexting’’, supra note 5 at 120; Gotell, ‘‘When Privacy Is Not Enough’’,
supra note 53.
55. See Gotell, ‘‘When Privacy Is Not Enough’’, supra note 53.
56. See Randall, supra note 49 at 402. The rape shield provisions disallow the use of
past sexual history to support inferences that the complainant is more likely to have
consented or is less worthy of belief.
57. Gotell, ‘‘Discursive Disappearance’’, supra note 44 at 142, 149.
58. Ibid at 150.
59. Grant, supra note 42 at 564.
60. See e.g. Citron, Hate Crimes, supra note 12 at 77; Laird, supra note 8 at 48.
61. Citron, Hate Crimes, supra note 12 at 77.
62. Cooper, supra note 9 at 819; Citron, Hate Crimes, supra note 12 at 17.
63. Citron & Franks, supra note 9 at 348.
A Feminist Analysis of the NCDII Provisions

The criminalization of NCDII through Bill C-13 indicates a willingness on behalf
of Parliament and the public to take this behaviour seriously. However, the applica-
tion of the criminal law necessitates decontextualization and individuation of the
issue.64 Subsection 162.1(1) of the Criminal Code now reads:
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.65
This provision must be read alongside subsection 162.1(2), which defines an
‘‘intimate image’’ as
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.66
The provisions indicate that the harms stemming from NCDII result from the non-
consensual nature of the disclosure and the breach of victims’ privacy interests.
Carissima Mathen describes the NCDII provisions as criminalizing a form of
sexual wrongdoing against the person, ‘‘occup[ying] a notional space between
criminal harassment and sexual assault.’’67 Indeed, the provisions contain elements
similar to the Criminal Code’s provisions on sexual assault, voyeurism, and criminal
harassment, as will be discussed further below.
Judicial interpretation of the substantive offence will likely be fairly straight-
forward, holding that to establish mens rea the Crown must prove (1) that it was
the offender who published the intimate images; (2) that he did so knowingly; and
(3) that he did so knowing the victim did not consent or was reckless as to whether
or not she had consented. Where the identity of the person who published the
64. Gotell, ‘‘Discursive Disappearance’’, supra note 44 at 132–33.

65. Criminal Code, supra note 3, s 162.1(1).
66. Ibid, s 162.1(2).
67. Mathen, supra note 10 at 540.
Vol. 30 2018 129
images is known, the key issue will be whether that person knew or was reckless as
to whether the victim consented to the distribution of the images. An accused may
be able to argue an ‘‘honest but mistaken belief ’’ that the complainant consented
to distribution, as is sometimes asserted in cases of sexual assault.68 Mathen con-
tends that an honest but mistaken belief that a person wished to have their intimate
images disseminated online is implausible and would be unlikely to succeed.69
While such an argument may not succeed where an accused obtained the intimate
images in confidence in the context of an intimate relationship, or through fraud or
coercion, it is less clear what the result of such an argument might be in a case
where a woman has sent intimate images to some limited number of recipients or
consented to certain limited disclosure of those images. If a person were then to
disseminate those images more widely, or post them publicly, could the woman’s
initial consent to limited disclosure be seen as consent to infinite dissemination?
Citron observes how a woman’s consensual sharing of nude photos with a person
‘‘is often regarded as wide-ranging permission to share them with the public.’’70
There is a significant risk that any initial consent to limited disclosure of the image,
based on the wording of section 162.1, would be treated by judges as bolstering an
‘‘honest but mistaken belief in consent’’ argument.
What is most problematic about the wording of the NCDII provisions, given
the concerns outlined in the first part of this article, is the definition of ‘‘intimate
image’’ in subsection 162.1(2). This definition renders the NCDII provisions in-
applicable if the images were not created in circumstances giving rise to a reasonable
expectation of privacy or if the victim does not retain an expectation of privacy in
relation to those images when they are distributed. Given that intimate images will
depict a person who is naked, or involved in sexual activity, and the substantive
offence requires those images be non-consensually distributed, it is troubling to
think that a person’s privacy interest in their intimate images can somehow be
lost. This wording has significant problems from a gender equality standpoint,
given the objectification-related harms inherent in this activity for women, who
are most likely to be its victims. The harms of NCDII extend well beyond a loss
of privacy. Through NCDII, women may suffer a significant sexualized violation
and may suffer serious psychological, social, and economic consequences as a
result. Further, focusing on privacy-related harms in gendered crimes risks em-
phasizing the importance of maintaining female ‘‘modesty’’ and protecting women
from embarrassment and humiliation, obscuring the harms to women’s equality
interests inherent in such crimes.71
68. In cases of sexual assault, the accused’s honest belief must not arise from recklessness
or wilful blindness, and he must have taken reasonable steps to ascertain whether the
complainant was consenting. See Criminal Code, supra note 3, s 273.2(b).
69. Mathen, supra note 10 at 542.
70. Citron, Hate Crimes, supra note 12 at 147.
71. See Gotell, ‘‘When Privacy Is Not Enough’’, supra note 53 at 768, cited in Jane Bailey,
‘‘Towards an Equality-Enhancing Conception of Privacy’’ (2008) 31:2 Dalhousie Law
Journal 267 at 286 [Bailey, ‘‘Equality-Enhancing Privacy’’].
Within this privacy-based definition of ‘‘intimate image,’’ whether and in what

circumstances a person will lose their reasonable expectation of privacy with
regard to their intimate images will depend in part on whether judges adopt a
liberty-based (common in the United States) or dignity-based (common in Europe)
approach to privacy.72 A liberty-based model is premised on freedom from intru-
sion by the state73 and assumes that privacy interests in certain information, includ-
ing one’s nude image, can be rather easily lost.74 A dignity-based model conceives of
privacy interests as being ongoing and grounded in the physical and moral integrity
of the person.75 The difference between these two approaches in relation to nude
images was highlighted by James Q. Whitman. In Europe, actresses and models
have been successful in suppressing republication of nude images they willingly
posed for in the past and in suing Internet service providers for hosting their
intimate images online.76 The US conception of privacy, on the other hand, would
likely not permit such lawsuits to be successful since the initial sale of those
images, or their distribution online, could terminate the women’s privacy expecta-
tions in relation to those images.77 Further, judges in the United States would likely
see issuing injunctions once images have been disseminated over the Internet as
futile, whereas European courts are willing to forbid the circulation of the photo-
graphs in order to express the importance of peoples’ right to control their own
images and penalize those responsible.78 Under a dignity-based approach to privacy,
even where a person appears publicly naked, they will not be seen as having totally
surrendered all privacy rights in relation to an image or recording of them in that
public setting.79 Under a liberty-based approach, appearing publicly nude would be
considered akin to surrendering one’s right to privacy.80 According to Andrea Slane,
a dignity-based approach to privacy directs focus towards the degree to which a
person was objectified or turned into an instrument for use by others, focusing the
attention outwards on those who would wish to use or exploit another person’s
intimate image rather than on the expectations the subject of the image had at the
time it was created or disseminated.81
72. Andrea Slane, ‘‘From Scanning to Sexting: The Scope of Protection of Dignity-Based
Privacy in Canadian Child Pornography Law’’ (2010) 48:3–4 Osgoode Hall Law Journal
543 at 544 [Slane, ‘‘Dignity-Based Privacy’’]; James Q Whitman, ‘‘The Two Western
Cultures of Privacy: Dignity versus Liberty’’ (2004) 113:6 Yale Law Journal 1151.
73. Whitman, supra note 72 at 1161.
74. Slane, ‘‘Dignity-Based Privacy’’, supra note 72 at 545.
75. Ibid.
76. Whitman, supra note 72 at 1198–99.
77. Ibid.
78. Ibid at 1199–200.
79. Ibid.
80. Ibid at 1202.
81. Slane, ‘‘Dignity-Based Privacy’’, supra note 72 at 560.
Vol. 30 2018 131
While neither a dignity-based nor liberty-based approach to privacy captures

the harms inherent to women as a group that result from NCDII and all forms of
gender-based violence,82 judicial adoption of a dignity-based approach to privacy
in Canada would be preferable. Women must not lose the right to determine how
their intimate images will be used, and who may view them, simply because those
images have been disseminated to some extent. A dignity-based approach has the
potential to allow for greater judicial scrutiny of the motivations underlying the
offender’s dissemination of the image and of the victims’ expectations of how their
image would be used, and it does not take responsibilization narratives to the
extreme by requiring that women ensure they never consent to any distribution of
intimate images, or be recorded in a public or semi-public place, lest they lose all
control over their images.
The Supreme Court of Canada (SCC) has adopted an approach aligned with a
dignity-based conception of privacy in the context of child pornography offences,
acknowledging how victims are subject to ongoing victimization by virtue of living
‘‘with the knowledge that the degrading photo or film may still exist, and may
at any moment be being watched and enjoyed by someone.’’83 Victims of child
pornography do not lose their right to privacy in relation to pornographic images
and recordings of themselves simply because those images have been disseminated.
In R v Barabash, the SCC noted that digital recordings can create their own risk
of harm and that to meet the definition of the ‘‘private use exception’’ in cases of
child pornography there must be consent not only to the creation of the recording
but also to the ongoing nature of the possession.84 Decisions such as R v Sharpe
and Barabash indicate there is some precedent for a conception of ongoing privacy
interests after the initial disclosure of images, grounded in the victims’ dignity.
However, Jane Bailey cautions that approaches to privacy from the child pornography
context may not be easily adopted into cases involving adult women, as children
are considered to be incapable of consenting to the production or distribution of
pornography in which they are depicted, whereas adult women may have consented
to the production or distribution of their images or be presumed to have consented.85
82. See Bailey, ‘‘Equality-Enhancing Privacy’’, supra note 71. Bailey argues that the indi-
vidualistic privacy paradigm is inadequate to capture the collective nature of privacy-
related harms in certain forms of ‘‘expression’’ such as hate speech, obscenity, and
child pornography. She argues for a conception of privacy that requires thinking
collectively about the value of privacy, and how it underpins group rights to substan-
tive equality. Ibid.
83. R v Sharpe, [2001] 1 SCR 45 at 99–100.
84. R v Barabash, 2015 SCC 29 at paras 25, 29.
85. Bailey, ‘‘Equality-Enhancing Privacy’’, supra note 71 at 277–78. Writing in the
context of the Criminal Code’s obscenity provisions, Bailey notes how this perceived
consent is ‘‘in large part because of underlying sexist presumptions about women’s
ongoing sexual availability to men.’’ Ibid at 277. See also Slane, ‘‘Dignity-Based
Privacy’’, supra note 72 at 546.
It is unclear from the case law regarding privacy expectations in the criminal
context whether a dignity-based or liberty-based approach will be applied in cases
of NCDII. There is also little clarity about what circumstances will be considered
to give rise to a reasonable expectation of privacy at the time of the creation of
the image, as required by section 162.1(2). This requirement is similar to that
contained in the Criminal Code’s voyeurism provisions.86 The Ontario Court of
Appeal recently considered what circumstances will give rise to a reasonable
expectation of privacy in the context of voyeurism in R v Jarvis.87 In this case,
the majority found that one’s reasonable expectation of privacy will primarily be
governed by one’s location, with an expectation of privacy in ‘‘a place where a
person feels confident they are not being observed.’’88 Any reasonable expectation
of privacy in a public place will necessarily be limited, extending, for example,
only to areas of the body that are covered or hidden.89 The majority in Jarvis
ultimately found that a high school teacher’s surreptitious recording of his female
students’ chests, done for a sexual purpose, was not properly the subject of a
voyeurism charge as the areas of the school where the students were filmed were
not ones where they had any expectation they would not be observed or watched.90
While the students expected they would not be secretly observed or recorded by
their teacher, the expectation arose from the nature of the relationship between the
students and the teacher and not from an expectation of privacy.91 If such a ‘‘location-
based’’ interpretation of the reasonable expectation of privacy is adopted in cases
of NCDII, it is possible that the recording of intimate images at a house party or
other semi-public gathering would not be considered to be circumstances giving
rise to a reasonable expectation of privacy. This could be so even if the images
are recorded without the knowledge or consent of the person depicted, meaning
the NCDII provisions could be inapplicable where the person depicted did not
give their consent to either the recording or the distribution of the images.92
86. Criminal Code, supra note 3, s 162(1) (voyeurism requires that observation or record-
ing be ‘‘of a person who is in circumstances that give rise to a reasonable expectation
of privacy’’). Ibid.
87. 2017 ONCA 778 [Jarvis].
88. Ibid at para 94.
90. Ibid at para 104 (the majority noted the presence of other students, teachers, staff, and
designated visitors as well as security cameras in many locations inside and outside the
school).
92. It is difficult to determine how the ruling in Jarvis could apply in cases of NCDII. The
majority in Jarvis found a person will normally not have a reasonable expectation
of privacy in circumstances where they are in a public place ‘‘fully clothed and not
engaged in a toileting or sexual activity.’’ Jarvis, supra note 87 at para 108. This
reasoning appears to assume that sexual activity, even in a public place, would give
Vol. 30 2018 133
The definition of ‘‘intimate image’’ in the Criminal Code makes a reasonable

expectation of privacy at two different points in time a prerequisite for any appli-
cation of the substantive provisions and risks focusing judicial scrutiny on the
‘‘reasonableness’’ of the victim’s privacy expectations rather than on the offender’s
behaviour. This emphasis on privacy strips NCDII of its context as a form of
gender-based sexualized violence and may focus judicial attention on whether the
victim’s behaviour in relation to the creation or distribution of the image rendered
any expectation of privacy in the intimate images ‘‘unreasonable.’’
De-Gendered Analysis and Responsibilization in the

Early Case Law
The NCDII provisions, as criminal legislation, will require an individualized approach

to determining guilt and sentencing offenders. At the time of writing, only two trial
decisions have been rendered with respect to NCDII, both of which are oral reasons
for judgment from the Ontario Court of Justice.93 Neither judgment substantively
considers all of the elements of the offence.94 There have been four published
sentencing decisions for the offence of NCDII. However, since sentencing is an in-
tensely individualized process, these cases are necessarily of limited value in terms
of setting precedent or predicting future judges’ interpretations of the provisions.
Nevertheless, an analysis of judicial discourse in these six initial English-language
rise to a reasonable expectation of privacy, even though the voyeurism provisions

require a reasonable expectation of privacy in addition to any nudity or engagement
in sexual activity. Criminal Code, supra note 3, s 162(1)(b). The dissenting judge
concluded that the majority had conflated the two separate elements of the offence
(the surreptitious requirement and the reasonable expectation of privacy) and wrongly
related them to the concept of a lack of consent. Jarvis, supra note 87 at paras 129,
134.
93. R v Verner, 2017 ONCJ 415 [Verner]; R v MR, 2017 ONCJ 558 [MR].
94. In MR, the defence did not dispute that the elements of the offence were met, and the
only issue was the identity of the person who posted the intimate images. MR, supra
note 93 at para 119. In Verner, it was not disputed that the images were posted without
the victim’s consent, and the only issue was whether a screenshot of the victim con-
stituted an intimate image, based on a dispute over statutory interpretation. Verner,
supra note 93 at paras 2, 5. The defence argued that s 162.1(2)(a) should be read con-
junctively, as requiring the subject of the image to be both nude and exposing their
genitals, anal region, breasts, or engaged in sexual activity. Ibid at para 10. The judge
disagreed, finding the provision must be read disjunctively, such that the nude picture
of the victim constituted an intimate image despite not being able to see her genitals,
breasts, or anal region. Ibid at para 13.
NCDII decisions (Initial Decisions)95 is useful for considering: (1) to what extent
the facts of the early cases support a conception of NCDII as gender-based violence;
(2) whether judges, in discussing the impetus behind the criminalization of NCDII,
recognize it as a crime of gender-based violence or its harms as particularly gendered
and premised on women’s objectification; and (3) whether responsibilization narra-
tives or conceptions of an ‘‘ideal’’ victim are impacting judicial interpretation of the
seriousness of NCDII or victims’ privacy expectations.
NCDII as Gender-Based Violence
The gendered nature of NCDII is borne out in the Initial Decisions; every case
involved a male perpetrator and a female victim. Further, in every case but one,96
the offender and victim had at one time been intimate partners. Consistent with
other forms of intimate partner violence, it appears offenders were often motivated
by objectives of controlling and dominating their partners. In three of the Initial
Decisions, the offender held out the existence of the intimate images as a threat
against the victim. In R v Calpito, the offender threatened to post intimate images
of the victim online, and send them to the victim’s mother, if she would not talk to
him.97 In R v MR, the offender threatened to reveal to her parents intimate images
the victim had sent to him in the context of an inter-family dispute.98 This threat
formed part of a pattern of controlling behaviour exhibited by the offender in this
case, such as him seeking to obtain information about the victim from her academic
advisor without her permission or knowledge and persistent communications to the
victim despite her clear position that she did not want any further contact.99
In R v PSD, the victim and offender were in what was described by Judge Danny
Sudeyko as an ‘‘on again, off again’’ relationship, and the crime occurred during a
95. At the time of writing, one French-language decision has applied the provision, R c
Mercier, 2017 QCCQ 4347.
96. R v Agoston, 2017 ONSC 3425 [Agoston]. This decision is an outlier in a number of
respects. Here, the offender’s friend used the offender’s phone to send a nude picture
of the offender to the daughter of one of the offender’s friends, who in turn sent him a
nude photograph of herself. The offender showed the images to a few friends at his
workplace and then deleted them. They were never distributed, and the matter came
to police attention because a supervisor alerted the police. The victim did not call the
police or provide a victim impact statement. Judge Cornell considered the offender’s
act of showing the images to friends to be a ‘‘momentary lapse in judgment’’ (ibid at
para 45), noted that he had been living under restrictive bail conditions for two years,
and granted a conditional discharge.
97. 2017 ONCJ 129 at para 41 [Calpito] (the victim reported this threat to the police, who
spoke to the offender but did not take any further action). Ibid at para 43.
98. MR, supra note 93 at paras 80, 121.
99. Ibid at paras 4, 21.
Vol. 30 2018 135
period when the victim was rejecting the offender’s repeated attempts at contact.100
The offender waited outside of the victim’s home one night, and when she returned
home they got into the victim’s car (for reasons that are not made clear in the judg-
ment) where the offender took pictures of the victim while she was partially clothed.
Sudeyko J described the pictures as showing portions of the victim’s bare breasts,
noting they ‘‘clearly showed her lack of consent.’’101 The offender then sent those
images to two friends, with instructions to save them and ‘‘with the intention at the
time to cause [the victim] emotional harm.’’102 While not clear from the decision,
it is likely that in instructing his friends to save the images, the offender was
attempting to send a message to the victim that he could cause those images to be
disseminated more widely in the future.
In the Initial Decisions where there were no overt or implied threats to distribute
the images, the manner of distribution indicated a desire on the part of the offenders
to punish or exact revenge on their former partners for some perceived wrong. In
R v Verner, the offender had taken a video of himself and the victim having sex,
without the victim’s knowledge or consent. He sent a screenshot from that video
to the victim’s new boyfriend and posted it to Facebook where mutual friends could
view it.103 While he was doing this, he texted the victim messages ‘‘along the lines
that she was a cheater and that she was a bad person.’’104 In Calpito, in addition
to posting intimate images of the victim to Instagram, the offender sent intimate
photographs of the victim to her friends from university and to her employer.105
100. 2016 BCPC 400 at para 5 [PSD].

101. Ibid at para 5 (while he did not elaborate on how the images showed her lack of
consent, from the context of the decision, it is likely the accused forcefully moved or
removed the victim’s clothing and took blurry photographs of her exposed breasts).
102. Ibid.
103. Verner, supra note 93 at paras 1–2, 7.
105. It is difficult to tell from the judgment the extent of the distribution—the decision
states that the victim was alerted by a number of people that they ‘‘had received seven
nude pictures of her through a social media site Instagram.’’ Calpito, supra note 97
at para 45. Instagram functions by individuals posting photos that are accessible to
anyone who follows them (if their account is private) or any person viewing their
account (if their account is public) and is generally not a platform where a person
can send photographs ‘‘to’’ another person. It is beyond the scope of this article to
scrutinize judicial understanding of how certain social media platforms operate, but
it is noteworthy that the judge in Canada’s first social media criminal harassment
case, R v Elliott, 2016 ONCJ 35, also may have misunderstood how social media
platform Twitter operates (at paras 2–4, 37). Scaachi Koul, ‘‘There’s No Such Thing
as Digital-Only Torment’’, BuzzFeed (26 January 2016) <https://www.buzzfeed.com/
scaachikoul/theres-no-such-thing-as-virtual-torment?utm_term=.lb7Pq7jD-
N#.uw2kVm7M8>. Without a clear understanding of the functionality of social media
platforms, judges risk under-estimating the scope of publication of intimate images and
impact on victims.
His stated motivation for this action was to exact revenge on the victim for break-
ing up with him.106
In R v AC, the offender posted multiple sexually explicit images and videos of
the victim to a variety of pornographic websites, along with the victim’s full name,
age, city, and country of birth as well as a suggestion that she suffered from depres-
sion and bipolar disorder.107 He posted vulgar and degrading comments about
the victim in relation to these videos and photos, including that she would ‘‘fuck
anyone who pays her nice compliments.’’108 The offender also commented on one
of the websites that he had wanted to post full-length videos, but was limited by
the website’s size restrictions, and sought input about where he could upload the
full-length versions.109 Counsel for the defendant advised the court that at the
time the offender posted the images and videos he was in a ‘‘dark place, psycholog-
ically,’’ as he had discovered that the victim had been unfaithful to him and had
had an abortion without his knowledge.110 When the offender testified, he also
brought up having been cheated on by the victim.111 Objectifying the victim by
using her body and sexuality as weapons against her appear to have been an overt
attempt by this offender to dominate and cause significant emotional, social, and
professional harm to the victim for exercising agency in ending the relationship
and in deciding to terminate an unwanted pregnancy.
In each of these cases, the offenders sought to control the behaviour of their
former intimate partners or, when they could not, punish them for perceived infidelity
or for having chosen to end the relationship, consistent with other forms of intimate
partner violence. The Initial Decisions demonstrate Mathen’s characterization of
NCDII as a crime located somewhere between criminal harassment and sexual
assault. The offenders attempted to control, terrorize, and degrade their former
partners, and they did this through an act of sexualized violation and objectifica-
tion. Crimes such as these weaponize women’s sexual expression and contribute
to a culture of male objectification of, and dominance over, women. In AC, the
victim was contacted by strangers on multiple occasions who had seen her intimate
images online and who asked her to perform sex acts on them.112 Her intimate
images, taken in the context of a sexual relationship with the offender, were held
106. Calpito, supra note 97 at paras 71, 81.

107. 2017 ONCJ 317 at paras 1, 5–6 [AC ].
109. Ibid.
110. Ibid at para 11. The judge noted that this information was not provided as justification,
but as insight into the offender’s mind, and while he did not conclude that this infor-
mation was true he was willing to assume the offender believed it to be true for the
purposes of sentencing (ibid ).
Vol. 30 2018 137
out and consumed as evidence of her sexual availability to strangers and as evidence
that she was deserving of sexual intimidation and violence.
In addition to the objectification and dehumanization inherent in these crimes,
the offenders understood that their former partners could suffer significant harms
as a result of having their intimate images distributed. The Initial Decisions demon-
strate how NCDII promotes women’s social subordination and exclusion. Actions
such as those committed by the offenders send the message that women’s intimate
images can easily be disseminated online, with drastic and wide-ranging repercus-
sions, unless women categorically refuse to allow such pictures to be taken (although
in Verner and PSD, these recordings were made non-consensually) or behave in
ways that do not upset the men in possession of these intimate images.
Judicial Recognition of NCDII as Gender-Based Violence
It is not surprising that the judges did not explicitly recognize NCDII as being
harmful to women’s equality interests in the Initial Decisions. These were lower
court judgments, or sentencing decisions, and the NCDII provisions do not require
any form of equality analysis. Nevertheless, the judges in three of the Initial Deci-
sions discussed the broader social context of the crime, providing an opportunity
to characterize NCDII as a form of gender-based violence. In AC, Justice M.M.
Rahman cited sections of the then minister of justice’s, the Honourable Peter Mackay,
speech in Parliament, indicating Bill C-13 was a response to ‘‘the contemptable
form of cyberbullying that has emerged, involving the distribution of sexual images
without the consent of the person depicted in that image’’ and ‘‘revenge porn.’’113
Rahman J then summarized Parliament’s purpose in criminalizing NCDII as follows:
The provision protects privacy. At its core, privacy is about a person’s
ability to control access to something, whether it is private information
or a private image. As in this case, someone like C.S. may agree to have
private photographs or videos taken that will not be seen by anyone apart
from a romantic partner. Where someone shares an intimate image without
consent, he violates the depicted person’s privacy because he has gone
beyond that limited, consensual use. The more people to whom the image
is exposed, the greater the invasion of privacy and the greater the harm
caused to the victim.114
This summary of the purpose of the NCDII provisions, and the harms of NCDII,
does not acknowledge why perpetrators might engage in this behaviour or who is
likely to be victimized by NCDII. Further, it conceives of NCDII exclusively as a
113. Ibid at paras 17–19.

privacy violation. While the victim in AC emphasized the betrayal she felt, and the
social and professional repercussions she suffered as a result of her intimate images
being posted online,115 Rahman J described the harms she faced as an invasion
of, or loss of privacy, and having ‘‘lost control over a very private part of her life
forever.’’116 The messages the victim received from strangers, requesting that she
perform sex acts on them, were framed by Rahman J as a ‘‘constant reminder of
the invasion of privacy that the offender caused her.’’117
In PSD, Sudeyko J also discussed the context in which Bill C-13 was passed,
noting that NCDII could cause significant emotional trauma to victims, particularly
‘‘where the victim is a young person and a female’’ and ‘‘[w]here such conduct
includes cyberbullying,’’ noting some young women had taken their own lives as
a result of this behaviour.118 While Sudeyko J recognized the seriousness of NCDII
and the trauma and harm it can cause, he conceived of the provisions as aimed at
protecting young women from cyber-bullying rather than from protecting all women
from objectification and sexualized violence. Ultimately, as will be discussed further,
Sudeyko J found the provisions to be essentially inapplicable to adult women in
circumstances like the victim in the case before him.
Judges also had an opportunity to identify NCDII as a crime of gender-based
violence when discussing the motives of offenders and harms to victims in the
Initial Decisions. In R v Agoston, Judge Cornell noted that Parliament passed the
legislation in response to concerns about the distribution of intimate images in a
public forum, noting that the distribution of such images ‘‘carries with it the risk
of psychological harm and embarrassment’’ to victims.119 Conceiving of the harms
inherent in NCDII as premised on humiliation and embarrassment is consistent
with an understanding of this crime primarily as a breach of privacy.120 In Verner,
Justice S.C. MacLean found that the offender’s sharing of intimate images of him-
self and the victim to the victim’s new boyfriend was done in part to humiliate and
embarrass the victim.121 In AC, as we have seen, Rahman J characterized the harms
of NCDII in almost exclusively privacy-based terms and considered the offender’s
intention to humiliate the victim as an aggravating factor.122 In determining that
a period of house arrest was an inappropriate sentence, Rahman J noted such a
sentence would not deter an offender ‘‘who is considering humiliating his former
partner on the internet’’ nor ‘‘express adequate denunciation of this extremely serious

117. Ibid.
118. PSD, supra note 100 at para 9.
119. Agoston, supra note 96 at para 15.
120. See Gotell, ‘‘Discursive Disappearance’’, supra note 44 at 140.
121. Verner, supra note 93 at 2, 19.
122. AC, supra note 107 at paras 43, 55, 62.
Vol. 30 2018 139
breach of C.S.’s privacy.’’123 Shame, humiliation, and embarrassment were likely

suffered by all victims in these cases, and, indeed, in two instances, the judges noted
that the victims described part of the harm done to them in those terms.124 How-
ever, humiliation, embarrassment, and concerns about victims’ privacy rights were
generally over-emphasized by the judges in the Initial Decisions.
Further, consistent with a focus on privacy, in some of the Initial Decisions,
judges appeared to rank the ‘‘embarrassment potential’’ of the intimate images in
assessing the severity of the offence. Gotell has noted how in the context of records
production in sexual assault cases, admissibility relies heavily on concepts of
humiliation and embarrassment, assessing the potential harm of the records using
a scale that ranks evidence of penetration as the most serious threat to privacy.125
In Calpito, Judge David E. Harris noted that, had the intimate image depicted the
victim involved in sexual acts rather than naked, this would have been ‘‘even more
aggravating.’’126 In contrast, in AC, Rahman J noted that the aggravating factors
‘‘absent’’ in Calpito were all present in the case before him, including that the
images of the victim involved sexual acts.127 Rahman J ultimately found the
offender’s conduct to be on the high end of the spectrum covered by section
162.1, stating that it was difficult to imagine a more significant breach of the
victim’s privacy than what the offender had done.128 Conceiving of harm in NCDII
as based in part on how embarrassing certain forms of intimate images might
be, given their sexual content or lack thereof, removes focus from the offender’s
betrayal and the objectification of the victim.
While harms to victims’ privacy rights were over-emphasized in the Initial
Decisions, this is not to say that the judges did not discuss other harms resulting
from the offenders’ behaviour or that they did not take NCDII seriously. The
offenders’ motivations of extortion,129 revenge,130 and their breach of victims’ trust
in the context of an intimate relationship131 were treated as aggravating factors.
Deterrence and denunciation were emphasized in sentencing the offenders.132

124. See Verner, supra note 93 at para 6; Calpito, supra note 97 at para 51.
125. Gotell, ‘‘Discursive Disappearance’’, supra note 44 at 140; Gotell, ‘‘When Privacy Is
Not Enough’’, supra note 53 at 768.
126. Calpito, supra note 97 at para 85. The judge specifically noted that that was not a
mitigating factor, but ‘‘their absence simply makes the offence less aggravating than it
would have been otherwise.’’ Ibid at para 86.
127. AC, supra note 107 at para 50.
128. Ibid at paras 45, 55–56.
129. Calpito, supra note 97 at para 81.
130. Ibid at para 81; AC, supra note 107 at para 43.
131. AC, supra note 107 at paras 43–44; Calpito, supra note 97 at para 83; PSD, supra note
100 at para 17 (here the judge noted that such a breach of trust could be devastating,
but he did not find that to be the case on the facts before him).
132. AC, supra note 107 at para 54, 62; PSD, supra note 100 at para 10; Calpito, supra note
97 at para 77.
Concerns that judges may dismiss NCDII as trivial, or at the low end of criminal
offending, appear not to have been borne out in the Initial Decisions. However,
the harms being framed so consistently in privacy-related terms ignores the objec-
tification and degradation of women inherent in this behaviour and distances this
crime from sexual assault and other forms of sexualized violence against women.
In terms of how privacy expectations were actually assessed in the Initial Deci-
sions, only Verner involved an analysis of whether a reasonable expectation of
privacy existed at the time of the offence and distribution. There, MacLean J found
that the circumstances of the offender having taken the video without the victim’s
knowledge or consent while they were having sex clearly gave rise to a reasonable
expectation of privacy.133 In terms of the victim’s privacy interest at the time of
distribution, MacLean J noted merely that ‘‘nothing changed between the time the
image was created and when it was posted on Facebook and sent to [the victim’s]
new boyfriend.’’134 Given the extreme circumstances of the initial recording having
been made surreptitiously—in a private bedroom—and the charges relating to the
initial disclosure of this image, this case provides little clarity regarding whether
the reasonable expectation of privacy at the time a recording is made is likely to
be location based, following Jarvis, or whether a dignity- or liberty-based approach
to ongoing privacy expectations is likely to be adopted in future cases.
The decision in AC provides some hope that a dignity-based approach to privacy
could be adopted in the context of NCDII. Rahman J characterized the harm of the
privacy violation as increasing as more people are exposed to the image and as the
victim has to live with the knowledge that strangers anywhere in the world could
view the images at any time, which he characterized as ‘‘the potential violation of
her privacy, by total strangers, in perpetuity.’’135 This conception of ongoing harm
to the victim’s privacy interests is reminiscent of that seen in the child pornography
cases discussed earlier in this article. Privacy interests are not automatically lost
simply because the images have been previously disseminated or because the victim
initially consented to the production of the images, and distinct privacy violations
could be found to occur each time those images are further distributed.
It is far too early to say how victims’ reasonable expectations of privacy are
likely to be interpreted either at the time of creation of the intimate image or at
the time of distribution in future NCDII cases. Given that an analysis of victims’
privacy interests is required based on the wording of the provisions, judges should
adopt an approach that conceives of women’s interests in their naked or sexualized
images as ongoing and directs attention towards offenders’ intentions and victims’
expectations of what use the offender would put the image to, rather than focusing
on the location where the recording was made or whether the image has been dis-
tributed in the past.
133. Verner, supra note 93 at para 9.

134. Ibid.
135. AC, supra note 107 at paras 20, 65.
Vol. 30 2018 141
Responsibilization and the ‘‘Ideal Victim’’ of NCDII

Overall, as noted above, the judges in the Initial Decisions recognized that NCDII
is, or can be, a serious crime. They did not dismiss the crime as not being harmful
by virtue of the actions taking place in ‘‘cyberspace’’ and recognized the real-world
consequences that NCDII can have for victims. Further, it is promising that the
judges did not consider the seriousness of the offender’s behaviour, or the harm to
the victim, to be reduced in cases where the victim consensually sent the images
to the offender in the first place.136 It is significant that, so far, judges have not
employed responsibilization narratives against victims with respect to taking, or
consenting to the creation or initial distribution of, their intimate images. While
this is promising, it is also perhaps not surprising as the Initial Decisions were all
sentencing decisions based on guilty pleas or limited to particular elements of the
NCDII offence that were unrelated to the victims’ consent or privacy expectations.
It remains to be seen what impact consent to having the image taken, or consent to
some limited disclosure, will have on judicial analysis of the provisions where the
defence raises an argument based on an ‘‘honest but mistaken belief in consent’’ or
asserts that victims never had, or have lost, any reasonable expectation of privacy
in relation to their intimate images.
In one case, however, despite a guilty plea by the offender, the judge neverthe-
less appeared to rely on responsibilization narratives. As previously noted, in PSD,
Sudeyko J recognized the serious harms that could be caused by NCDII in the
context of young women being cyber-bullied. However, throughout the decision,
he sought to distinguish the case before him from what Parliament ostensibly had
in mind when it drafted Bill C-13. The victim in PSD was an adult woman, who
had been in a relationship with the offender prior to the offence. In discussing the
offender’s reasons for taking and distributing the images of the victim, Sudeyko J
referred to the offender’s frustration at the ‘‘seemingly mixed signals’’ being given
by the victim, including her complicity in the offender breaching his recognizance
by either agreeing to, or initiating, contact, and her rebuffing his communications
‘‘without a certain end to the relationship.’’137 Sudeyko J agreed with defence
counsel’s concession that the accused’s frustration and anger did not excuse his
actions but, nevertheless, viewed the crime as less serious than it could have been
as it had involved a ‘‘rash decision,’’ and no distribution had occurred (presumably
apart from the offender sending the images to two friends with the intention to
cause harm to the victim).138 He sentenced the offender to two years of probation,
based in part on the offence occurring in the context of a ‘‘volatile and dysfunc-
tional’’ relationship, along with the low level of harm that occurred.139 Sudeyko
136. See Calpito, supra note 97; AC, supra note 107; MR, supra note 93.
137. PSD, supra note 100 at para 12.
139. Ibid at para 23. The victim declined to file a victim impact statement. Ibid at para 14.
J’s characterization of the victim’s behaviour as contributing to, or causing, the

offence is reminiscent of sexual assault and criminal harassment decisions in which
women have been blamed for upsetting their partners or not managing their con-
trolling behaviour.140
Conclusion
The Initial Decisions are necessarily of limited use for predicting how judges will
interpret the substantive NCDII provisions in the future. While none of the cases
involved an in-depth analysis of the provisions or victims’ privacy expectations,
they are consistent with statistics indicating that NCDII is a form of gender-based
violence, committed primarily against women by men. Further, all but one of the
Initial Decisions involved NCDII as a variant of intimate partner violence, with
offenders attempting to control and dominate their partners by weaponizing their
sexualized images against them.
The statutory definition of ‘‘intimate image’’ unduly emphasizes victims’ privacy
expectations and obscures NCDII as a form of gender-based violence. A privacy-
based approach to NCDII frames the harms inherent in this behaviour as being based
on victims’ ‘‘humiliation’’ or ‘‘embarrassment’’ rather than on their objectification
and sexual violation. As long as the statutory definition of ‘‘intimate image’’ requires
judicial assessment of victims’ privacy expectations at two distinct points, judges
should adopt a dignity-based approach to privacy to mitigate harms to women’s
equality interests. Such an approach would conceive of privacy rights in relation
to one’s intimate images as ongoing and not lost simply because those images
were recorded in a public or semi-public place, the victim consented to the produc-
tion or some limited distribution of the images, or the images have already been
widely disseminated. A dignity-based approach would require judges to consider
what expectations victims had in relation to how their intimate images would be
used and direct attention to offenders’ motivations in disseminating those images.
The new provisions and Initial Decisions indicate a willingness on behalf of Parlia-
ment and the judiciary to take NCDII seriously, particularly in the prototypical case
of a young woman whose partner has shared an intimate image entrusted to him
against her will. How judges respond to more complicated cases involving images
recorded in semi-public settings, or consensually disclosed to a limited audience,
will be the true test of whether judges treat NCDII as a crime of sexualized gender-
based violence or a de-gendered, individualized privacy violation.
140. See Grant, supra note 42; Randall, supra note 49.
Vol. 30 2018 143
About the Contributor / Quelques mots sur notre collaboratrice

Moira Aikenhead entered the PhD program at the Peter A. Allard School of
Law at the University of British Columbia (UBC) in 2016, under the supervision
of Isabel Grant. She completed her LLM thesis entitled ‘‘Revisions to Canada’s
Sentencing Regime as a Remedy to the Over-Incarceration of Persons with Mental
Disabilities’’ at UBC in 2014. Moira has taught courses in criminology at Simon
Fraser University and Legal Research and Writing at UBC’s School of Law. Her
dissertation research centres on various forms of violence against women taking
place online or facilitated through the use of the Internet and potential legal solu-
tions available under Canada’s criminal and civil laws. Recently, Moira worked as
a researcher for West Coast Legal Education and Action Fund on their Dismantling
the Barriers to Reporting Sexual Assault project, in partnership with the YWCA-
Metro Vancouver.
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Non-Consensual Disclosure of Intimate Images

as a Crime of Gender-Based Violence

Le projet de loi C-13 a introduit de nouvelles dispositions dans le Code criminel

Non-Consensual Disclosure of Intimate Images as

The Need for Legislative Reform

recognition of the issue of ‘‘revenge pornography.’’7 Revenge pornography generally

Feminist Approaches to NCDII

34. House of Commons, supra note 23 at 32.

Individualization and Decontextualization of NCDII as a

an unconscious woman is inherently violent behaviour.46 Whether or not a sexual

Responsibilization and the ‘‘Ideal Victim’’ of Gender-Based Violence

46. Ibid at 172.

A Feminist Analysis of the NCDII Provisions

64. Gotell, ‘‘Discursive Disappearance’’, supra note 44 at 132–33.

Within this privacy-based definition of ‘‘intimate image,’’ whether and in what

While neither a dignity-based nor liberty-based approach to privacy captures

The definition of ‘‘intimate image’’ in the Criminal Code makes a reasonable

De-Gendered Analysis and Responsibilization in the

The NCDII provisions, as criminal legislation, will require an individualized approach

rise to a reasonable expectation of privacy, even though the voyeurism provisions

NCDII as Gender-Based Violence

100. 2016 BCPC 400 at para 5 [PSD].

106. Calpito, supra note 97 at paras 71, 81.

Judicial Recognition of NCDII as Gender-Based Violence

113. Ibid at paras 17–19.

115. Ibid at para 64.

breach of C.S.’s privacy.’’123 Shame, humiliation, and embarrassment were likely

123. Ibid at para 66.

133. Verner, supra note 93 at para 9.

Responsibilization and the ‘‘Ideal Victim’’ of NCDII

J’s characterization of the victim’s behaviour as contributing to, or causing, the

About the Contributor / Quelques mots sur notre collaboratrice

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