Intimate Images and the Law: A Resource for Adult Survivors

An intimate image is any photo, video, or other visual recording that depicts a person’s genitals, anal region, breasts or involves persons engaged in sexually explicit activity. An intimate image can be a permanent image like a photo or a video, or a disappearing image like a Snapchat or FaceTime call.

You have done nothing wrong if you have taken an intimate photo or video of yourself. It is also not your fault if someone has shared or distributed that photo or video without your permission. If you share an intimate image of yourself with someone through text, messenger, or email, you have the right to privacy and to not have that image shared without your consent.

If someone has shared an intimate image of you without your permission, or if someone is threatening to share an intimate image of you, there are several legal options that may be available.

You have options when reporting sexual violence. Reporting an experience of sexual violence is often called “making a complaint”.

Depending on your location, you may need to report to the Royal Newfoundland Constabulary (RNC) or the Royal Canadian Mounted Police (RCMP). The RNC is responsible for the Northeast Avalon region, Corner Brook, Labrador City, Wabush, and Churchill Falls. The RCMP is responsible for all other areas of the province.

If the police have enough evidence to lay a criminal charge for distribution of intimate images without consent, the matter may end up in court.

If your matter ends up in court

In a criminal matter, the job of the Crown is to prove guilt beyond a reasonable doubt. This means the judge (or jury) must be almost absolutely certain that the accused is guilty. The Crown must show that the intimate images were created and distributed without consent to a standard of “beyond a reasonable doubt.” This means a judge must not have any reasonable apprehensions that the accused did each part of the offence.

The Crown must prove that the images created were of the survivor and that those images were distributed without the survivor’s consent. This can be shown by screenshots, links, photos of websites, or testimony from third parties who received the images.

The Crown will be required to show that the survivor is the person in the photos. This can be through a visible face, their voice, tattoos, and other identifiable characteristics in the intimate images.

The Crown will also have to prove that the accused is the one who distributed the images. This can be through evidence that they posted the images, posted them to their online profiles, sent them to friends or family of the accused, or that they were the only person other than the complainant who was able to distribute the photos.

Will I need to testify?

Testifying in court can often feel retraumatizing for survivors. You may be asked invasive or embarrassing questions, or to recall details that you have already provided multiple times. This can be very difficult. Try to provide as much information as possible. There are also supports and testimonial aids that may be available to you during trial.

The court may ask when and where the photos were taken, who they were taken by, when you learned they were distributed, and whether or not you gave consent to them being distributed.

Verdict

The court may find the accused not guilty if they demonstrate they had consent to distribute images, if the accused is able to show reasonable doubt that it was them who distributed the images, if there was not a reasonable expectation of privacy at the time the images were created or distributed, or if the court is unable to identify the survivor from the images.

If the court finds the accused guilty, the sentence could include a period of probation, a fine up to $5,000, a conditional imprisonment sentence (also known as “house arrest”), or imprisonment for up to five years

Survivors who do not want to report to the police may have other legal options. Civil litigation, usually referred to as suing someone or filing a lawsuit, can sometimes be a legal option for survivors of sexual violence.

Civil litigation is a type of private law where people who have been harmed physically, mentally, or financially, or whose property has been damaged can seek a remedy directly from the person or group that caused that harm or damage. In most cases, that remedy is money.

In a civil matter, a survivor is called a plaintiff. They are entitled to hire their own lawyer to represent them. If an individual is unable to hire their own lawyer, they would have to represent themselves in court. It is strongly recommended that an individual seek legal advice before representing themselves.

The requirements to prove the case are the same, but in a civil case there is only a requirement to prove it was more likely than not committed by the accused, rather than the tougher criminal standard of “beyond a reasonable doubt.”

Other areas of law

Depending on the situation, there may be other criminal offences that your matter may fall under.

Extortion – Under the Criminal Code, extortion refers to forcing or threatening someone to do something by using “threats, accusations, menaces, or violence.” This could potentially include threatening to distribute intimate images of a person unless they pay money or do other things. Extortion is a crime under s. 346 of the Criminal Code.

Criminal Harassment – Criminal harassment occurs when someone causes another person to feel unsafe. This can be done by repeatedly following someone; repeatedly communicating with them through text, email, social media apps; stalking someone at home or at their place of work; or engaging in threatening conduct with the person or their family. Criminal harassment is a crime under s. 264 of the Criminal Code.

If another person is making you fear for your safety, or the safety of your children, spouse or partner, or your property, then you can apply for a Peace Bond against that person. This is a court order that places certain conditions on an individual’s behaviour for up to 12 months.

An Emergency Protection Order is a document issued by the Provincial Court that a judge may grant quickly when intimate partner violence has occurred. This order would also place certain conditions on an individual’s behaviour for up to 90 days.

Your safety is the number one priority. To talk about safety planning, contact The Journey Project, Victim Services, a transition house, a safe house, or the police.

If someone has shared an intimate image of you without your permission, or if someone is threatening to share an intimate image of you, there are several legal options that may be available.