Senate Passes Civil Penalty Regime to Combat Image-Based Abuse

Today the Senate passed the Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017 with some surprising, significant amendments. This Bill is part of the Australian Government’s efforts to combat image-based sexual abuse, and was developed from a public consultation into a proposed civil penalty regime (submissions/public workshops) conducted by the Department of Communications and the Arts between May – July 2017.

The Australian Government’s proposed framework is to establish a Commonwealth civil penalty regime to complement:

  • The world-first image-based abuse complaints portal run by the Office of the eSafety Commissioner which provides: information and advice, options for removing and reporting abusive images and videos, and resources and case studies; and
  • Existing Commonwealth and state and territory criminal offences.

The Bill establishes a civil penalty regime that would, as outlined in the explanatory memorandum: “prohibit the non-consensual posting of, or threatening to post, an intimate image on a ‘social media service’, ‘relevant electronic service’, e.g. email and SMS/MMS, or a ‘designated internet service’, e.g. websites and peer to peer file services”, among other things.

It imposes a civil penalty, rather than a criminal liability, of $105,000 for individuals who contravene the prohibition; and a civil penalty of $525,000 for corporations who fail to comply with a ‘removal notice‘ that may require a social media service, relevant electronic service or designated internet service to remove an intimate image from their service.

The Bill also empowers the eSafety Commissioner to investigate complaints, issue formal warnings and infringement notices, provide removal notices and written directions to ensure future contraventions do not occur.

The general consensus from the Senate this week was that Labor, The Australian Greens, and The Nick Xenophon Team welcomed and supported the Turnbull Government’s Enhancing Online Safety (Non-consensual Sharing of Intimate Images) Bill 2017. Although as Labor Senator Deborah O’Neill pointed out the “Turnbull government has been dragging its feet and has taken far too long to address this issue of image based abuse. The bill comes in the fifth year of the Liberal government and over two years after Labor’s first proposes, stronger measures”.

While Labor supported the Bill as a step in the right direction, they did not think it went far enough. Labor called on the government to criminalise the non-consensual sharing of intimate images citing:

  • The COAG Advisory Panel on Reducing Violence against Women and their Children who recommended in April 2016 that strong penalties for the distribution of intimate material without consent be developed to “clarify the serious and criminal nature of the distribution of intimate material without consent”;
  • Concerns by the Commonwealth Director of Public Prosecutions in a Senate Inquiry submission by the Senate Legal and Constitutional Affairs References Committee that “there are limitations on existing Commonwealth laws to adequately deal with ‘revenge porn’ conduct”;
  • Research from RMIT and Monash University that 80% of Australians agree “it should be a crime for someone to share a nude or sexual image of another person without that person’s permission”.

The Australian Government responded to the push to criminalise image-based abuse at the Commonwealth level by pointing out that there is already an existing Commonwealth criminal provision in place under s 474.17 – the misuse of a carriage service in the Commonwealth Criminal Code Act 1995. However, this non-specific, existing provision has been highly and widely criticized for its limited applicability to image-based abuse.

As a result, a significant amendment to the civil penalty regime was successful in the Senate today, namely to amend the Criminal Code Act 1995 to include specific criminal offences that would criminalise sharing and threatening to share, intimate images without consent. While this amendment to introduce criminal offences in conjunction with the proposed civil penalty regime may return to the Senate after transmission through the House, this amendment could mean an incredible move toward justice for victims of image-based abuse. 

In the Senate debate the Australian Greens stated that they were disappointed that the Bill was brought on for debate in such ‘haste‘ without allowing for proper scrutiny (e.g. inquiry). Australian Greens Senator Jordon Steele-John pointed out that “many of those consulted are under the impression that they will subsequently be given the opportunity to give their thoughts, opinions and expertise in regard to the outcome.”

In light of the lack of proper scrutiny of this Bill, another amendment to the Bill (sheet 8364 revised) was agreed to being that of the establishment of an independent review (and written report of the review) of the operation of the civil penalty regime within three years after the commencement of the proposed legislation.

In addition, the Australian Greens expressed concern that the Turnbull Government has forgotten to allocate any funding to the cost of running the scheme. While the explanatory memorandum of the Bill provides a ‘Financial Impact Statement‘ which states that the civil penalty regime “might have a minor impact on Commonwealth expenditure or revenue”, and “any additional funding will be considered in the 2018-19 Budget”, there is a level of uncertainty as to extent of funding needed to carry out this scheme. Labor Senator Louise Pratt also highlighted the “minimal resources that the eSafety Commissioner currently has for undertaking this kind of work”. I anticipate that the question of funding will be discussed in the House.

Also, One Nation Senator Hanson talked about her own experiences where she was subjected to the ‘degrading’ and ’embarrassing’ publication of images of a woman who was partially nude and false claims that they were pictures of her. However, Hanson went on to express some dangerous rhetoric about image-based abuse:

Hanson said:

“As the old saying goes, sometimes it takes two to tango. I say to anyone out there who thinks that intimate images of themselves are okay to send via text message or email: ‘Stop it. Keep it for the bedroom.’ People, regardless of your age, it’s in what is told to you by your parents and how you feel about yourself: people have to take responsibility for their own actions. Young people who get requests for intimate images of themselves early in relationships should not do it. Relationships don’t always last, and the person they are with may very well turn nasty on them. I’m very pleased to say that One Nation are a part of putting a dent in this abhorrent trend of shaming people using online methods and intimate images, but I reiterate: I want every man, woman and young adult to know that they too must play a role in ensuring their private photos are kept private.”

This rhetoric by Hanson perpetuates an insidious culture of victim blaming. It sends a harmful message that victims are partly responsible for the horrific and criminal actions of perpetrators. And may discourage victims from speaking out or seeking help because they feel they are to blame.  Perpetrators who share, threaten to share or record intimate images without consent are the ONLY people responsible for image-based abuse – not the victims. Many people – young people and adults – are capable and do engage in the consensual practice of sharing intimate images in a respectful, healthy, safe, loving or intimate way. But image-based abuse is the clear absence of consent and respect. Image-based abuse is perpetrated for various reasons: to humiliate, shame, intimidate, coerce, control, harass and violate victims, it’s also perpetrated for sexual gratification, social notoriety, and financial gain. Our standards and expectations of behaviour shouldn’t be so low that we hold victims partly responsible for the heinous actions of perpetrators.

When it comes to young people, there is a growing problem of young girls feeling pressure to send intimate images of themselves, and this is something that desperately needs to be addressed with respectful education initiatives and programs. We must teach young people about the safe use of technology and associated risks, consent, respect and we must empower young girls to take control of their online usage and agency – but we mustn’t, in any way, send the message that young people who send intimate images of themselves are somehow responsible for the actions of perpetrators who betray their trust or personal privacy.

To echo the sentiments in the Senate: this Bill is a significant step in the right direction, and when taken in conjunction with the amendment to introduce Commonwealth criminal offences, today marks a significant move toward long-awaited justice for victims.

I am extremely grateful to the Australian Government, Senator the Hon. Mitch Fifield, the Department of Communications and the Arts and all the stakeholders involved in the public consultation of this Bill, as well as everyone who has worked hard for years fighting for justice and accountability. Here’s to hoping for a smooth passage in the House. This is fantastic news!

Trading Pleasure for Consent

Let’s get one thing straight: stealthing is sexual assault.

You could be forgiven for not knowing what stealthing is, except that is part of the problem. Recently the HuffPost claimed stealthing was a ‘new sex practice’, but since then people all over the world have been coming forward and telling their stories, implying there is nothing new going on here. We are just finally talking about it.

The term itself is fairly new and the internet has been quick to inject the phrase into the online lexicon. But in case you’re still not familiar with it allow me to summarise:

Stealthing is the act whereby one party removes the condom during sex without the other party’s knowledge or consent. Gross, right?

The recent surge of online debate over stealthing began when Alexandra Brodsky of Yale Law School posted a study suggesting that the trend was on the rise in the US and calling for new laws to concretely safeguard victims.

Source: Instagram/@honestly_quotes

In recent years, courts from all over the world have found stealthing to be a clear breach of bodily integrity and a non-consensual sexual act. Bills have been introduced in the US to criminalise it in California and Wisconsin, and a similar piece of legislation is under consideration in the UK.

Now that you know what stealthing means you’re probably thinking ‘Oh, I’ve heard stories about that. Hasn’t that been going on for ages?’ And the sad truth is yes, it probably has. The development of sexual assault and other crimes of a sexual nature, as they are defined under the law, has been painstakingly slow. Some parts of Australia had no laws against marital rape until 1987, and we only managed to introduce legislation criminalising image-based abuse, commonly referred to as ‘revenge porn’ this year. We’ve been well behind the game.

This slow progress can also be seen in stealthing. There have been no cases of stealthing brought before the courts in Australia, and no legislation specifically mentions the ramifications if protection is removed during intercourse without both parties consenting. I can understand the law being slow if it is catching up with technology, but condoms aren’t exactly the latest and greatest in contraception. So what’s the deal?

If I were a betting woman – and I’m not, but if I were – I would guess that the reason there has been no action in this area of law is because nobody is reporting it. Like most issues with sexual assault, it all comes down to whether the victims step forward. And as usual this comes with a whole other mix of problems, from not understanding that what happened was ‘assault’, to not wanting to get a friend or loved one in trouble. One account online of a victim of stealthing also noted that the police did not take her matter seriously when she gave her statement. Sound familiar?

Time and time again victims of sexual assault are having to fight against this overriding theme that consent is not as important as pleasure. Allegations of rape always contain questions over whether the victim was ‘asking for it’ or whether the victim simply regretted it the next day. Sex is fun, sex is pleasurable, people love to have sex! So victims are asked if they are sure they didn’t consent, and if they are sure it was rape. Because to some people any sex is still sex.

Stealthing is the ultimate example of this. Offenders remove the condom, most typically because they can experience more pleasure without it, be it from the physical experience or the feeling of degrading the other party. And in exchange for this pleasure is the consent of the victim, who has no idea that the terms upon which they agreed to have intercourse have been rewritten.

Imagine sex like a contract. Both parties put forward their terms. Lights off. Reciprocal orgasms. But most importantly: a condom. Then during the execution of the contract the terms are changed. And not just any term, but one of the big ones. One of the terms that protects a party’s physical autonomy – the term that protects them from falling pregnant or potentially contracting an STI. That shield is literally taken away.

If you agreed to enter a boxing match on the condition you wear protective gear, wouldn’t you be angry if half way through the match they took your helmet away and continued to punch you?

So while Australian law remains silent on stealthing, it is important that victims don’t. Men, women and non-binary victims who have had their bodily integrity compromised by the selfishness of another. People who have been violated and assaulted by offenders who have consistently gone unpunished.

Stealthing is not a prank. It is not a joke. There is nothing funny about sexual assault.

And as far as I’m concerned that’s all stealthing is: sexual assault. And the sooner we stop trying to divert the conversation about sex-based crimes with discussions centered around pleasure, the better.

Featured Image: Encouraging Life Organisation which provides services on ‘reproductive, sexual health and comprehensive sex education’

An Open Letter to the United States

Dear United States,

Hi, how are you? Been better? Sounds about right.

My question for you today is very simple: how?

How could you allow a man who openly admits to grabbing women by the pussy to run for President? How could you allow a man be seriously considered for such an important position when many of his own party members have turned against him? How can the land of the free allow a man who wants to build a wall around your great country tread so close to the Oval Office? How can so many of you support a candidate whose campaign followers were calling for a repeal of the 19th Amendment just so their candidate can win?

Respectfully, how could you let Donald Trump run for President?

I admit that I am not American. I am not a citizen of the United States, and I have no right to vote. Who am I to have such a vested interest? Who am I to judge? After all, Australia isn’t exactly a role-model global citizen either. Why should some random whiney gen-Y girl from down under care what happens in America? Or perhaps more accurately, why should you care about what some whiney gen-Y girl from down under thinks about America? And the answer is simple:

You are the leader of the free world.

I do not know who coined the idea. I do not know exactly when or why you first started branding yourselves as leader of the free world, and frankly I don’t think it matters at this point. It simply matters that you are the self-proclaimed leader of the free world. Whoever you elect as your leader will fundamentally impact the rest of us in the free world – and there are a lot of us. You aren’t the only ones counting down until November 8th.

Your presidential campaign splashes all over my news headlines. I open Facebook and my friends – both American and non-American – know exactly what is happening on your side of the world and Australia isn’t the only country watching. In fact, I can’t imagine a country that isn’t watching the showdown between Clinton and Trump unfold. Hell, they even broadcast the presidential debates live on TV over here. Did you know that? Did you know the entire world is watching?

We are watching as Donald Trump talks about women. Our boys are listening as he describes grabbing women by the pussy because ‘you can do anything’ when you’re a star. Our girls are learning that it’s all just ‘locker room talk’, and it’s normal for guys to do that to them. We are watching people celebrate a man who at the second Presidential debate was asked if he had assaulted women and answered by talking instead about the Middle East, because that’s what will truly ‘make America safe again.’

But stricter borders won’t protect people from sexual assault.

I know you’re scared. I get it. You’re scared because you have seen the horrible things happening around the world, and they seem to only be getting worse. You’re scared because terrorism isn’t a country, it’s an idea and you can’t recognise an idea when it walks past you on the street. You’re scared because the economy is bleeding and you’re drowning in debt and everybody needs to make a living. You’re scared because the world is scary right now. I’m scared too.

So when somebody stands up before you, wielding great power, money and influence, saying they can fix all your problems, I get it. You want to believe their financial success means you can have financial success. I get it. When they point to a group of people and say they’re the problem, you feel comforted. You feel like you can see the things you’re scared of. You can recognise it and finally keep yourself safe. I get it.

But it’s not that simple. It never is.

Fear is not a religion. It is not a race. It is not a gender. It is not every person with brown skin you see walking the streets. It is not hidden beneath every hijab. It is not concealed behind every accent. It is not written in code on the papers of every immigrant or refugee you see. It is complex and it disguises itself well – that is part of what makes it so terrifying. You often cannot see it until it announces itself, and by then it’s sometimes too late.

But you should not condemn hundreds and thousands out of fear. You should not brand a whole race of people as rapists and wall them out. You should not paint all refugees with the brush of mistrust and show them no compassion. You should not assume every Muslim means you harm and let racism exclude them. You should not be letting young boys believe that they can grab women without asking. You should not let your police frisk people on the street because of their skin colour. You should not let women feel like their vote is getting in the way of progress.

You are the home of the brave; please don’t let fear defeat you.

Critiquing the Criticisms of the ‘Regressive Left’

Lefties are often criticised for being regressive. I’m going to address the most common criticisms against us so-called ‘regressive lefties’: (1) that lefties are ‘against’ freedom of speech in that they tolerate views that conform with progressive thought but shun, ban and label those to voice non-conformist thought; (2) that lefties silence opposition; (3)that lefties are actually the racists and bigots of society, in that they preach inclusivity but give special treatment to certain groups in society such as women and ethnic minorities, thereby discriminating on the basis of race or gender rather than an individual’s merit, character and quality of ideas, and lastly that; (4) meritocracy is better than affirmative action.

So let’s break this down:

  1. Free Speech

One of the most significant criticisms of contemporary left-winged discourse is that we’re ‘against’ freedom of speech, in that we permit discourse that conforms with progressive thought, but any dissenting opinion is shunned. Lefties are also criticised for being regressive because we arbitrarily label those who don’t agree with us as misogynists, racists, bigots, xenophobes and the list goes on.

This idea that lefties are ‘against’ free speech is just simply untrue. We are well aware of the importance of free speech, we know that free speech is essential for the realisation of truth which comes from the free flow and exchange of ideas; we know that free speech is essential for democracy and for self-determination. However, free speech is, and has never been an absolute principle. It is widely accepted and recognised that curbing free speech is necessary in certain circumstances, particularly in order to protect people from harm that can result from certain forms of speech. Australian society already has laws that curb free speech such as our anti-vilification, defamation, privacy, broadcasting and censorship laws et al.

The thing is, while free speech is important to society it can be just as harmful, especially when the harms are felt by certain groups and minorities in society who have been systematically and institutionally oppressed throughout history and in society today, particularly vulnerable groups such as the LGBTI community, women, ethnic minorities and so on. Harmful speech directed at minorities can further isolate, alienate and disenfranchise those who are already on the margins of society.

So, while it may be perceived by some that lefties are ‘against’ free speech, what is really happening is that to the extent that forms of free speech have the very real potential to harm individuals, we err on the side of restricting that speech to mitigate such harms, in order to create a more inclusive society for all.

Let’s break this down further:

2. Silencing Dissenting Opinions

Firstly, this criticism assumes that any dissenting opinion, or anyone who voices non-conformist views are not racist, misogynistic, bigoted or xenophobic. Very often those who are publicly condemned for their ‘dissenting opinions’ are in fact sprouting hate speech under law, or sprouting extremely hateful speech under the court of public opinion. This criticism also assumes that any dissenting opinion or anyone who voices non-conformist opinions should not be banned from voicing that opinion, yet we as a society are already prepared to ban certain forms of speech under our laws that serve to harm individuals and groups in society.

However, is there a culture of ‘silencing’ by lefties? It is not uncommon to hear of the banning of certain speakers from talking at universities by special interest groups who disagree with the views held by such speakers.We saw this last year when Univeristy of Manchester’s Student Union banned Milo Yiannopoulos from speaking at a debate. Even more recently it was announced that Villanova University cancelled an event that Yiannopoulos was supposed to be speaking at, due to left-wing oppostition.

Also, it is not uncommon for comments and statuses on social media to be arbitrarily labelled as racist or bigoted for being unpopular opinions – to some extent we do see this happening with the views of the Pauline Hanson’s, Katie Hopkin’s and Donald Trump’s of the world (Again, doesn’t change the fact that they could be). Similarly, it is not uncommon to hear of people losing their jobs for tweeting and posting Facebook statuses that offend some people.

Having said that, it is not entirely true that lefties are just ‘silencing’ opposition, very often dissenting opinions are not silenced but just met with protest. And rightfully so. We saw this when students from Brunel University collectively and quite literally stood up and turned their backs on Katie Hopkins when she began speaking at a debate. The students didn’t stop Hopkins from speaking, but demonstrated that they didn’t like what she had to say.

If in fact this culture of silencing exists, it is a very worrisome trend that could have serious implications for free speech and could prevent meaningful debate in society.

3. ‘Regressive lefties’ are the bigots/racists

Another criticism of lefties is that we preach inclusiveness and tolerance but only apply this to women and ethnic minorities in society. Lefties are also accused of being racist and bigoted because of schemes such as affirmative action that give preferential treatment to women or members of minority groups rather than on an individual’s merit, quality of ideas or content of character.

Firstly, this criticism ignores the empirical realities that the systematic oppression of women and ethnic minorities makes it extremely difficult for vulnerable groups to even break into social structures, completely ignoring the need of such affirmative action policies to break down such difficulties. This criticism also assumes that all groups in society are on a level playing field and anyone can just enter into our social structures – jobs, politics, access to education, healthcare, welfare, you name it. But this is not the case, our social structures are still dominated by those with privilege. Let’s not forget who are really the ones that have been isolated and excluded from society throughout the ages.

Australian society throughout history and in contemporary times is undeniably based on a social structure that has and is dominated by the powerful voice of those with privilege, specifically white, straight, cis males, who haven’t had to fight for basic civil liberties like other minorities. Privileged peoples are the beneficiaries of a social structure that favours them, whether they want to deny their privilege or not.

It is said, that ‘privilege implies exclusion from privilege,’ and we see this in the systematic oppression of vulnerable and minority groups- We see the systematic oppression of women and minority groups in their lack of representation in parliament and in the workplace. We see the systematic oppression of women, in our child support and social welfare schemes that largely fail to acknowledge the unpaid work of mothers in child rearing, making it very difficult for women who are the primary carers of children in our society to enter or return to the workplace, thereby perpetuating the gender pay gap.

4. But meritocracies would be ‘fairer’ for all

Meritocracies can only do so much in providing opportunities for all in a society where there is a dominant group and where minorities have been and still are systematically oppressed. We can’t talk about being a meritocratic society if certain groups can’t even enter into social structures. Affirmative action is necessary to break down the barriers and for women and vulnerable groups to become included in society’s social structures. How can we have an inclusive society if our discourse is dominated by those with privilege and if the voices of the most vulnerable groups in society are not adequately represented in our law making bodies or other social structures? How can we have an inclusive society if it is difficult for women with children to re-enter the workforce? And so on.

Up until the time that groups in society are on a level playing field where no group is systematically oppressed or as close to not being systematically oppressed, then can the notions of meritocracy come into play.

Lefties are not being racist or bigoted for ensuring a more inclusive society for all, and if a position is reserved for a member of a vulnerable group over one that would usually go to a white, straight, cis male – then for equality moving forward, this would be necessary. Necessary up until society becomes a more inclusive society and certain minorities are no longer systematically oppressed.

For those who still think affirmative action is racist and bigoted- check your privilege.


Featured Image: Zac Quitzau Facebook: Zac’s Doodles

Written by Noelle Martin. This article or a version of this article may appear in Macquarie Street Magazine.



Do we need a Men’s Rights Movement?

I arrived at the question of a men’s rights movement as a sceptical, self-proclaimed feminist.  After extensive research, I’ve remained a self-proclaimed feminist, still sceptical of the men’s rights movement, but not of men’s rights. Let me explain.

Throughout history, women and men have been fighting to erode the gender binary. Feminism was established to push the female agenda so females could have the same rights as males. Somewhere along the line, feminist semantics have led to the misinformation of what it means to be a feminist. Feminism has been misconstrued to be synonymous with misandry and male oppression. Now we see feminism divided into what seems like factions, from radical feminism, to feminazis.

Amid the feminist semantics and efforts to push the female agenda in order to gain equal rights to men; two things happened. One, men’s rights were overlooked. Two, we saw the emergence of a men’s rights movement created as a counter-movement to feminism. ‘Why’ the movement was created is an objection to the movement itself, its ideology was not built on pushing the male agenda, in order to ensure gender equality, it seemed to almost be created in spite of feminism, to redirect feminist efforts. The “why” factor has been a huge point of contention for feminists who question the movement. In recent years the movement, according to some feminists, has gained traction by instilling a hatred for women evidenced by their campaign “Don’t Be That Girl”. ‘How’ the movement is carried out has ignited a wildfire of backlash by feminists who question the credibility of the ‘misogynistic’ movement. It’s the “why” and “how” of the movement that casts shade over men’s rights.

The movement is doing a better job at polarising feminists than solving the serious and real issues men face such as the high male suicide rate, inequality in custody disputes, unequal parental leave, false accusations of domestic and sexual violence and the stigma around men as victims of domestic and sexual violence and many more.

At Macquarie University we can see how the movement itself, casts shade over the real issues men face. Females have a women’s room. Men have no equivalent. Male students have claimed it is sexist that they don’t have a men’s room, when females do. Yes, if men want a men’s room, and women have one, then theoretically it would be sexist to deprive men of that right, but I don’t have to be a male to see that this claim of sexism is fuelled more by spite, than the fact that men have a pressing and real need for a safe haven from females. This kind of tit-for-tat, fuelling the men’s right movement doesn’t help the case for men’s rights.

As I’ve said, I’m sceptical of the men’s rights movement, but not of men’s rights. To answer the question at hand, do we need a men’s rights movement? Certainly, not this one. Feminists should be reminded that the end goal is gender equality, and so fighting for men’s rights should be just as important as women’s rights. I’ll leave you with one final thought, is gender equality even possible, and if it is, what would it actually look like?

(Published in Macquarie Liberal Street Magazine)

Featured Image: Zac Quitzau Fb: Zac’s Doodles