Yesterday, the Minister of Justice introduced Bill C-13 into the House of Commons. If passed, it will criminalize the publication of "revenge porn." The bill has already been praised as a step in the right direction as we address "cyberbullying." I don't have a problem with that – who is going to argue that there should be more bullying in the world?
But revenge porn raises a more fundamental issue about how our society thinks about sex, and what it thinks about women who have sex, and nothing in this bill even begins to address that. Indeed, it arguably legitimizes some pernicious and damaging myths.
A prohibition on revenge porn, of course, tackles only one quite narrow category of bullying: "slut-shaming." Revenge porn purports to humiliate people – mainly, women – by showing them engaging in sexual conduct that they could reasonably have expected to remain private. The proposed offence does not make it necessary for the Crown to prove a desire to humiliate. Notably, a person who sells revenge porn simply to make a profit is also caught by the bill so long as they know that the individual depicted in the image or recording has not consented to its distribution. But the proposed offence goes after after profit-seekers primarily to give them an incentive not to provide a forum for ex-boyfriends and jilted husbands who want to expose women to public embarrassment and ridicule.
The effectiveness of revenge porn as a form of, well, revenge, depends entirely on the perception that a person who engages in consensual sexual activity has done something shameful. Destroy that perception and one kicks the legs out from under the impetus to distribute revenge porn in the first place. Yet no one suggests that the government should take steps to transform the widely-held (if often implicit) attitude that people, particularly young women, who engage in sexual conduct have somehow degraded or diminished themselves and are therefore suitable subjects for mockery or humiliation. It is much easier to craft criminal legislation that addresses one effect of a slut-shaming culture.
To a point, that is fair enough. It is no small matter to change social norms, and we do not want to leave women exposed to public ridicule while we engage in the long and arduous process of education. In 1992, when the rape shield provisions were debated in Parliament, it was frequently argued that changes to the Criminal Code alone would not transform social attitudes treating women as passive sexual objects. Education was needed to change the culture at its core, and not only at its criminal edges.
Much education has indeed been done, but more than 20 years later the norms that Parliament attempted to address have proven highly resilient. It makes sense to use the criminal law to deal with some of the more worrying or immediately harmful effects of a slut-shaming culture while we undertake the larger task of changing the culture itself. My point is that there is, at the moment, no indication that anyone in Parliament wants to undertake it.
There is some irony in the fact that this bill was inspired, at least in part, by the terrible case of Rehtaeh Parsons, because it illustrates how we send mixed messages about slut-shaming and bullying. The public was outraged over Parsons' suicide. But there was also considerable debate over whether the video which drove her to kill herself depicted a consensual sexual encounter rather than a brutal sexual assault – as if something morally significant turned on the question. It was as if we were saying that, if the acts were consensual, she ought to have been ashamed.
Slut-shaming lurks where you least expect it. There is, for example, a great deal of tut-tutting over young women engaging in casual sexual relationships, as if they somehow irretrievably damage themselves by doing so. This talk of women "degrading" themselves is, one gets the sense, typically well-meaning. But it is difficult to speak of people degrading themselves without suggesting that they are now degraded, and therefore less worthy of respect. That is not the message people typically want to send, but we need to have a richer, more nuanced public conversation about just what it does mean to say that consensual sexual activity "degrades" the individuals involved.
Going forward, one may hope for a more pronounced cultural shift in our attitudes towards sex, and female sexuality in particular, rather than just a narrowly tailored criminal offence.
Michael Plaxton is an associate professor of law at the University of Saskatchewan