A Critical Analysis of the Conduct and Fault Elements in 'Revenge Porn' Criminalisation

The non-consensual distribution of intimate images popularly known as “revenge porn” has been increasingly subject to criminalisation across a range of jurisdictions internationally. While it is accepted that there is a need for new offences to capture the most problematic of behaviours this article will consider the varied options and consequences for the phrasing of the conduct and fault elements of criminal responsibility for “revenge porn” offending. Excessively broad conduct and fault elements could lead to behaviours being subject to prosecution that may be innocent, not offensive or harmful. Alternatively, excessively restrictive elements may mean that offensive and harmful behaviour escapes prosecution. Ultimately, the authors argue for a range of elements that tend toward a narrow phrasing in order to only capture that conduct which is substantially offensive and harmful to victims, according to the social standards of sexting between consenting adults.