https://orcid.org/0000-0003-1127-9767
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ABSTRACT
The article examines the deepening crisis in the treatment of women and girls by the legal/criminal justice system – as the legal and policy architecture that has long failed to deliver equal access to justice for victims of gender-based violence is confronted with new and altered forms of perpetration. Cautioning against a singular reliance on the law to prevent and respond to technology-facilitated coercive control, the authors contend that piecemeal law reform diverts much needed attention from the broader social and legal reforms needed to ensure equal and safe access to justice for victim-survivors of all forms of gender-based violence, including those forms perpetrated via technology. Through case and legislative analyses, the authors note that efforts to redress the harms of technology-facilitated gender-based violence must be alert to the risks of reactive legislation, discrimination, net-widening and overcriminalisation, victim blaming, systems abuse, and, in some cases, a further loss of autonomy, legal agency, and personhood for victim-survivors. The article concludes by arguing for a dismantling of the structural violence that pervades both the field of digital technology and the criminal justice sector, to avert the continued development, application, and weaponization of new technologies as instruments of misogynist abuse.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 In 2015, England and Wales criminalised ‘coercive or controlling behaviour in a family relationship’ under s 76 of the Serious Crime Act 2015.
2 Like England and Wales, Scotland introduced specific offences to address coercive control within the context of a broader suite of DFV legal reforms. Particularly, the Domestic Abuse (Scotland) Act 2018 proscribes ‘abusive behaviour towards a person’s partner or ex-partner’ (s 1). The law applies to a course of behaviour – defined as ‘behaviour on at least two occasions’ (s 10(4)) and the duration of the conduct is not temporally limited.
3 Ireland introduced a coercive control offence in 2018 with the passage of the Domestic Violence Act 2018. Section 39 of the Act criminalises coercive control in current or ex intimate partner relationships.
4 While no U.S. federal law against coercive control exists, these three states criminalise psychological or emotional abuse, distress or and intimidation, and specific coercive control criminal offences.
5 There is no federal law against coercive control, except the 2020 provincial law, Ontario Bill 207.
6 The only Australian jurisdiction with specific criminal offences relating to elements of coercive control is Tasmania. Specifically, ss 7–9 of the Family Violence Act 2004 criminalises economic abuse and emotional abuse or intimidation in the context of family violence.
7 In the case of discrimination, for example, concerns include the risk that discriminatory stereotypes will compromise access to justice for victim-survivors, in particular for individuals who already face structural violence or marginalisation. See, e.g. Douglas and Fitzgerald (Citation2018).
8 Systems abuse refers to a perpetrator’s ‘abuse of [legal, criminal justice, and other formal] processes to reassert their power and control over the victim’ (Douglas and Chapple Citation2019).
9 For analysis of concerns of this kind, see, e.g. Walklate, Fitz-Gibbon, and McCulloch (Citation2018), Mantle and Hermans (Citation2020), Killean (Citation2021), ANROWS (Citation2021), Walklate and Fitz-Gibbon (Citation2021).
10 These findings are replicated in other jurisdictions. For Australian data on the prevalence of TFCC as part of a broader pattern of gender-based violence, see, e.g. Woodlock (Citation2015; Citation2017), Douglas, Harris, and Dragiewicz (Citation2019).
11 ‘Doxing’ occurs when perpetrators expose personally identifiable information about individuals (e.g., name, home address, etc.) online, or via ICTs, without their consent.
12 ‘Sextortion’ refers to the abusive practice of threatening to release the private or intimate material/images of an individual, unless they provide money, sexual acts, intimate images, or comply with other demands.
13 ‘Cyberstalking’ involves the repeated use of information and communications technology to alarm, intimidate, harass, threaten or frighten individuals.
14 ‘Image-based sexual abuse’ occurs when perpetrators create, steal, distribute, and/or threaten to distribute sexualised or sexually explicit materials, such as images or videos, of individuals without their consent.
15 ‘Identity theft’ refers to the use of personally identifiable information to deceive or commit fraud for economic or personal gain.
16 Scholars identify that harms associated with online sexual and gender-based violence are experienced in much the same way as harms of acts of sexual and gender-based violence that are experienced offline, and that ‘the strict dichotomy (or hierarchy) between physical acts of sexual offending and online abuse is not the reality and is no longer tenable’ (McGlynn, Rackley, and Houghton Citation2017, 37). Henry and Powell (Citation2015) posit the concept of ‘embodied harms’ to challenge trivialisation of harms inflicted through the use of technology.
17 Article 9 requires that States adopt legislative and other measures criminalising a range of offences related to ‘child pornography’ The authors note the importance of eschewing the term ‘child pornography’ which minimises or denies harm, and implies dimensions of consent. Consistent with the Luxembourg Guidelines, the term ‘child sexual abuse material’ clearly conveys that the act/s of procuring, producing, storing, sharing, and viewing child sexual abuse material are strictly and inherently non-consensual acts of child sex abuse.
18 ‘Deepfake videos are the product of artificial intelligence or machine learning applications that merge, combine, replace and superimpose images and video clips onto a video, creating a fake video that appears authentic’ (Maras and Alexandrou Citation2019, 255).
19 Proving this form of abuse in court is fraught with difficulties, including the evidentiary burden that falls to victim-survivors, and the fact that symptoms of victim-survivors’ trauma and hypervigilance during oral testimony may be misinterpreted as signs of a lack of credibility (Bishop Citation2016).
20 Supreme Court of Tasmania: Harrison v. Moore [2018] TASSC 53 (19 October 2018).
21 This is the case in Victoria, Australia. The Family Violence Protection Act 2008 (VIC) defines family violence as including behaviour that ‘(i) is physically or sexually abusive; or (ii) is emotionally or psychologically abusive; or (iii) is economically abusive; or (iv) is threatening; or (v) is coercive; or (vi) in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person’ (s (5)(1)).
22 For information about New York and other U.S. states’ restraining order provisions, see WomensLaw.org, Legal Information Map: https://www.womenslaw.org/laws?reset-state=1.