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There is limited data on the extent and the nature of this activity. Much of what is known about this behaviour is anecdotal and comes from the United States. A recent survey of adults between the ages of 18 and 54 Footnote 27 found that 1 in 10 ex-partners have threatened to expose intimate photos of their ex on-line, and according to the survey, these threats have been carried out in 60% of the cases. With respect to young people, an online survey of 1,280 respondents (653 teens aged 13-19 and 627 young adults aged 20-26) in 2008 commissioned by the National Campaign to Prevent Teen and Unplanned Pregnancy found that 20% of teens and 33% of young adults had sent nude pictures of themselves via text or email (a practice referred to as \"sexting\"). Footnote 28 A 2012 study published in the American journal Archives of Pediatric and Adolescent Medicine that surveyed 948 high school students in Texas, also found that 28% of the respondents had engaged in sexting. Footnote 29 A third recent study of 606 high school students at a single private school, representing nearly the entire student body, found that nearly 20% sent a sexually explicit image of themselves, and that 25% indicated that they had forwarded such an image to others. Footnote 30
The Working Group has also received anecdotal reports that Canadian law enforcement receive complaints about the non consensual distribution of intimate images on a regular basis, but unless the intimate images qualify as child pornography, or are accompanied by additional aggravating features/conduct there is likely no criminal action that can be taken.
In cases where the intimate image depicts a person under the age of 18 engaged in explicit sexual activity or the dominant purpose of the recording is the depiction for a sexual purpose of that person's sexual organs or anal region, the image constitutes child pornography and is captured by the Criminal Code's child pornography provisions (section 163.1).
Although the child pornography provisions address the distribution of intimate images of children under the age of 18 years, some Working Group members believe that section 163.1 is too blunt an instrument to address the core behaviour at issue, especially in situations where the perpetrator is also under the age of 18.
The advantage of this approach to defining \"intimate image\" is that it is consistent with definitions of similar material in related offences. However, this approach also raises a difficult question regarding the issue of potential overlap between the proposed offence and the existing child pornography offences.
Child pornography includes visual representations of explicit sexual activity or a visual representation of which the dominant characteristic is the depiction, for a sexual purpose, of the sexual organs of persons under the age of 18. The definition of child pornography also includes written and audio materials. It is an offence under section 163.1 to, among other things, make, distribute, possess and make available child pornography.
In R.v.Sharpe, Footnote 35 the Supreme Court of Canada established a \"personal use\" exception to the child pornography provisions. This exception permits two youths who engage in lawful sexual activity, to consensually record their own lawful sexual activity as long as that recording is made or possessed for their own \"personal use.\" The material remains child pornography, but the youth can lawfully possess it for their personal use. Once that same material goes beyond their personal use (e.g.., one of the youth sends it to a friend) it is captured by the child pornography provisions.
The Working Group acknowledged that an intimate image, as proposed, would also constitute child pornography if the person depicted is under 18 years of age. This raises questions as to what options should be available to deal with an adult or young offender who may have distributed an intimate image of a person who is under the age of 18. Should the offender be charged with a child pornography offence Or should the police and/or Crown have the option of proceeding under the proposed new offence, which would be a less serious and less stigmatizing offence
Provincial and Territorial (PT) and Public Prosecution Service of Canada (PPSC) members of the Working Group and plenary indicated that currently, in these situations, police and prosecutors are sometimes reluctant to charge child pornography in cases involving images depicting persons under 18 years of age primarily because of the stigma that can attach to a charge of child pornography (for both the offender and victim). In their view the harm resulting from the distribution of intimate images (i.e., breach of privacy) is qualitatively different from the harm resulting from the distribution of child pornography (i.e., sexual exploitation of children).
Some members of the Working Group expressed the view that the child pornography provisions (especially when applied to cases involving older teens) were not designed to address this type of behaviour. The prevalence of this activity among young adults and youth has been fuelled by the growth in social media and it is becoming increasingly evident that these types of cases are being dealt with differently by police, Crown and the courts than \"typical child pornography cases.\" Footnote 36 There is a risk that if a judge feels that a case is more appropriately one of non-consensual distribution of intimate images but child pornography is charged, the result may be a judicial expansion of the Sharpe personal use exception to the child pornography provisions resulting in more of this type of behaviour being excluded from the child pornography offence. Footnote 37
Further, PT and PPSC members cautioned against creating a new offence that is too narrowly defined or \"watertight,\" especially with regard to the age of the person depicted in the image. In particular, there was concern that excluding images that constitute child pornography from the scope of the proposed offence could result in situations, where no prosecution for either offence is possible, or where a prosecution proceeds under one section but fails because a doubt was raised about whether the person depicted was over or under 18 at the time the image was created. Effectively, to proceed under a narrowly defined new offence, the Crown would be required to prove beyond a reasonable doubt that the person depicted was not under 18 when the image was created (i.e., that the image was not child pornography). In situations where the age of the person cannot be established, neither offence could be successfully prosecuted. Such a situation could arise, if the complainant cannot remember whether the image was created before or after he or she turned 18.
Failing to exclude child pornography from the proposed new offence could undermine the child pornography provisions in a number of ways. In the short term, such an approach could provide an opportunity or an incentive for accused to plead to the less serious new offence, particularly given that the offence of distribution of child pornography carries a mandatory minimum penalty. This could result in increased pressure on busy Crown prosecutors to accept pleas to the lesser offence even in cases where the more serious child pornography charges were warranted. The concern was raised that, over time, if cases involving older teens are being more often resolved by resorting to the proposed new offence, the broad scope of the child pornography offences may be questioned.
The Working Group agreed that the new offence should not weaken existing offences, particularly those that address child pornography. However, all the PT and PPSC members preferred an approach that would allow police and/or Crown prosecutors to exercise their discretion as to which charge to pursue depending on the facts and circumstances of the case.
The Working Group recommends that a Warrant of Seizure be enacted (similar to section 164.1 for child pornography and voyeuristic material) to permit a judge to order the removal of intimate images from Internet services hosted in Canada. Further, it is recommended that consideration be given to whether or not the warrant of seizure should apply to situations where prior consent was given to the original distribution of the intimate image, but consent was subsequently withdrawn.
The Criminal Code permits the court to order forfeiture (section 164.2) of things used in the commission of a child pornography offence (section 163.1), luring a child (section 172.1) or arranging a sexual offence against a child (section 172.2). The purpose of this power is to remove the tools used to commit any of these offences to prevent and deter an accused from perpetrating further criminal acts against a child. While it may be possible to use the Criminal Code provisions relating to seizure and forfeiture of offence-related property (sections 490 to 490.3), there was some discussion as to whether there was any benefit to creating a stand-alone forfeiture provision for the new offence.
The issue of spousal testimony generally and in particular in relation to child pornography offences is also currently actively under consideration by CCSO, and a report on these issues is before FPT Deputy Ministers. Footnote 40
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