Informing the definition of new criminal offences around intimate image abuse in the United Kingdom

Based on the Research of Professor Thomas Crofts

Professor Crofts’ comprehensive research into intimate image abuse at City University has explored the motivations for it; the range of forms it can take; the harms it causes; and the various legal and non-legal avenues of redress available and proposed in Hong Kong (HK), England and Wales (E&W) and Australia. Building on an earlier project (funded by the Australian Institute of Criminology, Criminology Research Grant) into the practice, prevalence and legal responses to youth sexting in various Australian jurisdictions, Prof Crofts turned his attention to adult intimate image abuse. Upon joining City University in 2019 he found that Hong Kong had no specific offences to address intimate image abuse and began a comparative study of how cases involving image based abuse could be, are being and should be dealt with both inside and outside the criminal justice system. In 2021 he was awarded General Research Funding by the Research Grants Council of HKSAR (CityU 11606621) to continue research on this project.

Professor Crofts has taken a critical and comparative approach to examining how offences can be optimally designed within the broader context of ongoing debate both in Hong Kong and E&W and Australia about how criminal law can most appropriately respond to the harms caused by intimate image abuse. His research exposed the breadth and variety of behaviours which could be classified as intimate image abuse, with different degrees of harm and culpability. A defining and unique principle underpinning all of Crofts’ work is the proposal that a coherent range of related offences is needed, scaffolded to reflect this spectrum of harm and culpability, to ensure adequate protection for victims while avoiding over-criminalisation. Informed by his research on consent in other sexual offences, Crofts concluded that the lack of consent lies at the core wrongfulness of intimate image abuse, and that getting the definition of consent right and consistent with other sexual offences is a key issue in designing intimate image abuse offences.

This body of research has made Crofts a leading expert in the varied forms and degrees of intimate abuse as well as the complex and nuanced factors to be considered in legislating against them. He has continued to develop his research in this field and has analysed and commented on the reform proposals of the Law Commission (E&W), supporting their approach while proposing refinements. In 2019 the UK Ministry of Justice asked the Law Commission (LC) to review the laws around intimate image abuse. The LC invited selected experts to contribute to the consultation framework, including Professor Crofts because of his ‘standing in the field and knowledge of his prior research on the criminalisation of so-called “revenge pornography”’. Crofts shared his expertise at a meeting in April 2020 and a Round Table in June 2020, highlighting the problems of taking too narrow a view of the level of harm that should be captured by a criminal regime and presenting his views on the relevance of culpability and intent.

The consultation document (February 2021) cited Professor Crofts’ contributions, ‘reflecting the breadth of his work in the areas the project was addressing’. He contributed to the consultation itself in person at a second round table in April 2021 and through a detailed written response which ‘most helpfully, included well- supported and carefully considered alternatives where we had identified potential concerns with provisional proposals’. His research expertise added value particularly in the way he ‘considered throughout his response ways of addressing concerns that some intimate image offences may risk overcriminalisation, a concern that underpins much discussion in this area’.

The LC’s report and recommendations (July 2022) cited Professor Crofts’ contributions and publications throughout, ‘reflecting the variety of recommendations his response impacted. This included: the definition of “intimate image”, the role of consent, the relevance of intent and recklessness, proof of harm, and the role of law in changing the culture and societal response to new and emerging behaviours’. Professor Crofts’ research expertise was cited particularly in relation to the need for a “tiered structure” of offences of increasing seriousness based mainly on intent. The Law Commission found his advice particularly helpful in responding to concerns expressed about such a structure during the consultation.

The Law Commission describe the impact of Professor Croft’s research thus: ‘Professor Crofts’ contribution to our project and research and analysis of a tiered approach to criminalisation in response to intimate image abuse has helped ensure that our recommendations were robust and well-informed. His work, with colleagues, on this ladder approach, was unique in this context. [….] Professor Crofts has been a critical resource for the Law Commission’s work throughout the Intimate Image Abuse project and we are grateful for his valuable contributions’.

In November 2022 the Government published an interim response to the report accepting the LC’s recommendations: ‘Your detailed analysis and research have provided the evidence needed by the Government to legislate in this area which will help in ensuring that victims of this type of harm are effectively protected by the law. […]’ The response promised to introduce a new package of criminal offences based on those recommended by the LC.

During a House of Commons debate on the Online Safety Bill on 5th December 2022 Dame Miller MP proposed new clauses defining offences based explicitly on those recommendations of the LC Report informed by Professor Crofts’ evidence. This support garnered from MPs across the political spectrum. The Bill began its passage through the House of Lords in April 2023, including the new amendments. The Act containing offences shaped by Crofts’ research received Royal Assent in 2023. These new offences now provide improved protections for victims of intimate image abuse.