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Calls for law change to make proving harm from image-based sexual abuse easier

A victim advocate is calling for a change to New Zealand's cyber crime laws, saying it's too difficult to prove harm from revenge porn.

Around 300,000 Kiwis have had intimate content shared without their permission, but the number of cases which end up in court is significantly less.

In 2015 the Harmful Digital Communications Act made cyber abuse a crime and since then just 196 people have been convicted. Men are the main offenders, making up 87.8 percent of convictions.

But the Ministry of Justice only has figures for all cyber crime offences, meaning convictions only relating to revenge porn - or 'image-based sexual abuse' - is much lower.  

'Tania' had an intimate image of her emailed to her lawyer by an ex-partner, with a threat.

"The message was pretty clear, that he wanted me to do what he wanted, which was comply basically to his rules or he would send more images of me," she told Newshub.

She was going through the family court and had successfully taken out a protection order against her ex-partner.

But when she reported the email to police, she was told it wasn't a breach.

"You're just rejected by the police. And they say to you 'we care about family violence', but the reality is I don't believe that's true," Tania says.

After pleading with officers, her ex-partner was eventually charged and sentenced, but not under the Harmful Digital Communications Act. This is something Tania says even the judge disagreed with.

"He said to him that you're really lucky the police haven't done a great job because you should be going to prison now."

With no cyber crime conviction, Tania then launched a civil case by going to Netsafe

While people can go to police, Netsafe is the main agency for dealing with harmful communication complaints.

If mediation and attempts to have websites remove the content fail, people are referred to the district court.

It's a lengthy process, which victim advocate Ruth Money says shouldn't be led by Netsafe.

"Are those people trained, particularly trained for domestic violence, for sexual assault, or are they triggering the survivor by getting them to report or re-report," Money says.

When victims finally reach a courtroom, the Act requires them to prove "serious emotional distress".

It's a threshold Women's Refuge chief executive Ang Jury says is too high and too subjective.

"What may be serious to me may be 'meh' to somebody who's never even thought about these things or experienced anything."

She says judges need more training to assess harm, as more victims are penalised for keeping it together in court.

"She didn't actually want to fall apart and act like a sad person in court, and that particular judge decided that clearly she wasn't emotionally distressed," Jury says.

Lawyer and Netsafe chairperson Rick Shera says the threshold is high to balance crime and free speech, and emotional harm is hard for a judge to measure because there's not much precedent.

"At the moment we are, in a sense, flying a little bit blind as to where this benchmark is set," Shera says.

But there's evidence victims can gather to help their case.

"Not being able to go to work, getting physical symptoms of distress - headaches and rashes and things like that - or any reports from a psychologist or psychiatrist," he says.

What the law can't fix, Netsafe hopes technology can.

Facebook has already developed a tool to upload an image you want banned from its website. It's currently rolling out around the world, but it isn't in New Zealand yet.

While Kiwis wait for the technology, the Harmful Digital Communications Act is also being reviewed. But it was deferred to focus on other work, and then further delayed by COVID-19. 

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