Viewing consent through a digital lens

In 2023, over 500,000 sexually explicit images or videos of real people were created using a computer algorithm, commonly known as “deepfake pornography,” and later  shared online. These deepfakes involve modifying or using the faces or bodies of real individuals to generate the explicit content. In the United States, the number of deepfakes is doubling every six months.

This type of online sexually exploitative and harmful behavior is called online sexual exploitation and abuse (OSEA), and includes other forms such as online grooming, live streaming of sexual abuse, child sexual abuse material (CSAM), online sexual coercion and extortion, online sex trafficking, and image-based sexual abuse (IBSA).

Women and girls are particularly vulnerable to OSEA and technological advancements have made it easier to groom, recruit, and sexually exploit with impunity because many platforms offer anonymity and operate under very limited regulations.

While some sexually explicit images or videos can be recorded or shared from person to person with consent, IBSA, commonly but inappropriately known as “revenge pornography,” refers to the distribution or dissemination of these images or videos without consent.

As we navigate how to apply regulations to digital sexual harassment and abuse, it is essential that we understand how and when consent is given and at which time that consent ends – as all forms of digital sexual abuse violate victims’ consent, autonomy, and privacy. Victims of OSEA face an increased risk of stalking, domestic abuse, loss of employment, damaged reputation, and emotional trauma.

What is Consent in Digital Spaces?

Consent in digital spaces is defined as the explicit agreement to participate in activities involving digital content. This includes the sharing, creation, and distribution of images, videos, and other forms of digital media. Consent must be informed, voluntary, and revocable, meaning that an individual has the right to change their mind and withdraw their consent at any time.

Definitions of consent under the law also need to recognize a broad range of coercive circumstances where consent cannot be voluntary, genuine, or willing and where the victim is incapable of giving consent which include but are not limited to: an imbalance of power and authority dynamics/dependency, threats, psychological force, emotional coercion or manipulation and not having the capacity to consent. It must be noted that any threat or act to create and share another’s sexual material  in person or online without consent is sexual violence or OSEA.

Where Do We See Consent in Image-Based Sexual Abuse?

IBSA is a violation of consent through threats or acts of unauthorized creation, use and dissemination of sexual images. It includes actions such as:

• Non-consensual Sharing of Intimate Images: When intimate images or videos are shared without the consent of the person depicted, including “revenge porn,” where an ex-partner shares sexual images to embarrass or harm, can create abuse of consensual acts resulting in victim blaming and causing doubts about the ownership and consensual sharing of personal images.
• Abuse of Consensual Acts: Even if the original act of creating the image was consensual, sharing it without permission constitutes a breach of consent.
• AI-Generated or Manipulated Pornography: These involve creating explicit content using artificial intelligence to superimpose someone’s face onto another body without their consent. This material is commonly referred to as “deepfake porn”. While some deepfakes are not sexually explicit, as of 2023, over 98% of deepfakes on the internet were pornographic.
• Dissemination Without Consent: Any act of distributing intimate content without the consent of the person depicted is a clear violation of their autonomy and privacy.
• Child sexual abuse material (CSAM):  refers to any sexually explicit material that depicts a minor, including both real and deepfake images.

The Impacts of Image-Based Sexual Abuse

The impact of IBSA on victims can be profound and multifaceted, including:

• Victim Blaming and Misogyny: Victims often face blame for the existence of the images, being told they should not have created them in the first place. This perpetuates misogynistic views that place responsibility on the victim rather than the perpetrator.
• Effects on Primary & Secondary School Aged Students: Young people, particularly in primary and secondary  schools, are increasingly vulnerable to IBSA. The non-consensual sharing of intimate images among peers can lead to severe emotional and psychological distress.
• Violation of Sexual Freedom and Self-Expression: Everyone should have the right to express their sexuality freely without fear of their images being used against them. The violation of this right through IBSA stifles personal freedom and autonomy.

All digital sexual abuse can cause significant trauma despite not being physical, or in the case of deepfakes not being an authentic image. The potential impact of trauma on the victim’s emotional and psychological state is real and it is crucial to respond with empathy, sensitivity, and respect.

Possible Solutions to Image-Based Sexual Abuse

To combat IBSA, several measures can be taken:

• Legislation and Policy Changes: Policies such as the Global Digital Compact (GDC) and Title IX in the United States can play crucial roles.

  • The GDC aims to ensure a safe digital environment for all within a universal digital rights framework, Equality Now and The Alliance for Universal Digital Rights (AUDRi) are calling for this framework to be rooted in human rights law and underpinned by an intersectional feminist, anti-discrimination analysis.
  • Title IX provides protections against sexual harassment including in digital spaces within educational institutions within Title IX. Guidance should be issued to define digital sexual abuse, delineate the parameters when it is and is not covered by Title IX, and provide clear direction on how schools can effectively handle cases of digital sexual abuse including support mechanisms for victims, investigation procedures, research and referrals, and prevention strategies.

• Criminalization of Non-Consensual Sharing: Laws that criminalize the sharing of intimate images without consent are essential. These laws should also include threats to share. Such laws deter potential offenders and provide legal recourse for victims.
  Example: Senate Bill 412 in the United States
  Senate Bill 412, introduced in the 118th Congress, aims to address the non-consensual distribution of intimate images. The bill proposes to:

  • Criminalize the distribution of intimate images without consent at the federal level, providing a clear legal framework to prosecute offenders.
  • Mandate significant penalties for those found guilty, which serves as a deterrent.
  • Include provisions for victim restitution, helping those affected to recover financially and emotionally.

This legislation underscores the importance of protecting individuals’ digital consent and provides a robust legal mechanism to combat IBSA effectively.

• Education and Awareness: Increasing awareness about the importance of digital consent and the impact of IBSA can help prevent additional violations. Educational programs in schools can teach young people about respectful online behavior and the consequences of violating digital consent.
• Trauma-informed approach: all available resources and programs must foster a supportive and nonjudgmental environment where the victim feels heard, believed, and empowered to make decisions about their own recovery and pursuit of justice.

  • Prioritize the individual’s well-being, safety, and autonomy throughout the reporting and justice process.
  • Present a variety of options for seeking healing, support, and justice
  • The victim  should be fully informed of who and how many individuals must view the evidence in their case as well as the available options for pursuing justice and seeking support.
  • A trauma-informed justice administrator should also ensure that the victim has access to comprehensive support services, such as counseling, advocacy, and legal assistance, and should consider the victim’s preferences and needs.

Where do we go from here?

In a recent letter on digital sexual abuse, Equality Now joined  The Sexual Violence Prevention Association in commending the inclusion of nonconsensual artificial intelligence (AI) explicit materials in the discussion of online sexual abuse in the preamble of the 2024 Title IX rule within the United States which defines “Online harassment [to] include… the nonconsensual distribution of intimate images (including authentic images and images that have been altered or generated by artificial intelligence (AI) technologies)” and broadens the scope of Title IX protections and marks a positive step forward in combating the practice.

Image-based sexual abuse is a severe violation of consent that can have lasting impacts on victims. Understanding and respecting digital consent, alongside robust legal protections and educational initiatives, are crucial steps toward preventing IBSA and supporting victims. For more information on consent-based laws a