Legal Beagle by Graeme Edgeler

5

A draft submission on the Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill

For once, I have written my submission on a bill with enough time to spare to both enocurage any of you who wants to make a submission to do so as well, and to give you time to spot the typos in mine.

Louisa Wall's Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill was pulled from the biscuit tim a little while back, and got through to the Justice Committee. It's a relatively simple bill designed to make some prosecutions for so-called "revenge porn" easier. An excellent bill of the ype that fits well into the members' bill process.

My draft submission is below

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The Justice Committee

Harmful Digital Communications (Unauthorised
Posting of Intimate Visual Recording) Amendment Bill

Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a practice revolving around the criminal law.

I thank the committee for the opportunity to make a written submission on Harmful Digital Communications (Unauthorised Posting of Intimate Visual Recording) Amendment Bill, and look forward to appearing in person to supplement it.

I support the intention of the Bill, but offer some short comments that the committee might like to consider, as well as a small suggestion around some of the wording used.

New Offence Around Non-Consensual Posting of Intimate Visual Recordings

Non-consensual posting of intimate visual recordings is already illegal, but prosecution can be complicated by the requirement to prove harm, defined as “serious emotional distress” in the Harmful Digital Communications Act. This can mean that some people may avoid conviction for posting “revenge porn” because their victim, while negatively affected by the publication, isn’t affected in quite the right way for the requirement of serious emotional distress to be proved.

The intention of the bill is essentially to take the offence of causing harm by posting digital communication, and where that offence involves the posting of an intimate visual recording, assume that harm of a type the criminal law seeks to prevent is present.

I support this approach. Non-consensual posting of intimate visual recordings is harmful. It is a serious harm of the type society properly uses the criminal law to discourage. This harm is present even when the type of harm currently proscribed by the offence in section 22 of the Harmful Digital Communications Act cannot be proved beyond a reasonable doubt.

This law change will make prosecuting “revenge porn” easier. It should reduce some of the additional stress the Court process can impose upon victims, as intensely personal questions around the affect the posting has had on them will become less relevant, and potentially, there may be more guilty pleas as one avenue of avoiding conviction – seeking to establish reasonable doubt about the harm element of the current offence – will be removed.

Maximum Penalty

The bill has a second aim, albeit one which is not mentioned in the explanatory note: it increases the maximum penalty for the offence from two years to three years.

I will start by making it clear that I am not saying that the increase in the penalty is wrong. For the most serious types of this offence, three years’ imprisonment may well be an appropriate maximum penalty.

I am instead raising the following as something that the Committee may wish to think about, and seek further input from departmental advisers.
There is a general principle of law-making that when Parliament sets the maximum penalty for an offence, it is prescribing the sentence that should be applied to the most serious forms of that offence. For example, aggravated robbery covers a range of offending, all serious, but with a clear range from less serious to more serious. At the least serious end, any robbery committed by two or more people is an aggravated robbery, but at the most serious end, so too is robbery committed with a loaded firearm.

This approach – setting the maximum penalty as the appropriate penalty for the most serious offending of the kind to be prosecuted under the offence – is recognised in section 8(c) of the Sentencing Act, and was considered in the Law Commission’s 2013 Study Paper Maximum Penalties for Criminal Offences (NZLC SP21), which I would recommend to the Committee if it wishes to consider this further.

When Parliament passed the Harmful Digital Communications Act it criminalised non-consensual posting of intimate visual recordings. It did this through the section 22 offence of causing harm by posting a digital communication.

That offence does not only deal with the posting of “revenge porn” but covers a range of different offending. It is likely that Parliament considered non-consensual posting of intimate visual recordings to be the most serious type of causing harm by posting a digital communication. At that time, Parliament thought two years was the appropriate maximum.

Parliament knew what a serious invasion of privacy non-consensual posting of intimate visual recordings was at the time it set the two-year maximum. I suspect its view hasn’t changed. It remains as serious as it always was, with this law change primarily about making it easier to prosecute slightly less-serious forms of “revenge porn” (ie those where serious emotional distress cannot be proved).

I recommend that the Committee consider what the appropriate maximum penalty should be for this offence. I have no particular opinion on what it should be, but I recognise that there is some benefit in having a coherent approach to maximum sentences, as the Law Commission’s Study Paper addressed.

I anticipate that two years was chosen in 2015 in part because the pre-existing intimate visual recording offences in sections 216I and 216J of the Crimes Act carry three-year maximums, while dealing with more serious invasions of privacy (they cover situations where not only is the publication non-consensual, but the recording was non-consensual as well).

Overall, both two years and three years seem defensible, but I offer this as something to think about.

Proposed Changes to the Legislative Language

New section 22A(3) gives the sentencing Court the power to make what would be civil orders in the course of a sentencing. This appears sensible, and is in line with a few similar provisions in respect of other offences. Two issues arise: one substantive, and one around the drafting.

This is still a criminal proceeding, it would be appropriate to limit the orders available to the Courts to those in section 19(1)(a)-(c). In reality, a judge may be unlikely to make an order under 19(1)(d)-(f) in the Course of the sentencing, but I submit that the orders in paragraphs (d)-(f) are inappropriate in criminal proceedings, and the law should recognise this.

In terms of wording, subsection (3) refers to “any penalty being imposed on a person under subsection (2)…”. Subsection (2) sets the maximum penalty, but a Court does not impose a sentence or penalty under it. Rather sentencing takes place under the Sentencing Act. As drafted, there is a technical risk that a court may consider its powers limited where the penalty imposed is not one prescribed by subsection (2), for example, a sentence of home detention, or a community order.

It would also be appropriate for orders to be able to be made even where a penalty is not imposed at all, for example, because a discharge, or an order to come up for sentence if called upon is the result.

To better achieve the aims of subsection (3), I would invite the Committee to consider adopting wording closer to that in sections 216L and 216M of the Crimes Act, which deal with similar post-conviction orders around intimate visual recordings. The Committee may also like to consider whether the power ought to be able to be exercised in respect of other Harmful Digital Communications Act prosecutions under section 22.

Conclusion

I thank the committee for the opportunity of presenting a submission. I welcome the bill as an improvement over the current law, fixing an issue that will arise is a small number of prosecutions for offending Parliament intended to criminalise a few years back.

I support the passage of the Bill, while recommending that the Committee:

  •  Amend new section 22A(3) to remove the possibility of inappropriate civil orders being made in a criminal prosecution, and fixing the empowering provision to better accord with the intent behind it.
  • Consider what the appropriate maximum sentence should be for this offence.

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