When Do Depictions of Sex Constitute Assault?


In June, a story of “girl power”-style revenge made the rounds on social media. Reportedly, a woman sent unsolicited penis pictures she had received to the sender’s mother, despite his protestations. Meanwhile, an ongoing debate in Britain about what—if any—depictions of sex should be banned has resurrected the age-old question: Does pornography cause rape?

Both stories raise interesting questions about the limits of privacy and consent.

Most of us agree that when adults voluntarily share generic photos of themselves with friends who consent to viewing them, this is no matter for censorship or state intervention. There is, however, less agreement on how much autonomy we should have when those images involve nudity or are explicitly sexual. Some jurisdictions ban “hard-core” or “extreme” pornography, while others place limits on the “obscene.”

Part of the problem is that we do not have a homogenous view of what constitutes pornography or obscenity in the first place. The difficulty in stating clearly what we believe is immoral or wrong was memorably captured by U.S. Supreme Court Justice Potter Stewart in 1964, when he stated that constitutional protections of free speech clearly did not protect “hard-core pornography,” a concept he couldn’t define, though he was certain he would “know it when I see it.”

It was also recently highlighted by a successful grassroots campaign to push Facebook to implement better guidelines on what content the social networking site should take down. The campaigners argued Facebook wrongly identified breastfeeding mothers as “obscene,” while leaving up photos and speech they felt advocated violence against women. Facebook argued it routinely removed hate speech, while leaving up humorous, though offensive, content.

And the difficulty is at the core of the current debate in Britain about a 2008 act that prohibits the possession of “extreme pornography,” defined to include images produced for the purposes of sexual arousal of acts that, if real, would likely cause serious injury to a person’s anus, breasts, or genitals.

Last summer, this act was put to the test in a case against a London mayoral aide who was charged with possessing images of a sado-masochistic nature. The images depicted friends and acquaintances of the aide, who, the prosecution does not contest, had consented to the pictures being taken and shared. The aide was ultimately acquitted after a very public trial, but lost his job. Those who advocate for maintaining and expanding the prohibition of “extreme pornography” argue that such images, in themselves, are a form of assault, and that they cause more violence by trivializing abuse.

It is important to note that a causal link between pornography and violence has not been proven. A 1991 study of criminal data in four European countries concluded that incidences of rape had not increased more than nonsexual violent crimes as pornography had become more easily available. This was confirmed in a 2009 study, which concluded that evidence for a causal relationship between exposure to pornography and sexual aggression is slim and may have been exaggerated.

So the real question is whether pornography (or sexual imagery) in and of itself constitutes assault. And this depends on consent and affects privacy. Rape apologies aside, there is no longer confusion (at least in the law) that anyone forced to carry out a sexual act, on or off camera, is a victim of assault. In other words, pornography constitutes assault when it depicts individuals who have not consented to have sex, let alone to having it filmed.

Pornographic images also constitute a form of assault when they are thrust on people who have not consented to seeing them. This is the case with unsolicited penis pictures, and is the reason those forwarding such pictures to the sender’s family and friends (or the public in general) argue that thrusting them on others is par for the course.

To be sure, claiming privacy rights over penis pictures you have imposed on someone who did not want to see them is like suing for libel when publicized security camera footage shows you robbing a bank. Then again, there is something slightly off about forwarding photos you did not want to see on others who likewise have not consented to viewing them. In such cases, a more ethical (though much less immediately satisfying) course of action would be filing a complaint for aggravated harassment.

But not all pornographic images are wrong. Photos that have been taken and shared with the full consent of everyone involved, including the recipients, should not be banned, but rather benefit from privacy and free speech protections—because such images are not assault, but sex. And surely we would be hard-pressed to think of anything more private than that.

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