Every year, Netsafe receives about 3500 reports of abuse under the Harmful Digital Communications Act. Photo / 123rf
WARNING: This story discusses details of sexual abuse and mental illness
By Anusha Bradley for RNZ
Out-of-date laws mean victims of image-based sexual abuse can't get help from ACC and must prove their abuser intended to cause them harm before police will prosecute.
Hazel* woke up and reached for her phone. There was a message from an old friend: "Hi, I don't want to alarm you. But I think this could be you," said the text.
She clicked on the link and stared at the screen in shock. Her friend had recognised Hazel in a video on Pornhub, one of the largest and most popular online pornography sites in the world.
"I was half asleep and I thought this could be some weird dream, but sure enough, it was me."
She immediately felt sick. Her skin burned, her heart raced, her ears rang.
In September 2019, Hazel, 26, had made a sex video with a man she'd been in a relationship with. She agreed to being filmed, but she never agreed he could share it online.
The recording had been on the pornographic site for 11 months before Hazel's friend spotted it. It had also been uploaded onto several other international porn sites. Altogether, it's now been viewed more than 35,000 times and the posts feature multiple degrading comments about Hazel and her exposed body.
"I just threw my phone down. I didn't want to look at it. I just started crying… I didn't know what to do."
Hazel is one of a growing number of victims of image-based sexual abuse. But even though 5 per cent of the population now say they've experienced such abuse, ACC doesn't help with the mental fallout, even though the organisation is supposed to cover victims of sexual abuse.
The posting of an intimate recording without consent is often referred to as "revenge porn", but it goes deeper than that - and happens more than you might think.
Every year, Netsafe receives about 3500 reports of abuse under the Harmful Digital Communications Act, of which about 550 relate to image-based sexual abuse. Between 85 and 90 per cent of victims are female.
Those statistics, however, are likely the tip of the iceberg, Netsafe chief executive Martin Cocker says. A 2019 study found 250,000 people (5 per cent of the population) had experienced image-based sexual abuse.
"But the number of people within that 5 per cent who have really harmful experiences? We don't know exactly," Cocker admits.
Even primary school-aged children have been victims, says sex therapist and pornography researcher Jo Robertson.
"Kids using parents' phones, or being given phones - I would say potentially too early - are taking photos of themselves and sharing [them]. It's more common amongst adolescents in the high school-age bracket, and then it's a really significant issue between the 18 to 25 cohort."
It's concerning because the harm caused by image-based sexual abuse is no less impacting than the harm caused by other forms of sexual violence, Robertson says.
Women's Refuge principal policy adviser Natalie Thorburn agrees. "Victims are left humiliated. Women feel ashamed, violated, and under attack, and are afraid that they will face judgment and stigma from their friends, families, and workplaces."
It's used as a form of punishment, but also as a form of control. "Partners have obtained these recordings as a way of ensuring victims can't leave them."
The term "revenge porn" minimises the severity of the crime, says Thorburn. "It likens it to pornography, which obscures the fact that it's non-consensual. Just like sexual offences perpetrated in person, we consider it a crime of sexual violence."
After discovering herself on Pornhub, Hazel spent the next few days in a surreal fog. She called in sick and hid in bed. She felt humiliated, ashamed and regretted making the video. "I felt so guilty, I felt shameful. You just blame yourself so much... like, why did I trust this person?"
She fretted about who else, other than her old friend, had seen the video. Scars and tattoos on her body made her easily identifiable.
"I went into a state of depression for a couple of months, with no appetite, sleep issues, no drive to get out of bed in the morning. I just really felt worthless and guilty."
A psychotherapist she saw to help her cope with the trauma told her she had all the symptoms of post-traumatic stress disorder (PTSD). Her doctor prescribed sleeping tablets and anti-anxiety medication and referred her to ACC's sensitive claims unit for mental injury caused by image-based sexual abuse.
The agency was quick to get in touch and paid for a couple of sessions with her psychotherapist while her claim was being processed. But soon after it delivered bad news. "I received a call from ACC basically saying, 'Hi. We're very sorry but you're not covered. We're happy for you to attend a couple more sessions while you get your ducks in a row'."
The caller, and later a formal letter declining her claim, explained her mental injury could not be covered by ACC because the law didn't allow it. It only covers crimes listed in schedule 3 of the ACC Act, which is taken from the Crimes Act 1961. This list only covers mental injury arising from sexual abuse that occurs "in person".
"I started crying on the phone. I was honestly shocked. I just felt invalidated. I felt unheard. I just couldn't believe it."
Hazel's response is typical of image-based sexual abuse victims, Robertson says. Victims suffer a unique form of betrayal and the impact can be similar to PTSD.
"They experience triggers, sometimes some deep anxiety, depression, sometimes suicidality, flashbacks. They are really intense feelings and reactions, really similar to if you've experienced a gunshot wound; because it's a wound, just in a different way."
The Crimes Act was drafted at a time when online sexual abuse didn't exist. This only adds to victims' trauma, Robertson says.
"One of the worst things about image-based sexual abuse is that it so often gets minimised. They feel just as harmed and violated, however, people tell them things like, 'Oh, at least it didn't happen in real life' or 'It's only online' or that people will forget about this. Nobody wants to feel like their deep, awful traumatic feelings are being belittled."
Between July 2018 and April this year, ACC denied 231 people cover for mental injuries relating to a sensitive claim because the abuse they suffered was not included in schedule 3 of the ACC Act.
ACC is one of several government agencies that added to Hazel's pain in her year-long struggle to get help and justice.
She immediately contacted Netsafe for help, only to be told she should contact the offender and ask him to "please remove the videos".
"If this were any other case of sexual abuse it would immediately be understood that this is not a safe or realistic option for victims," Hazel says.
Netsafe says it is not policy to ask victims to contact abusers and it's unsure why its staff gave Hazel this advice.
Hazel also went to police, who launched an investigation. After 10 months, police said it was unsure if charges could be pressed, so referred the case to its legal team, who referred the matter to Crown Law for a further opinion.
Frustrated with the slow police investigation, Hazel filed a civil court case to force the offender to take down all copies of the video from the internet. This was approved and the judge also ordered the offender to pay her legal costs within two weeks, but she's yet to receive a cent.
Hazel believes it's wrong that victims have to file their own civil court proceedings against their abusers.
Earlier this month, Crown Law told Hazel that before charges could be laid she would have to prove the perpetrator intended to cause her harm by uploading the intimate visual recording (as stated in schedule 22 of the Harmful Digital Communications Act 2015).
Perhaps it's no wonder that given the estimated scale of offending, prosecutions under the Harmful Digital Communications Act are rare. In 2020, 106 people were charged with 155 Harmful Digital Communications Act offences. Of the 70 per cent that were convicted, three-quarters were European males aged under 30, according to Ministry of Justice figures.
Parliament's justice select committee is currently considering changing the law to remove the need for victims to prove the offender intended to cause them harm before they can be charged.
That's good news for Hazel, who earlier this month told select committee MPs about her own experiences. Still, she realises any changes won't help her own case. "I still feel very frustrated by it all. I still feel that the person that has done this to me has faced no consequences at all."
Hazel hasn't given up completely, however. She has asked ACC to review its decision to decline her (and future victims) cover. Her lawyer, Charlotte Kerr, is at a loss to explain why the crimes in the Harmful Digital Communications Act 2015 are not included in the schedule of crimes listed in the Crimes Act, therefore making them ineligible for cover by ACC.
"The Acts haven't kept up with the digital age. Our client has suffered from the same harm or the same mental injury as someone who has been the victim of a crime that is listed on schedule 3.
"It's been incredibly distressing for her and incredibly harmful and yet there's an anomaly in the legislation that she can't access any ACC-funded therapy or other entitlements - say, weekly compensation for time off work - relating to that distress. So there's a real disparity between who gets cover and who doesn't."
Kerr wants Parliament to close the gap in the law, but believes there's also scope for ACC to cover Hazel's injuries within the current schedule. It would be up to the courts, however, to interpret the ACC Act.
"While it may be a rather novel argument, the argument would essentially be that dissemination of intimate video recordings without consent would mean that there was no informed consent to the sexual acts, and therefore there's been a sexual violation or an indecent assault committed. That obviously falls within the wording of schedule 3."
Even if the Harmful Digital Communications Act Amendment Bill goes through, it won't change the Crimes or ACC Acts, so victims of image-based sexual abuse still won't be able to get help from ACC.
Green Party ACC spokeswoman Jan Logie says that's not good enough. "So much of our lives are now online, and increasingly so for the younger generation. We need to make sure that our legislation and provision of services recognises that reality."
National Party ACC spokesman Simon Watts agrees, saying a review is needed to ensure ACC's policies are "fit for purpose".
"What we're really seeing is the impact of digital and technology in this space and the potential need for legislation to reflect the reality of some of these challenges that we face today that were not the case 10 or 20 years ago."
Lawmakers may need to review the Harmful Digital Communications, ACC and Crimes acts to ensure people get the help they need, but the ACC minister already has the power to direct ACC to cover certain situations, says Logie.
ACC Minister Carmel Sepuloni, however, says a ministerial directive is off the table. "You've got to think about fairness across the ACC system. As soon as you start to talk about expanding the ACC system to include one thing, then you've actually got to look at a range of things that people would have brought to ACC ministers and ACC previously."
Does she think mental injury from image-based sexual abuse should be covered by ACC in principle?
"Look, I'm not going to commit ACC to that at this stage. No real consideration has been given to this and it would be premature for me to make a comment."
Nor does Sepuloni think the issue should be tackled by the Harmful Digital Communications Amendment Bill before the justice select committee.
"I think we'd all agree that intimate recordings without consent is a serious issue and people that are affected by these posts should be supported.
"Significant changes to the Crimes Act or the way that ACC covers mental injuries are not the kind of thing that we will attempt to do during select committee for a bill that didn't really incorporate any of that to begin with. It really is out of scope."
Would she consider amending the Crimes or ACC Acts?
"This is not something that's been put on the work plan, but I think it is potentially a space to watch moving forward."
In the meantime, Hazel is taking a day at time. Some are harder than others.
"Dealing with all these government organisations that are supposed to be in place to help you is actually almost harder than the initial incident itself due to the invalidation and lack of knowledge. And the fact that there is no support there for people that have suffered from image-based sexual abuse."
All she wants is for a government agency to recognise her suffering and help her.
"Instead, it's just been passed around, bounced around from one person to another and not really getting anywhere at all."
The police investigation is still open and Hazel hopes ACC will review her case at a hearing next month. She keeps reminding herself that she's doing all this for others as well as herself.
"I have a fulltime job, I'm pretty able and I'm quite competent. I'm not in a situation with domestic violence where things are being threatened against me, or used against me. So in that respect, I'm quite lucky.
"However, I am completely aware that there are many women out there who are not so lucky. They do rely on their partners, they are in domestic violence relationships, and are being threatened daily with this content.
"I really want to do this and get the help from ACC, to kind of pave the way for people, for women in the future, who may not be as financially able as me."
*Not her real name
Where to get help:
• 0800 543 354 (0800 LIFELINE) or free text 4357 (HELP) (available 24/7)
• https://www.lifeline.org.nz/services/suicide-crisis-helpline
• YOUTHLINE: 0800 376 633
• NEED TO TALK? Free call or text 1737 (available 24/7)
• KIDSLINE: 0800 543 754 (available 24/7)
• WHATSUP: 0800 942 8787 (1pm to 11pm)
• DEPRESSION HELPLINE: 0800 111 757 or TEXT 4202
• NATIONAL ANXIETY 24 HR HELPLINE: 0800 269 4389If it is an emergency and you feel like you or someone else is at risk, call 111.
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