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Beyond ‘scandals’ and the public testimonies of victim-survivors, surprisingly little is known about the nature and extent of the harms of ‘image-based sexual abuse’, a term that includes all non-consensual taking and/or sharing of nude or sexual images. Accordingly, this article examines the findings from the first cross-national qualitative study on this issue, drawing on interviews with 75 victim-survivors of image-based sexual abuse in the UK, Australia and New Zealand. We adopt a feminist phenomenological approach that permits more nuanced and holistic understandings of victim-survivors’ experiences, moving beyond medicalised, trauma-based accounts of harm. Our analysis develops five interconnected accounts of the harms experienced, that we have termed social rupture, constancy, existential threat, isolation and constrained liberty. Our findings shed new light on the nature and significance of the harms of image-based sexual abuse that emphasises the need for more comprehensive and effective responses to these abuses.

This article investigates the nature and scope of image-based sexual abuse (IBSA) material on 77 high-volume online websites. On the majority of these sites, users appeared to be motivated by sexual gratification and proving masculinity to a sexually deviant peer network, rather than revenge against the person depicted in the image. We argue that nonconsensual image exchanges are contextualized within ever-expanding digital environments, characterized by dislocation of time and space, overvisualization, and hypersexuality. We argue that IBSA is a vehicle for the construction, performativity, and negotiation of hypermasculinity and heteronormativity, within the bounds and structures of existing gendered power relations.

Technology-Facilitated violence and abuse is a truly global problem. As the diverse perspectives and experiences featured in this book have shown, the deep entanglement between technologies, inequality, marginalization, abuse, and violence require multi-faceted and collaborative responses that exist within and beyond the law. When this chapter was written, society was (and continues to be) facing an unprecedented challenge in COVID-19 – a global pandemic. At the same time, a renewed focus on racist police and civilian violence has occurred following the killings of George Floyd, Ahmaud Arbery, and Breonna Taylor in the United States. As we describe in this chapter, these two major moments are ongoing reminders of the profound social inequalities within our global communities, which are grounded in systemically discriminatory oppressions and their intersections. This chapter draws together some thoughts on Technology-Facilitated violence and abuse in an era of COVID-19 and antiracist protest. It explores these within the context of the book as a whole, highlighting the importance for improved understanding of, and responses to, Technology-Facilitated violence and abuse as part of a broader push for social justice.

Despite apparent political concern and action – often fuelled by high-profile cases and campaigns – legislative and institutional responses to image-based sexual abuse in the UK have been ad hoc, piecemeal and inconsistent. In practice, victim-survivors are being consistently failed: by the law, by the police and criminal justice system, by traditional and social media, website operators, and by their employers, universities and schools. Drawing on data from the first multi-jurisdictional study of the nature and harms of, and legal/policy responses to, image-based sexual abuse, this article argues for a new joined-up approach that supports victim-survivors of image-based sexual abuse to ‘reclaim control’. It argues for a comprehensive, multi-layered, multi-institutional and multi-agency response, led by a government- and industry-funded online or e-safety organisation, which not only recognises the diversity of victim-survivor experiences and the intersection of image-based sexual abuse with other forms of sexual and gender-based violence and discrimination, but which also enables victim-survivors to reclaim control within and beyond the criminal justice system.Despite apparent political concern and action – often fuelled by high-profile cases and campaigns – legislative and institutional responses to image-based sexual abuse in the UK have been ad hoc, piecemeal and inconsistent. In practice, victim-survivors are being consistently failed: by the law, by the police and criminal justice system, by traditional and social media, website operators, and by their employers, universities and schools. Drawing on data from the first multi-jurisdictional study of the nature and harms of, and legal/policy responses to, image-based sexual abuse, this article argues for a new joined-up approach that supports victim-survivors of image-based sexual abuse to ‘reclaim control’. It argues for a comprehensive, multi-layered, multi-institutional and multi-agency response, led by a government- and industry-funded online or e-safety organisation, which not only recognises the diversity of victim-survivor experiences and the intersection of image-based sexual abuse with other forms of sexual and gender-based violence and discrimination, but which also enables victim-survivors to reclaim control within and beyond the criminal justice system.

Digital technologies are increasingly being used as tools for the perpetration of domestic violence. Little empirical research to date has explored the nature and impacts of technology-facilitated domestic violence (TFDV), and even less attention has been paid to the experiences of immigrant and refugee women. This article examines the nature and impacts of TFDV as experienced by immigrant and refugee women. Drawing on interviews with 29 victim-survivors and 20 stakeholders, we argue that although immigrant and refugee women may experience TFDV in similar ways to non-immigrant and refugee women, they face unique challenges, such as language barriers, cultural bias from support services, lack of financial resources, lack of trust in state institutions, and additional challenges with justice and migration systems. Immigrant and refugee women also face multiple structural layers of oppression and social inequality. Accordingly, we argue that a multifaceted approach is required to address TFDV that includes culturally sensitive and specific law reform, education, and training.

There is an emergent body of research that considers the benefits of introducing legal representation for victims of crime throughout their criminal justice journey. In this chapter, we consider victims’ views on whether they desire legal or advisory representation in the criminal justice process, with a specific focus on plea negotiations. The chapter commences with an exploration of the context surrounding representation or advisory support for victims, before examining victim perspectives on this reform proposal.

Providing information about plea negotiations, both as a general practice and in relation to a victim’s specific case, is a very basic form of engagement with victims of crime. Research has identified a clear distinction between a victim being informed of, or told about, a decision, and being genuinely consulted about that decision. This chapter discusses victims’ perspectives on the provision of information and consultation with them about plea negotiations. It begins by outlining the context and relevant legal provisions pertaining to informing and consulting with victims about plea negotiations, before exploring victim perspectives on the provision of information and consultation in relation to plea negotiations.

Victims do not have the power to make determinant decisions in the criminal justice process. Once the police take carriage of the case, victims are often relegated the status of prosecutorial witness, with little input or participation in the decision-making processes that surround their case. There are no adversarial systems that permit victims a right to veto a prosecutor’s decision. In this chapter, we explore whether victims want the right to veto a plea negotiation. We begin by briefly discussing the context behind this idea, before exploring victim perspectives on the power to veto.

In Australia, judges are not directly involved in plea negotiations and generally have no power to review prosecution decisions regarding the nature or number of offences that the prosecution decides to proceed with. This chapter explores the notion of judicial involvement in plea negotiations. It begins by discussing the context and relevant legal provisions pertaining to judicial involvement in plea negotiations, before exploring victim perspectives on this victim-focused reform.

Unlike the cynicism and accountability concerns applied to the use of discretion by police and judicial officers, prosecutorial discretion in plea-negotiations operates essentially free from external scrutiny or transparency. Globally, there is a scarcity of data and research on plea-negotiations, meaning we do not have the capacity to accurately measure their frequency, the contexts in which agreements are reached or to identify patterns in the types of offenders/offences most commonly involved. Additionally, in almost all Australian jurisdictions, plea-negotiations are not recognised as a legitimate legal process in statute, despite empirical evidence from the legal community suggesting their overtly encouraged and common use. Drawing from research in which 51 Victorian prosecutors were observed engaging in plea-negotiation practices over several months, and 54 interviews were conducted with prosecutors, defence counsel, judicial officers and policy advisors, this article intends to reignite discussions of the nontransparency of plea-negotiations in Australia, including highlighting the need for increased criminological research in this underexamined field. The article contends that all Australian jurisdictions should define plea-negotiations in legislation and record data on how often plea-negotiations occur, similarly to the current process of recording guilty pleas. Without such reform, plea-negotiations will remain nontransparent and misunderstood, as there will be no adequate mechanism to understand or examine how negotiations operate in practice or what their true impacts might be.

Plea negotiations and sentencing are inextricably linked. While it is argued that sentencing is not a feature of Australian negotiations, this study found that discussions on sentencing are in fact a key component of negotiations. This chapter examines connections between various sentencing regimes, policies and negotiations. In particular, it examines the effect of mandatory and presumptive sentencing on plea negotiations; the use of sentence indications to encourage defendants to plead guilty (as an extension of the negotiation process); the role sentencing plays in discussions, including the effect of the High Court’s decision in Barbaro; and the requirement in Victoria that courts must state the sentence they would have imposed but for a guilty plea, as part of a transparent sentence discount process.

The criminal justice system aspires to be open, transparent and accountable to the public. Indeed, the courts and the key organisations involved in the criminal justice system in Victoria—including Victoria Police, Victoria Legal Aid and the Office of Public Prosecutions—all recognise that transparency, integrity and accountability are key goals. Accordingly, it might be asked how these values fit with a system that so frequently embraces plea negotiations. This chapter discusses this question and considers how public confidence in the criminal justice system can be developed and maintained. This includes proposing two recommendations for ways to improve understandings of plea negotiations.

Plea negotiations have a long history. However, modern forms of negotiation take place in an ideologically different context with an increasing emphasis on economy and efficiency. Changes in the way governments fund legal services are occurring in many jurisdictions with significant implications for procedural and substantive justice, including a dramatic increase in unrepresented defendants and defendants presenting with some degree of mental impairment (and associated high levels of alcohol and drug use). This chapter examines the prevalence and implications of resourcing constraints in the context of plea negotiations, with a specific focus on unrepresented defendants and defendants presenting with mental health concerns.

Discussions of plea negotiations have generally focused on three main forms: charge bargaining (withdrawing and/or substituting charges), fact bargaining (agreements as to which “facts” form the basis of the summary from which the defendant is sentenced) and sentence bargaining (discussions on the prosecutor’s sentencing submission and agreements as to when the defendant indicated an intention to plead guilty). However this study identified 14 different forms of plea negotiation. This chapter discusses these forms of plea negotiation showcasing the diversity and extent of outcomes possible from plea negotiations. In doing so, it demonstrates the breadth and variety of outcomes that can emerge from a defendant agreeing to waive their right to a trial and enter a guilty plea.

The negotiation process can be long and sometimes difficult. Although it is conducted in the shadow of the trial, away from public view, this study found there is a framework of informal rules and procedures known primarily to those within the legal community that to some extent regulates their involvement. This chapter examines in close detail how the negotiation process operates, including who is involved, when, how and in relation to what matters. This includes a discussion of the key factors considered by parties when engaging in negotiations, the various factors shaping negotiations, the role of police charging practices in negotiations, differences between negotiations in summary and indictable jurisdictions and the effects of limited resources and legal culture on negotiations.

There are almost as many definitions as there are terms to describe plea negotiations. This chapter examines the language that has been used to describe negotiated guilty pleas in order to highlight the diversity of victims, perpetrators, outcomes and consequences associated with plea negotiations and the need to adopt an appropriate definition that can adequately reflect this. It also identifies the four most common forms of plea negotiation present in the data collected in the study informing the book, including the withdrawal and substitution of charges, amendments to the agreed summary of facts, rolling up or creating representative counts and agreements on the sentencing submissions made to the court.

Advances in technology have transformed and expanded the ways in which sexual violence can be perpetrated. One new manifestation of such violence is the non-consensual creation and/or distribution of private sexual images: what we conceptualise as ‘image-based sexual abuse’. This article delineates the scope of this new concept and identifies the individual and collective harms it engenders. We argue that the individual harms of physical and mental illness, together with the loss of dignity, privacy and sexual autonomy, combine to constitute a form of cultural harm that impacts directly on individuals, as well as on society as a whole. While recognising the limits of law, we conclude by considering the options for redress and the role of law, seeking to justify the deployment of the expressive and coercive powers of criminal and civil law as a means of encouraging cultural change.

Since the 1980s, laws regulating the meaning and interpretation of sexual consent have been substantially reformed across Australian and international jurisdictions. Of particular note in an Australian context are the significant changes to the definition of consent introduced in Victoria in 2006 and 2007, which were informed primarily by the Victorian Law Reform Commission’s review of legislative provisions relating to sexual offences. In this article, we explore the persistence of traditional rape discourses in the courtroom following the 2007 Victorian reforms by examining meanings of ‘sex’ and ‘consent’ in a pilot sample of rape trials. Our analysis suggests that although deeply entrenched societal myths or discourses about rape continue to pervade Victorian courtrooms, there is some evidence of a shift towards a legal focus on the accused’s state of mind, in addition to that of the victim-complainant. This shift, however, is only prominent in cases in which the accused testifies. In light of these pr...

Judges' directions to juries in rape cases should perform an educative function by clarifying the law and establishing appropriate standards for sexual relations guided by sexual autonomy, communication and respect. Since the 1990s, rules governing jury directions have been substantially reformed in Victoria. While these reforms were designed to minimise outdated perceptions of rape and ensure consistency and clarity in their delivery, the complex nature of rape law has instead led to a set of convoluted and confusing jury directions. Not only has this placed unreasonable expectations on jurors to understand the meaning of consent and the fault element of this offence, but the high number of appeals and overturned convictions resulting from judicial misdirection indicates that the law is not achieving its primary goals. This article examines the jury directions on consent in Victoria and some of the key problems that have ensued. We argue that the confusion within the law has led to equally confusing jury directions, and this serves to compromise and undermine the purpose and achievements of rape law reform over the past two decades.

Within law, the desired outcome is purportedly obtaining justice. Yet on a global scale, the law has consistently failed in providing justice, empowerment, status or control to sexual violence victims, while simultaneously failing to adequately consider the complexities and individuality of sexual violence experiences. A key problem for the law in responding to these failings has historically been the dominant cultural, political and social narratives around what constitutes ‘real rape’, what is consent and who fits into the normative sexual victim and offender labels. However, as the capacity for conventional legal processes to achieve or provide ‘justice’ in cases of sexual violence has been increasingly critiqued, and attention has shifted towards better integration of victims’ needs in legal proceedings, these same failings have facilitated opportunities for the interruption of the recognisable narratives of rape, justice and the lived, versus stereotyped, experiences of women. In response, we have witnessed a range of initiatives — official and unofficial; within and beyond the criminal law — explored and implemented, with the aim of providing alternative forms of justice for sexual violence victims.

Justice for victim-survivors of sexual violence is marred by a series of intersecting paradoxes, predicaments and contradictions. On the one hand, sexual violence is commonly understood as a ‘trauma’ under increasingly medicalised and individualised psychological frameworks (see Gavey & Schmidt, 2011). Rape is often rendered incomprehensible and taboo to others; seen as the ‘worst of crimes’, ‘an assault on the soul’ (Sharratt & Kaschak, 2013) or ‘the ultimate violation’ (Rowland, 1985). Yet on the other hand, victim-blaming cultural attitudes, stereotypes and myths continue to normalise sexual violence and trivialise victim experiences (Heenan & Murray, 2006), particularly when the perpetrator is a person known to the victim and/or when the victim is in an intoxicated state (Lynch et al., 2013; Richardson & Campbell, 1982). Indeed, cultural, structural, institutional and social values about sexual violence have been identified as part of a phenomenon which is commonly yet controversially referred to as ‘rape culture’, defined as ‘a complex set of beliefs that encourage male sexual aggression and supports violence against women’ (Buchwald et al., 2005, p. xi; see also Brownmiller, 1975; Horvarth & Brown, 2009). Arguably an outcome of these prevailing forces — between the pathological trauma of rape and the minimisation and trivialisation of rape — is to contribute to the construction of a ‘spoiled identity’ (Gavey & Schmidt, 2011, p. 451) and a reinforcement of stranger rape as the prototype of ‘real rape’ (Estrich, 1987; Williams, 1984) — both a form of misrecognition and representational injustice (Fraser, 1998).

Since 2013, restrictions on the provision of legal aid and changes to social, legal and welfare services have significantly increased demand for legal services in Australia, while simultaneously increasing the extent of unmet legal need. In this climate of austerity, a robust debate over the allocation of resources is taking place with questions regarding the priorities that should be accorded to government-funded serious criminal cases, to criminal representation in the lower courts, and to serious civil and family law matters. This has raised some important questions for practitioners, recipients of legal aid, courts, academics and providers of legal aid funding and services: namely, who deserves legal aid? Should legal aid seek to provide more people with fewer services or should it spend more money assisting fewer vulnerable clients? Who are the core clients of legal aid services? And in the context of finite funding and expanding demands, on what criteria are priorities decided, and who decides those criteria? Note: These questions were the focus of a Monash University workshop organised by Dr Asher Flynn (Criminology, School of Social Sciences), Emeritus Professor Arie Freiberg (Faculty of Law), Professor Jude McCulloch (Criminology, School of Social Sciences) and Associate Professor Bronwyn Naylor (Faculty of Law) in July 2014. The workshop examined the implications of recent restrictions and changes to legal aid funding and services in Victoria. The workshop was part of a larger research project funded by the Monash Warwick Alliance, which involved an initial workshop in March 2014, held at the University of Warwick campus in England, organised by Ms Natalie Byrom (Centre for Human Rights in Practice, Law), Associate Professor James Harrison (Centre for Human Rights in Practice, Law) and Professor Jackie Hodgson (Centre for Criminal Justice, Law).

Review(s) of: A second chance for justice: The prosecutions of Gabe Watson for the death of Tina Thomas, by Asher Flynn and Kate Fitz-Gibbon, Cambridge Scholars Publishing, 2013, ISBN 10: 1-4438-4202-8 ISBN 13: 978-1-4438-4202-0.

The polarisation between consistency, controls and the unscrutinised discretionary powers held by criminal justice agencies is a complex issue that transcends jurisdictions. In the Australian State of Victoria, this conflict is particularly evident in the prosecutor’s decision-making powers in the plea bargaining process, because these powers are not subject to scrutiny and the decisions made under them are not transparent. Furthermore, plea bargaining itself is a non-formalised and unscrutinised method of case resolution. While the use of discretion is an important component of prosecutorial work, it is the potentially individualised and idiosyncratic nature of unscrutinised discretionary decisions that results in plea bargaining and prosecutorial decision-making in Victoria giving rise to perceptions of inappropriateness and misconduct. Drawing upon the voices of Victorian and United Kingdom legal professionals, this article critically analyses the controls placed on United Kingdom prosecutors by the Attorney General’s Guidelines on the Acceptance of Pleas and the Prosecutor’s Role in the Sentencing Exercise 2009 (UK), and considers whether similar guidelines could be implemented in Victoria to redress problems surrounding the idiosyncratic nature of prosecutorial decision-making in plea bargaining. By offering a unique insight into the perspectives of those involved in plea bargaining, this article explores the benefits of implementing a transparent and scrutinised control on prosecutorial discretion in plea bargaining, and considers whether this would in turn offer greater safeguards, consistency and transparency of prosecutorial decision-making in Victoria.