Judicial Constructions of Harm in Australian Image-Based Sexual Abuse Case Law: A Feminist Discourse Analysis

Abstract

Despite almost every Australian state and territory criminalizing image-based sexual abuse (IBSA), which includes the non-consensual taking, creating, or sharing of intimate images, judicial discourse in this context remains underexplored. In this article, using feminist critical discourse analysis, we investigate how Australian courts conceptualize the harms of IBSA in 47 criminal and civil cases. We find that while the serious harms suffered by individual victim-survivors are widely recognized, judicial discourse on societal harms is limited, with little to no recognition of IBSA as a form of gender-based violence (GBV) in and of itself. This is significant for several reasons, including the overrepresentation of women victim-survivors and male perpetrators in our dataset, and the gender and other inequalities that often underpin IBSA. We argue that by adopting an inclusive gender-based approach, the courts can promote more nuanced, relational, and holistic understandings of the individual and societal harms of IBSA, knowledge of which is important for addressing this rapidly growing form of GBV in Australia and internationally.