Many feminist tort law scholars argue that its rights-based paradigm is blind to the distinctive harms that women suffer in contexts such as sexual harassment or the effects of pornography.145
Revenge porn typically targets women,146 so a legal scheme that is blind to women’s distinctive
concerns will inevitably fail to adequately respond to them.147 West contends that the
subordinate position of women in society renders them vulnerable to ‘physical, emotional and psychic trauma,’ of a type not usually recognised by tort law. 148 Godden asserts that the gender
bias of tort doctrine is well-known.149 Conaghan observes that because harm is a socially
constructed concept, unless a particular harm is recognised as such by society and by law, it is not necessarily experienced as harm even by victims themselves.150 Her theory can explain
why many women endure sexual harassment for years without complaint: the social and legal failure to recognise the injury entailed has led women simply to repress their feelings of violation and the sense that a wrong has been perpetrated.151 Only certain kinds of tangible
injuries, which are relatively easy to prove, can be actionable in tort. These may include bodily injury, physical or psychological illness and sometimes emotional pain and suffering, but the
144 See Chapter 1.4.
145 Joanne Conaghan, ‘Gendered Harms and the Law of Tort: Remedying (Sexual) Harassment’ (1996) 16(3)
Oxford Journal of Legal Studies 407,408.
146 See, for example, Josh Halliday, ‘Revenge Porn: 175 Cases Reported to Police in Six Months,’ The
Guardian (11 October 2015) < https://www.theguardian.com/uk-news/2015/oct/11/revenge-porn-175-cases- reported-to-police-in-six-month> reveals that the majority of cases reported involved explicit pictures of women shared without permission by their male ex-partners; similarly, figures from the UK’s Revenge Porn Helpline show that 75% of 1800 calls over six months were from women: Government Equalities Office Press Release, ‘Hundreds of Victim-Survivors of Revenge Porn Seek Support from Helpline’ (20 August 2015)
< https://www.gov.uk/government/news/hundreds-of-victims-of-revenge-porn-seek-support-from-helpline> both accessed 15 January 2019.
147 Chamallas and Wriggens (n 141).
148 Robin West, Caring for Justice (New York University Press, New York, 1997) 98.
149 Nikki Godden, ‘Tort Claims for Rape: More Trials, Fewer Retributions?’ in Janice Richardson and Erika
Rackley (eds) Feminist Perspectives on Tort Law (Routledge, Oxon, 2012) 163.
150 Conaghan (n 145) 429. 151 West (n 148) 98.
legally recognised versions of such harms can be quite divorced from survivors’ subjective experience.152
Adjin-Tettey traces such discriminatory tort doctrines back to historical gender stereotypes according to which men are associated with reason and rationality, which are highly valued, whereas women are associated with emotion and irrationality, which are devalued. 153 She
argues that damages in tort law are based on rationality rather than emotions and thus privilege tangible over intangible harms. It follows that pecuniary losses are deemed more appropriately compensable than non-pecuniary damages.154 Adjin-Tettey submits that long-term harms
resulting from sexual victimisation may often be psychological, ‘affecting self-esteem, feelings of safety, ability to focus and obtain education [and] difficulties maintaining employment and interpersonal relationships.’155 Many women who have been violated through revenge porn dissemination are likely to suffer such long-term, largely incommensurable losses. Because these losses are almost impossible to quantify, they may be sidelined when calculating compensation.156 Adjin-Tettey observes that traditional tort scholars have sometimes
questioned whether intangible losses should be compensable on the basis of an empirically unsupported assumption that the ephemeral harms associated with intangible losses may diminish over time, unlike the enduring nature of pecuniary losses.157 For revenge porn victims
suffering the sustained threat of repeated humiliation and victimisation following each new disclosure of their images, however, the resulting harms may never diminish.
Although tort theorists remain divided regarding the availability of punitive damages in tort, as the discussion in the previous section has highlighted, Adjun-Tettey submits that the difficulty in calculating damages for non-tangible harms has been partly offset by the increasing availability of punitive damages in cases where there is demonstrable evidence of intentional violation of personal autonomy, or bodily integrity and security.158 This, she argues,
152 Elizabeth Adjin-Tettey, ‘Sexual Wrongdoing: Do the Remedies Reflect the Wrong’ in Janice Richardson and
Erika Rackley (eds) Feminist Perspectives on Tort Law (Routledge, Oxon, 2012) 190.
153 Ibid, 190-91. 154 Ibid. 155 Ibid, 181. 156 Ibid, 184. 157 Ibid, 184. 158 Ibid, 193.
has done much to better redress sexual victimisation, demonstrating the value of punitive damage availability from a feminist perspective.
A further challenge for tort law, as Birks discerns, is that tort law does not require evidence of harm in the moral sense of damage or injury, but rather evidence that a protected interest of the victim has been infringed.159 Tort law, therefore, does not track harm per se, or the intrinsic
badness of intentional wrongs. It affirms, instead, that a legal wrong is the breach of a legal duty and the infringement of a legal right, and not a response to the moral quality of the conduct. This would suggest, then, that tort law cannot, in principle, provide full vindication for the rights’ infringement of these victims who might still require that the moral wrongfulness and intrinsic badness of revenge porn conduct to be acknowledged. An additional legal response to revenge porn, which addresses the moral reprehensibility of the conduct, its social harmfulness, and the culpability of defendants who disseminate it, is therefore required.