D.P.P. v. J. McD. [2021] IECA 31, at paragraphs 73 to 80:

In saying this it could hardly be suggested that where photography or filming of the act of rape or sexual assault/defilement is a feature of a case that it could be anything other than an aggravating circumstance. Indeed, in each of the cases from our own jurisdiction that we have mentioned it is acknowledged as being an aggravating circumstance. However, we think it important to elaborate somewhat on how and why it is aggravating, because as we have mentioned there are degrees of aggravation and part of the function of a sentencing judge is to weigh the extent to which the intrinsic gravity of the offence charged is aggravated by the existence of such a circumstance.

We would suggest that a perpetrator photographing or filming an act of rape or sexual abuse/defilement is always a very serious aggravating factor and must be treated as such. There are two reasons for this. First, it is indicative of significantly increased culpability on the part of the offender. Secondly it adds to the harm done to the victim by the core offending conduct.

With respect to the factor of increased culpability, a peer reviewed paper based on research conducted in Norway in 2017 by the criminologists Sandberg and Ugelvik (“Why do offenders tape their crimes? Crime and Punishment in the age of the Selfie”, 57 British Journal of Criminology (5) 1023-40), and cited in Dr Brown’s book, identifies three socio-cultural trends, which are not mutually exclusive and often operate simultaneously, to explain why images are recorded as part of the commission of crime: firstly, to produce what they term as “amateur pornography” (although this label is controversial and has been objected to by other commentators on the basis that the language of “porn” risks eroticising the harms of image-based sexual abuse and may encourage salacious interest in and reporting of such cases); secondly, to further hurt and humiliate the victim, and thirdly, as an impulse to document extraordinary events. The research in question is based on an examination of 51 decisions of the Norwegian higher courts in which the offender had either taken a picture or recorded footage of the offences, as they were happening.

However, we would suggest that quite apart from those evidence-based findings which speak to possible motivations, such behaviour self-evidently involves deliberately and consciously subjecting the victim to a further layer or level of violation and is more culpable on that account alone regardless of the motivation. However, if there is clear evidence of an expressed motivation, or concerning the basis on which a motivation can be inferred, this may add to already aggravated culpability based on the mere fact of having gratuitously subjected the victim to a further layer or level of violation.

Clearly a circumstance such as the active staging of abuse for the camera, rather than the passive spontaneous recording of an event, is even more culpable. We find examples of that in the case of The People (Director of Public Prosecutions) v. P.K. dealt with by this court and previously referred to, and indeed in the English case of R v S [2015] EWCA Crim 2527 where an intoxicated sleeping victim was filmed by the perpetrator as he raped her and subjected her to other sexual indignities, including penetrating her vaginally and anally with various objects and foodstuffs. A further example is provided by the Scottish case of Ronald (Marc) v Her Majesty’s Advocate (unreported, High Court of Justiciary, 31 May 2018), where again the victim, who was unconscious through intoxication, was raped, sexually assaulted and urinated upon by the perpetrator who maintained a running commentary for the camera.

The use, if any, to which any recording, whether it involves still images or video, is put is also very relevant to culpability. Retention of the images by the perpetrator for his sole sexual self-gratification although very reprehensible, may be somewhat less aggravating than sharing the images with others or publishing them. The dissemination of photographs or videos of a sexual offence is, we suggest, a further form of sexual violation in and of itself.

Use of images for the intimidation or blackmailing or yet further humiliation of the victim is to be particularly deprecated and involves a high level of additional culpability.

There is no doubt that whenever a victim’s rape or sexual assault or abuse has been recorded in some form they are severely degraded by the process to a degree over and above the degradation and violation inherent in the basic crime. In assessing the degree of additional harm caused by the further violation involved in the recording of the crime, a court needs to be conscious of, and sensitive to, typical sequalae, some or all of which may be reflected in the victim’s impact statement or evidence. Synthesising extensive research findings in this area, Dr Brown in his excellent monograph, states (at p.46):

“Victims may also experience shame and humiliation; altered relationships with others; reputational damage; loss of employment prospects; victim blaming; withdrawal from social life; anxiety, paranoia, depression and low self-esteem [references provided]. While many of these sequelae are also evident in more conventional forms of sexual violence and abuse, it is important to recognize the unique harms that occur when technologies such as mobile phones and the Internet are used in the commission of sexual offences.

Victims of rape and sexual assault whose ordeals are filmed or photographed by their attackers have no control over the future dissemination of the footage or images. As the Internet readily enables re-posting, it may be impossible to retract an image once it is been distributed.”

A similar point to the observation concerning future dissemination and reposting in the passage just quoted, was made by the Appeal Court of the High Court of Justiciary in Scotland in the case of Her Majesty’s Advocate v C.H. [2017] HCJAC 82; 2017 SCCR 587, referencing, inter alia, the seminal Irish work on Sentencing Law and Practice, 3rd edn, by Mr Thomas O’Malley, and also some of the material we have cited earlier in this judgment. Lord Brodie, giving the judgment of the Appeal Court, stated:

“Such is the prevalence of use of mobile phones and such is the ease of making, retaining and transmitting (or ‘sharing’) still and moving images using their associated technology that it has become increasingly common for perpetrators of sexual offences or their associates to record the commission of an offence, or to take photographs of the victim, on a mobile phone (see eg T O’Malley, Sentencing Law and Practice (3rd edn.), paragraph 7-12); also S Sandberg and T Ugelvik, ‘Why Do Offenders Tape Their Crimes? Crime and Punishment in the Age of the Selfie’, 2017 British Journal of Criminology, Vol. 57, pp. 1023 – 1040). While so doing may have the result that perpetrators thereby document their offending and generate evidence which may incriminate them, as in the present case, the practice has what the Court of Appeal (Criminal Division) described in Attorney General’s Reference (Nos. 3, 73 and 75 of 2010), [2011] 2 Cr App R (S) 100 as ‘pernicious’ effects. O’Malley notes that a victim’s suffering is intensified by the knowledge that such a recording or image exists and that little can be done to control the use to which it may later be put or the extent to which it may be circulated and, as the Chief Justice (Judge) observed in Attorney General’s Reference (Nos. 3, 73 and 75 of 2010), retaining an image is:

‘a form of pressure to discourage any complaint … but also possibly for the purposes of blackmail … Anyone can understand what a powerful lever may be given to the criminal by his possession of photographs taken of the victim when, as in these cases, she has been subjected to degrading treatment.’ ”