Malawi: Criminal Law Responses to Non-Consensual Distribution of Intimate Images

This is the second in a series of guest blog posts focussing on a joint project between RebLaw Scotland and the Gender and Justice Unit (GJU) in Malawi.

Background

The Gender and Justice Unit and RebLaw Scotland (#GJURebels) are undertaking a collaborative project exploring issues of law and gender in Scotland and Malawi. The first area of focus is non-consensual distribution of intimate images (NCII) - sometimes referred to colloquially as ‘revenge porn.’

NCII and the criminal law in Malawi

In this post, we highlight some relevant and largely criminal provisions that can be used to respond to incidences of NCII in Malawi.

The supreme law of the country, the Constitution of the Republic of Malawi (1994) protects NCII-related rights to privacy, equality and non-discrimination, dignity and the rights of women. In the past fifteen years a body of gender-related legislation has been enacted to further entrench these rights. Nevertheless, there are no provisions specific to NCII.

The Gender Equality Act (GEA) prohibits sexual discrimination and harmful practices (S4-S5 of the Gender Equality Act 49 of 2012). We would argue that NCII qualifies as both sexual discrimination and a harmful practice as defined by the law. Amongst other harms, female victims of NCII in Malawi often experience 'slut-shaming' after the release of their images (criticism and showing disapproval of a woman for any form of sexual behaviour); they are also the victims of actual or threats of physical violence. They often lose their jobs, have their home addresses exposed, and even drop out of school. The events take a toll on their mental and physical health.

Although proceedings under these provisions have yet to materialise, we believe that the protective provisions of the GEA can be used to respond to NCII. Under the GEA each of the NCII related offences carries a fine of one million Malawian Kwacha (approximately US$1,330) or five years imprisonment.

Sexual harassment, defined as "unwanted verbal or physical conduct of a sexual nature in circumstances in which a reasonable person, would be offended, humiliated or intimidated," (S6 of Act 49 of 2012), is also criminalized under the GEA.

The Prevention of Domestic Violence Act (Act 5 of 2006) was enacted to eliminate GBV that arises within the context of a domestic relationship. The law defines a “domestic relationship” as one between a husband and wife, a parent and a child, people who share a child together, or those in an intimate relationship that has exceeded one year. Under this law domestic violence is a criminal offence that arises out of physical, sexual, emotional or psychological, social, economic, or financial abuse committed by persons in a domestic relationship. This is relevant since a significant number of NCII incidences occur at the hands of intimate partners. Furthermore, NCII impacts victims psychologically and socially and damages their intimate relationships, educational and employment opportunities, and, perhaps most importantly, their mental health. Victims of domestic violence can apply for a protection order against their perpetrators. The presiding judicial officer has significant leeway in framing the content and the implications of the protection order - presumably, these could include protections from further cyber violence.

The Electronic Transactions and Cyber Security Act of 2016, which creates various cyber-crimes, ought to be most relevant and applicable legislation in combatting NCII. Although the Act does not address NCII directly, it does cover data protection, and criminalises child pornography, cyber harassment, offensive communication, and breach of privacy. NCII readily qualifies as cyber harassment, offensive communication, and invasion of privacy. These are offences that carry a fine of one million Malawian Kwacha or twelve months imprisonment. Victims are directed to lodge cyber-crimes complaints with the regulatory body - the Malawi Communications Regulatory Authority (MACRA). In practice, MACRA redirects NCII victims to the Malawi Police Services where they have been enhancing the capacity of the Service to manage cyber-crimes. Unfortunately, institutions (like the police) that are mandated to prevent or respond to GBV are often perceived as ineffective. This is exacerbated by the division of labour in the police – GBV is handled by specialised Victim Support Units – these are manned by officers that [might] have been trained to respond to violence but not necessarily cyber-violence.

There are also protections under the Penal Code (which was enacted in 1930 as amended to Act No. 8 of 1999) that could be used to prosecute NCII.

For example, the offence of “insulting the modesty of a woman” (S137) stipulates that “whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture or exhibits any object intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman or intrudes upon the privacy of such woman, shall be guilty of a misdemeanour and shall be liable to imprisonment for one year.”

There are also provisions criminalising “obscene matters or things” (S179) which includes making, producing or having in one’s possession any one or more obscene pictures, photographs, photographic negatives or prints, cinematograph films, or any other obscene objects tending to corrupt morals. The law also makes provision for the destruction of any matter or thing made, possessed or used for the purpose of such offence. Prosecution for an offence under this provision can only be instituted with the written consent of the Director of Public Prosecution.

There are interesting challenges raised by the penal code options. The provision that criminalises “insulting the modesty of a woman” is vague and overly broad, open to subjective interpretation and gives no instruction to the public, law enforcement officials or the judiciary regarding the prohibited behaviour. Obscenity and insult both rely upon the interpretation of morality; and, in both instances the victim of NCII could just as easily be charged alongside the perpetrator.

Conclusion

This post has given an overview of existing criminal offences that could be used to prosecute NCII. Advances in ICT have created new avenues for violence and violation of privacy; NCII is an extremely gendered example of that. In Malawi we have a plethora of criminal provisions that could ostensibly be used to respond to NCII - but these laws have not translated into tangible protections for victims or punishments for perpetrators of these vicious (and indelible) harms.

~ Sarai Chisla-Tempelhoff (Gender and Justice Unit, Malawi)

Read more about the joint project between GJU and RebLaw here: https://www.uofgschooloflaw.com/blog/2019/7/17/gjurebels-scotland-and-malawi-team-up-for-non-consensual-image-based-abuse-research