Understanding the crime of sextortion

Understanding the crime of sextortion

By Vincent Semenuk

Sextortion is a form of blackmail. It often starts with what seems to be an innocent conversation between two people. As they grow more comfortable, one person may suggest that they trade intimate images. Or maybe they will invite the other person to expose themselves or engage in a sexual act over a livestream, which is being recorded without their knowledge.

Once that happens, one party then demands that the other send money or more revealing and explicit photos. If they refuse, they are told the images or video already exchanged will be shared with the victim’s friends, family or employer.

Young people are often targeted in sextortion schemes since they are more willing to share photos of themselves. In Calgary, police said they received nearly 50 reports of sextortion attempts in the first five months of 2022, mostly targeting teenage boys. Investigators believe most cases stem from Instagram or Snapchat, where the scammer poses as a young woman and sends private messages to potential victims. The males respond, sending revealing images that are later used to blackmail them.

Sextortion is illegal in Canada

In 2014, in response to high-profile sextortion cases that led to the suicides of two female teens, the federal government brought in the Protecting Canadians from Online Crime Act. The Criminal Code was amended to include s. 162.1, which makes it a crime to distribute, publish, sell or advertise intimate images of someone without their consent. You can also be convicted if you were “reckless” about determining if the person shown gave their consent to have their picture shared online.

What is an intimate image?

An intimate image is any photo, film or video recording where a person is naked or is exposing their genital, anal area or breasts. It also includes images of them engaged in explicit sexual activity. In addition, the image or footage must have been taken in circumstances where the person had a reasonable expectation of privacy, meaning that they did not know it would be circulated to others.

Sextortion can land you in jail

If police investigate you for sextortion and you are convicted of sharing an intimate image of someone else without their permission, you may end up with a criminal record. If the Crown treats the charge as an indictable offence the maximum penalty is five years in prison, with lesser sentences given if it is prosecuted as a summary conviction. In all cases, it is highly advisable to seek the advice of an experienced criminal lawyer when facing this charge.

What are my defences for sharing an intimate image?

The defence against any criminal charge always depends on the circumstances. One defence can be found in s. 162.3 of the Code, where it states that a person cannot be convicted of this crime “if the conduct that forms the subject-matter of the charge serves the public good and does not extend beyond what serves the public good.” That is a difficult defence to mount since there is little case law in this area.

If you accidentally or inadvertently shared someone’s photo, I could argue that you did not have the criminal intent that is necessary for the Crown to win a conviction.

In some cases, police have been known to violate the rights granted under the Canadian Charter of Rights and Freedoms when investigating those accused of a crime. Section 8 of the Charter guarantees that we all have a right to be free from unreasonable search and seizure. If that sort of violation has occurred, I will ask the court to exclude any evidence police gathered during that illegal activity.

Sextortion charges are expected to increase

According to Cybertip.ca, there has been a 150 per cent increase in sextortion of youths between December 2021 and May 2022. The national agency receives 57 reports of the crime each month. It notes that in most cases boys are extorted for money and girls are extorted for more images. It adds that 77 per cent of sextortion incidents start on Instagram or Snapchat.

Contact Dunn & Associates for advice

If you are facing a charge related to sextortion, the experienced criminal defence team at Dunn & Associates can help. We will go over the evidence the Crown has assembled and look for gaps or inconsistencies as we work to obtain the best outcome possible with your charge.