Sunday Times 2
Sextortion: A new name, an age old crime
23 year old Madhavi first started working at the Ministry straight out of University. Her Manager was a kindly mentor who found Madhavi to be a confident and enthusiastic young worker. One month after she joined, she was called into his office. “I was scared, I thought I had done something wrong” she says, as the door closed behind her. “He told me that I was doing well, that I had a bright future ahead and that he wanted to offer me a promotion.” But it came with a condition – that she perform a sexual act. “He said that it was the only way I could secure a better position. I was young and inexperienced. I didn’t know who to tell because he was my boss and I was scared.”
Sri Lanka does not have specific laws targeting sextortion. Reuters
What happened to Madhavi is not an unusual occurrence. Unfortunately, such appear commonplace in Sri Lanka as evidenced by a 2019 survey done by Transparency International Sri Lanka (TISL) which noted that as many as 60% of respondents reported that ‘public officials implied, openly or suggestively, at least once or twice, that they would grant a benefit in return for a sexual favour’. The report further notes that 46% of respondents reported that sextortion happened occasionally, often or frequently, with the highest percentage (62%) reported from the estate sector. Such occurrences are not limited to Sri Lanka; today, it is discussed as a global issue in many countries and organisations such as the UNODC, International Association of Women Judges (IAWJ), the Global Judicial Integrity Network, and the European Women Lawyers Association are also continuing this conversation.
Sextortion also has a strong cyber dimension, and includes sexual exploitation and sexual blackmail where sexual information or images are used to extort sexual favours from the victim, and is facilitated by technology. Sexual blackmail on electronic media can affect anyone online from curious teenagers, youngsters, adolescents, youth to mature internet surfers who aren’t as vigilant or tech savvy. Most recently, children and teenagers have become the target of sextortion scams through online gaming.
An article published earlier this month in the New York Times noted that online chat forums and multiplayer games allowed predators to build friendships, posing as youngsters themselves and share stories of hardship or self-loathing and later “groom” their young victims in the ironic safety of the childrens’ homes whilst gaming online. Children go into the virtual world thinking they are playing Clash of Clans or Xbox Live alongside other youngsters but unknowingly become victims and producers of pornographic material with most young people consenting to and unwittingly becoming victims of child abuse. Therefore, these perpetrators, who are predators, camouflage themselves almost anywhere: online, in dating apps, online video games, email scams, and in your most intimate relationships, both personal and professional. This is one form of sextortion.
‘Sextortion’ is also understood as a form of corruption in which sex, rather than money, is the currency of the bribe – and this is perhaps as old as civilization itself. However, because of the way society, administration and judiciary are structured, this has for far too long remained unidentified as a problem, and therefore, not recognized as a crime. In fact, this pattern is seen across almost all crimes against women — feminist movements across generations have tirelessly worked to make society and the law identify actions such as stalking, obscenity, outraging modesty, marital rape, domestic violence etc. for what they are — crimes. Several jurisdictions around the world, even to this day, do not generally identify these crimes in their criminal law despite the serious impact on health and livelihood of women, which limits the full exercise of their autonomy and equality under the law and equal protection under the law, despite such guarantees in our collective Constitutions.
In the 1990s, several branches of the International Association of Women Judges (IAWJ) received information of the wide spread occurrence of a phenomenon where bribery was taking place with a sexual component. This phenomenon was labelled ‘Sextortion’ and defined by the IAWJ as ‘The abuse of power to obtain a sexual benefit or advantage’. However, Sri Lanka continues to lag behind a number of other countries in acknowledging and addressing sextortion as a crime separate to sexual abuse or harassment, and is usually referred to in different ways such as ‘sexual bribery’, ‘sexual corruption’ or merely as sexual harassment. Therefore, this article is a response to the article titled ‘Sexual Bribery’ published in The Sunday Observe on December 1, which in fact refers to ‘Sextortion’ – a global phenomenon that is now being recognized and identified as being independent of other sexual and corruption offences.
Sextortion is a form of corruption in which sex, rather than money, is the currency of the bribe. Therefore, sextortion has both a sexual component and a corruption component. Sextortion involves a request to engage in some form of sexual activity, which can range from sexual intercourse or even physical touch that is unwanted. Unlike other crimes against women, sextortion is based on severe power imbalance, not limited to the deep-rooted gender power imbalance alone.
The perpetrator is in a position of authority over the victim and abuses that authority to psychologically coerce the victim into advancing sexual favours. Let us take a few classic examples of sextortion — a teacher extorting a sexual favor in return for good grades, a senior official coercing an employee to submit to a physical relationship to avoid getting fired, and something that is now documented — humanitarian workers demanding sexual bribes in return for aid in conflict areas. In fact, many of the revelations emanating from the ‘Me Too’ movement fit perfectly within the definition of sextortion. The fact that it took decades for women to come out with their experiences, shows the very real fear that women live with when the perpetrators are in positions of authority / power. Even when they do decide to speak up, women face multiple barriers in accessing justice.
For one, the law itself may be a barrier: as a sexual offence, it may not recognize the psychological coercion behind sextortion as vitiating consent. Further, if the woman was a willing participant, then as a form of corruption, she may be deemed complicit in engaging in the corrupt activity. Even when the law does recognize that a vast power differential can create its own forms of psychological coercion, the shame, stigma and victim blaming that follow often deter victims from complaining; and in the case of sextortion, this is exacerbated by the fear that the perpetrator might use his position of power to destroy the victim’s and her family’s future. Even in the context of ‘Me Too’, the anonymity that the internet provides and the steady support that the movement had gained, played a large role in many people coming out with their stories. However, how many of these outings on the internet have resulted in cases before a court of law?
With regard to the second component, to commit sextortion, there must also be corruption i.e. it would involve an abuse of power entrusted to them for personal benefit by the perpetrator by demanding and/or accepting a sexual favour in exchange for a benefit that he or she is empowered to withhold or confer (“quid pro quo” meaning “this for that”), relying on coercive pressure (facilitated by the imbalance of power between the perpetrator and the victim) rather than physical violence. The abuse of entrusted power can take many forms. It can manifest in a judge agreeing to grant asylum to a refugee in exchange of a sexual favour, a government official agreeing to issue a visa in exchange for sexual intercourse, a police officer agreeing to not charge a driver in exchange for oral sex, or even a supervisor agreeing to grant a promotion to an employee in exchange for a sexual relationship.
The lack of definition or elaboration on sextortion as a crime is one of the most fundamental challenges in identifying and tackling it. Though the act of sextortion itself is historically ancient, it is only just being identified as an act that is independent of other sexual and corruption offences due to the manner in which society and administration is structured. Its identification as an offence has also emanated from the judiciary itself. For instance, in India, the court on its own motion ruled on a case where a private person was detained for sexually exploiting economically vulnerable women whilst promising them employment (Court on its Motion v. State of Jammu and Kashmir & Another, CMP No. 31/2012). In this case, the High Court noted that sextortion ‘lies at the intersection of sex and extortion under the overarching ambit of corruption’ and noted that sextortion is an ‘institutionalised system of blatant abuse of power’. Based on this decision, the state amended the existing penal laws and passed the Jammu and Kashmir Criminal Laws (Sexual Offences) (Amendment) Act, 2018.
Unlike in the state of Jammu & Kashmir in India, Sri Lanka does not have specific laws targeting sextortion: while institutions may carry their own codes of conduct and policies on sexual harassment, there is no legislation that refers specifically to sextortion nor has a comprehensive legal definition been encapsulated in the domestic law. Nevertheless, it may be prosecuted under Section 345 of the Penal Code of Sri Lanka which could be used to address sexual harassment and Section 372 which deals with extortion and the Section 483, with criminal intimidation. In addition, it can also be prosecuted under Sections 14 to 16 of the Bribery Act (No. 2 of 1965) which refers to ‘gratification’ (which could be argued to include a sexual component) with regard to public officers with protection for witnesses and bars on interference of a witness afforded under Section 73 of the Bribery (Amendment) Act, No. 9 of 1980. However, it must be noted that the Bribery Act applies only to state officials, and as such, allegations and investigations of sextortion that takes place outside the public sector cannot be brought within this law. Furthermore, there is case law in Sri Lanka where the demand for sexual favours in consideration of job promotion was interpreted as a ‘bribe’ (Republic of Sri Lanka v. Abdul Rashak Kuthubdeen). However, there is no consistency in the prosecution of sextortion cases because no crime of sextortion exists, and it is usually prosecuted under a different offence and under different laws: some are prosecuted as child pornography cases while others are prosecuted as hacking cases, extortions or stalking. There are several other challenges that are faced by survivors of sextortion which are related to legal procedure as well.
The rule of law needs to be discussed not merely in its substantive essence but also with attention to its procedural importance. In sexual crimes such as rape and other sexual offences, the lawful procedure requires adopting a sensitive approach from the very outset of the investigation, which must then continue throughout the investigation, the prosecution in court, and societal aftermath afterwards. The exclusive power of the law is reflective of its role as the heart of a nation, and thus, has a primary responsibility towards maintaining the sustainable good health of the nation which, in turn, affects the prosperity, economic and social growth, autonomy and empowerment of the people where individuals and the country reach their full potential.
Therefore, the mechanism to report incidents of sextortion is also of importance. While it can be reported in the manner a usual charge of bribery, corruption or extortion is reported, such mechanisms do not account for, or address the dimension of gender, nor ensure privacy of the victim. However, the above-mentioned study by TISL noted that even when tackling corruption in the public sector, there still remains very low spontaneous awareness of official channels to report incidents, and a low degree of certainty that action would be taken. These issues would only be exacerbated when tackling an incident of sextortion, given the nature of the crime. The process of investigation and prosecution is also handicapped because, at the stage of investigation, an allegation of sextortion would face the same pitfalls as faced by other gender-based offences, where privacy of the complainant is not ensured, and at the stage of prosecuting, many lawyers do not make the necessary application to court to facilitate an in-camera hearing even though it is provided for in the law.
It is essential that such issues are addressed as early as possible in order to prevent the escalation of minor incidents. This ties into the ‘broken window’ theory where James Q. Wilson and George Kelling argued that when minor offences are addressed, major offences can be prevented. This theory argues that expeditious and effective implementation of all existing laws, regardless of whether they address major or minor offences, ensures the maintenance of the rule of law. Therefore, the law and law enforcement authorities need to effectively address even incidents of eve teasing, which can later escalate to unchecked sexual harassment and sextortion.
(Sandani Abeywardena, Purnima Pilapitiya and Harithriya Kumarage assisted me with research, interviews and study for this article).