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Ending Impunity for Sextortion

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Ending Impunity for Sextortion
By Unknown
Posted: 2023-10-20T16:07:40Z

Ending Impunity for Sextortion: Challenges and Alternatives for Prosecuting Sextortion

October 17, 2023


IAWJ Senior Advisor Nancy Hendry spoke on a panel at the Global PILnet Forum 2023. The panel's title was "Ending Impunity for Sextortion: Challenges and Alternatives in Prosecuting Sextortion."


The panel had a multifaceted agenda, encompassing several key objectives. First and foremost, it sought to enhance awareness among participants about the disturbing prevalence of sextortion as a form of corruption. This entailed shedding light on the issue and its implications, emphasizing its significance in the realm of both anti-corruption and gender-based violence legal frameworks.


Moreover, the panel aimed to identify, discuss, and deliberate upon the complex challenges and opportunities associated with prosecuting sextortion. This included a comprehensive exploration of potential legal avenues and strategies for overcoming these challenges, with particular attention given to the possibility of enacting dedicated legislation to address sextortion as a distinct offense.


Furthermore, the panel served as a crucial platform for facilitating cross-jurisdictional exchange among experts and practitioners. It provided a space for sharing experiences and insights garnered from working on cases related to sextortion, ultimately contributing to the development of jurisprudence surrounding this offense.


Lastly, the panel's overarching objective was to establish an informal legal support network geared towards advancing legal reform related to sextortion. This support network would extend to casework and pro-bono legal assistance for cases identified by Transparency International's Advocacy and Legal Advice Centers (ALACs), thereby furthering the cause of combating sextortion and providing aid to victims in need.


Nancy Hendry presentation can be found below:


1.     Definition of sextortion: What is sextortion? How has this phenomenon emerged? What aspects of its definition are still under debate?


From a corruption standpoint, the abuse of authority – and its toll on good governance – is the same whether someone is obliged to pay in cash or with sex. 


This now seems obvious, but when the International Association of Women Judges coined the term “sextortion,” it was anything but. 


We see the world through frames that shape how we define problems, collect data, and craft solutions. They predispose us to think of corruption in economic terms – things of value changing hands – and to think of sexual exploitation in non-consensual and gendered terms. 


In 2008, our members expressed concern about conduct that didn’t fit neatly into either of these frames.  


In Uganda, prison officials were demanding sex from the wives of prisoners in return for delivering necessary medication. In Central America, border guards were demanding sex in exchange for allowing women to cross. A woman in Ecuador was propositioned by the judge hearing her child support claim. In multiple countries, teachers were pressuring students for sex in exchange for grades. And nothing was being done to stop the predatory conduct.       


In a moment of clarity, we realized these concerns were not particular to any official, sector, or country, but part of a global pattern involving abuse of power in exchange for sex.  


The pattern was clear, but there was no recognized term to describe it. Was it a corruption offense? The transactions were certainly corrupt -- officials were using entrusted authority for private gain. But anti-corruption laws tend to focus on financial impropriety. 


Was it a sexual offense? The transactions involved sex, but “consent” -- even under inherently coercive circumstances – is often a defense under gender-based violence laws. 


It’s difficult to discuss, let alone analyze and address, an abuse you cannot name. We wanted to change this, and chose “sextortion” to capture both the sexual exploitation and the corruption aspects of these abuses. This is important. Not all forms of sexual exploitation are sextortion. Sex has long been a currency used when people have nothing else to trade. The fact that someone receives something in exchange for sex does not make it sextortion. There also has to be a corruption element. 


Three elements characterize and distinguish sextortion: 


  • First, the perpetrator is someone entrusted with authority. This distinguishes sextortion from offences committed by those, such as traffickers, rapists, cyber blackmailers, and intimate partners, who have not been entrusted with authority and are not abusing it in committing the offence. A fisherman who demands sex from a market woman seeking to purchase his fish, may be exploiting his power as a supplier but he is not abusing any entrusted authority and, therefore, is not engaging in sextortion. 


  • Second, the perpetrator abuses that authority by exercising it in exchange for personal benefit. This quid pro quo distinguishes sextortion from offences that do not involve an exchange of benefits, for example, hostile environment sexual harassment or a prison guard who rapes an inmate.


  • Third, the personal benefit takes a sexual form – whether a sexual act, posing for photos, or inappropriate touching. This differentiates sextortion from corruption involving non-sexual benefits.   


Note that coercion or lack of consent is not an element of sextortion. Sextortion encompasses a spectrum of scenarios – some people are coerced into paying bribes, some initiate the bribery scheme, some pay bribes in anticipation of being asked, and sometimes both parties are equally willing. Wherever the exchange falls on this spectrum, it is still corrupt, and the focus should be on those who are entrusted with authority and have a responsibility to exercise it with integrity and reject attempted bribes. 


Sextortion is a new name for an age-old phenomenon. Everyone knew it existed, but without a name, no one talked about it, gathered data, developed strategies for combating it, or drafted laws or codes of conduct to address it. Naming sextortion galvanized discussion and helped make it part of the international anti-corruption discourse. It is difficult to overstate the importance of this. There are still nuances to be worked out, but it has made today’s conversation possible and provided a common framework for addressing this sexualized form of corruption. 


2.     Existing legal tools to address sextortion: What existing legal tools are available to address sextortion? What are their challenges and limitations in addressing sextortion?        


Although every jurisdiction has some laws that would apply to some cases of sextortion, most were not drafted with sextortion in mind, leaving significant gaps. The IAWJ worked with the Thomson Reuters Foundation and International Bar Association on two comparative studies of legal frameworks for prosecuting sextortion. Links to both are in the handout.


Because sextortion involves sexual benefits, it can be viewed through a gender-based violence lens and – depending on the nature of the sexual conduct, the type of perpetrator, whether evidence of physical force or refusal is required – prosecuted as a sexual offence. 


Statutory rape laws, for example, might reach sextortion involving sex with a minor, but not an adult, and would not reach the full range of sexual benefits – such as kisses or nude photos – demanded in sextortion cases.


Sexual offence prosecutions have a long history of focusing on the consent and actions of the victim rather than the responsibility of the perpetrator. Focusing on whether a relationship is romantic and consensual might be relevant in a date rape case, but not in a corruption case. A bribe payer’s willing participation in no way diminishes the responsibility of the person in authority nor mitigates the systemic harm corruption causes.  


Sexual harassment laws directly target certain types of sextortion. A supervisor who makes sex a condition of keeping a job is engaging in both quid pro quo sexual harassment and sextortion. 

But sexual harassment also covers conduct, such as creating a hostile work environment, that does not involve either a quid pro quo or abuse of power -- two key elements of sextortion.  


In certain jurisdictions, sexual harassment laws are limited to employment or educational settings and involve only civil or administrative penalties. 


Focusing on the corruption aspect of sextortion eliminates many of the challenges in applying gender-based violence laws. Viewed through a corruption lens, issues of consent and coercion cease to be relevant. 


Although sextortion has been successfully prosecuted under anti-corruption statutes, the applicability of a particular statute depends on its wording. 


Some statutes expressly address abuse of power in exchange for sex but are limited to particular perpetrators and situations. Laws targeting public officials might not reach sextortion by teachers or employers. 


Other statutes do not specifically address sexual bribes but use language – such as “undue advantage” or personal “benefit” -- that is broad enough to encompass them.   

But even where the statutory language is broad, if it hasn’t been construed as applying to sextortion, it’s a question that has to be litigated, and some judges might decide one way and some another. Does a personal advantage or benefit include sexual favors? Is it sufficiently precise to put perpetrators on notice? 


In Singapore, the Prevention of Corruption Act defines prohibited “gratification” to include any service, favor or advantage of any description whatsoever, and has been used to prosecute cases involving sexual benefits.  


But similarly broad language in Argentina – encompassing “benefits, favors, promises and advantages” – has been narrowly construed not to include sexual bribes.   


Some jurisdictions have yet to consider how their laws apply to sexual benefits. The Tunisian anti-corruption law applies to “advantages of any nature whatsoever,” but participants in a sextortion workshop disagreed about whether this would include sexual benefits. Some read the language expansively, but others felt it failed to give specific notice that soliciting or accepting a sexual bribe is a criminal offence.  


Yet other anti-corruption laws leave no room for interpretation. Statutes that require evidence of property gain or financial harm cannot be used to prosecute sextortion. 


Even where anti-corruption statutes encompass sextortion, they may not adequately protect victims. Someone who accedes to a sextortion demand might be vulnerable to prosecution as a bribe payer.   


In countries where the laws penalize adultery, a woman might be at risk of prosecution if she acceded to a sextortion demand that involved intercourse with a married perpetrator.


To protect complainants and end impunity for perpetrators, we need to recognize the power imbalance between the two and reward rather than penalize those willing to expose corruption and promote accountability.  


3.     What else is needed: is criminalisation itself sufficient to address sextortion? What else is needed? 


An adequate legal framework is just one link in the chain required to successfully prosecute sextortion. As a threshold matter, even where the laws are adequate, prosecutors cannot bring cases and judges cannot hold perpetrators accountable without robust reporting. 


Many factors contribute to the culture of silence around sextortion, but chief among them is the lack of information about sextortion and how to report it. People will not complain if they don’t know their rights and feel empowered to assert them. We need to build awareness and raise the visibility of the problem.


Even if people are aware of their rights, they may not come forward if they do not have access to a secure and confidential complaint mechanism. The shame and stigma associated with sexual offenses compound the difficulty of getting victims to come forward.  


Leveling an accusation against a person in authority is always a risky proposition. It takes great courage to complain when the perpetrator occupies a position of power – and the only evidence is likely to be his word against hers. Without adequate whistleblower protections and safety measures, fears of retaliation may be justified and real. 


Finally, people need to have confidence that, if they do come forward, the justice system will provide redress and won’t revictimize them. It matters how the justice system treats their complaints and whether it has the resources and commitment to support prosecution. 


Even if the law is theoretically adequate, gender bias can make the experience needlessly daunting or even rob the complainant of justice. 


Ultimately, deterring sextortion also involves changing the patriarchal attitudes and institutional cultures that tolerate or even encourage it. Adopting clear standards of conduct and reinforcing them through education and training can help to do so.


4.     Closing remarks from all speakers:  What is the way ahead (next steps).


Closing the gaps in existing legal frameworks is, of course, important and also creates opportunities. 


To begin, we need clarity about sextortion as a form of corruption. For too long, it was ignored and trivialized – seen as just part of life, perhaps even a perk for those in power and not really harmful to those dependent on that power for basic needs and future opportunities. We need to recognize how pervasive and harmful it is not only to individuals but to society and its institutions. We need to treat it with the seriousness corruption merit.   


Sextortion challenges us to reconsider our approach to petty corruption – which is petty only in name, not in scope or impact. Since TI has begun asking about sextortion in its Global Corruption Barometer survey, we have a clearer understanding of just how many lives it affects.  


We need to focus on the power imbalance that makes sextortion possible and rethink anti-corruption laws that make ordinary people seeking to access government services as culpable for paying a bribe as the person in authority who demands it. As long as the powerless fear prosecution for yielding to the demands of the powerful, we will never have robust reporting, succeed in holding those in authority accountable, or end sextortion.