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Sextortion: Sexual offence or corruption offence?

Nancy Hendry

When an immigration official demands cash in exchange for a work permit, we call it bribery and label the official as corrupt. But what if he demands sex instead? Is it corruption? Sexual exploitation? It is both. The International Association of Women Judges coined the term “sextortion” to describe these abuses of authority in which sex is the currency of the bribe.

Sextortion is still a relatively new term, so it is hardly surprising that law makers have not focused on the nexus between corruption and sexual exploitation. In the absence of laws targeting sextortion, the imperfect choice is between prosecuting it as a corruption offence or as a sexual offence.

It often eludes prosecution as either. If you think of bribery as money changing hands, a sexual exchange may not seem corrupt. If you think of sexual abuse as non-consensual, yielding to a corrupt sexual demand may seem like a consensual bargain, even under duress. That thinking has produced anti-corruption laws that do not address sexual bribes, and gender-based violence laws that do not address non-physical forms of coercion. The result is an imprecise fit between sextortion and existing legal frameworks.

Transparency International’s recent report on sextortion notes some of the challenges in prosecuting sextortion under existing anti-corruption and gender-based violence legal frameworks. While prosecution is possible, there are important gaps. Prosecutors have to match the facts in each case to conduct proscribed in an existing law. The applicability of a sexual offence law may depend on the nature of the sexual conduct (for example, rape, sexual assault, inappropriate touching, pornography, sexual harassment), the type of perpetrator (for example, government official, supervisor), and whether evidence of physical force or refusal is required. Sexual harassment laws may reach sextortion between a supervisor and employee, but may not reach sextortion involving an immigration official and work permit applicant. An anti-corruption law may apply if its language is broad enough to encompass sexual bribes and does not require evidence of financial harm. However, anti-corruption laws that apply to public officials may not reach sextortion by teachers who demand sex for grades or by employers who engage in quid pro quo sexual harassment.

Viewing sextortion through a corruption lens

Given these gaps, is it better to view sextortion through a corruption lens or a gender-based violence lens? Without comprehensive sextortion legislation, we need to use all the legal tools at hand to hold perpetrators accountable. However, there are significant advantages to seeing sextortion as a form of corruption. Transparency International defines corruption as “abuse of entrusted power for private gain”, and sextortion falls squarely within this definition; a sexual demand is indisputably for private, not public benefit, and it is important to recognise the institutional and societal harm caused by officials who exercise their authority for private rather than public purposes. Additionally, from a governance standpoint, whether an official abuses power for sex or for money, the damage to transparency and the rule of law is the same.

Although there are gaps in the existing anti-corruption legal framework, it is better suited than the gender-based violence framework for addressing sextortion as an abuse of power that cuts across sectors and involves a wide variety of sexual demands. Bribery statutes are often framed in broad terms, such as “undue advantage,” that can encompass sextortion involving any type of official or sexual bribe. In contrast, sexual offence laws generally target specific sexual conduct and are narrower in application. This makes them less suitable for addressing sextortion in a comprehensive manner. For example, statutory rape laws might reach sextortion involving sex with a minor, but not an adult, and would not reach the full range of sexual favours — such as kisses or nude photos — demanded in sextortion cases.

Enforcing accountability for corrupt behaviour

Social attitudes towards sex and money influence the different standards applied to sexual and corruption offences. When an official demands sex, people want to know whether the woman initiated the exchange, benefited from it, and was a willing participant. Those issues may be relevant to a sexual offence, but not a corruption offence. It is no defense to say that the official accepted rather than solicited the bribe, nor that the bribe payer benefitted from the exchange or paid the bribe willingly rather than under duress. Why should demanding — or accepting — sexual favors be viewed any differently?

When we view sextortion through a corruption lens, all the baggage that comes with sexual offences ceases to be relevant. Too often, people trivialise the harm caused by sexual misconduct or dismiss it as a women’s issue. Wherever the grey areas lie in sexual relations, viewing sextortion through a corruption lens draws a bright line: using power to extort sex is corrupt. Focusing on the corruption aspect provides an opportunity to engage the support of people who may not care about gender equality, but who do care about the rule of law, integrity, transparency and accountability.

More importantly, corrupt behavior needs to be addressed as such, so that we can gather data and develop effective strategies for addressing it. That begins with recognising sextortion as a form of corruption. For the first time, Transparency International included questions about sextortion in its Global Corruption Barometer survey in two regions. It found that one in five people had experienced or knew someone who had experienced sextortion. That finding is immensely important. Unless we make sextortion part of the way we think and talk about corruption, we will continue to miss an important piece of the corruption picture and fail to recognise or address its full extent and impact.

Photo: International Association of Women Judges

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