Cyber Sexual Misconduct: The Evolution of Sexual Privacy Laws and Best Practices for Representing Victims

• Pages: 3-63
• Date: 01 April 2025
• Published date: 01 April 2025
• Author: Jolie Bodner Zangari,Lindsay Lieberman
• Subject Matter: Derecho Público y Administrativo

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CRIMINAL JUSTICE | SPRING 2025

If there is one area of the law that has expanded exponentially in the past

decade, it is cyber sexual of‌fenses. The explosion of the digital era has brought

with it a new set of norms, including new ways in which people can harm others,

especially in an intimate or sexual manner. No longer does one need to be face-

to-face with, or have intimate access to, someone to exploit that person’s body,

privacy, or intimate behaviors. Novel statutes have been enacted that respond

to these trends, along with new language and terminology used in our modern

society to explain these behaviors. Phrases like “revenge-porn” and “sextortion”

are becoming more mainstream and commonly spoken among the most varying

groups of people: from pre-teens in social circles experimenting with the latest

terms and behaviors, to judges who are required to oversee litigation in the new-

est area of cybercrime. These phrases have actual meanings and associated legal

terminology that can substantiate both criminal of‌fenses and civil actions.

As this area of the law continues to evolve and expand, it is critical for attorneys

and practitioners to become acquainted with the terminology and conduct that

supports the f‌iling of criminal charges, a civil lawsuit, a complaint on a college

CYBER SEXUAL

MISCONDUCT

The Evolution of Sexual

Privacy Laws and Best Practices

for Representing Victims

BY JOLIE BODNER ZANGARI AND LINDSAY LIEBERMAN

JOLIE BODNER ZANGARI

is a former prosecutor

from the Kings County

District Attorney’s Ofce in

Brooklyn, New York. She is

currently a full-time faculty

member of the Criminal

Justice Department of the

State University of New

York (Nassau), specializing

in criminal law, procedure,

and criminal behavior.

She can be reached at

jolie.zangari@gmail.com.

LINDSAY LIEBERMAN

is a former sex crimes

prosecutor from the Kings

County District Attorney’s

Ofce in Brooklyn, New

York. She currently owns

her own rm providing

legal services to survivors

of domestic violence and

cyber abuse. Lindsay

serves as an adjunct

professor at Salve Regina

Universityin Rhode Island.

Published in Criminal Justice, Volume 40, Number 1, Spring 2025. © 2025 by

the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in

any form or by any means or stored in an electronic database orretrieval system

without the express written consent of the American Bar Association.

4

CRIMINAL JUSTICE | SPRING 2025

campus, or a violation relating to employment. As

much of this litigation involves harm of a private,

intimate, or sexual nature, victims oftentimes may be

suf‌fering from emotional trauma and be at a loss on

how to seek justice. Accordingly, attorneys represent-

ing these victims must be educated and trained in

the best practices, which include legal representation

in a compassionate and responsive manner, such as

trauma-informed lawyering, to be able to provide the

most ef‌fective advocacy. Attorneys with experience

in cyber sexual abuse can of‌fer accurate and reliable

information to people who may be unaware that

there are legal options for them and help them to

navigate those options in the legal system. Addition-

ally, more experienced attorneys have the power to

spread awareness regarding cyber sexual misconduct

to prevent an increase in violations of sexual privacy,

in addition to achieving justice for those who have

been harmed.

The Evolution of Cyber Sexual Laws

Laws of a sexual nature have existed as long as Penal

Codes have existed. Crimes for behaviors includ-

ing rape, sexual abuse, incest, and child molestation

have long been integrated in state criminal codes.

To establish proof of these of‌fenses, an allegation

must be made that the of‌fender was present with the

victim for the actus reus, the legal element requiring

a voluntary physical action, to occur. Thus, exploita-

tion of a sexual nature required a per se face-to-face

encounter between the perpetrator and the victim.

In addition to physical presence, physical contact

between the two also was required to be alleged and

proven.

At the beginning of the technological evolution and

the creation of cameras and videography equipment,

our modernized society observed an expansion of

the types of behaviors that can violate a person’s

sexual privacy. In response, sexual privacy laws were

enacted, beginning with federal legislation. Protec-

tion of Children Against Sexual Exploitation Act of

1977, Pub. L . No. 95-225, 92 Stat. 7 (1978). Statutes

forbidding the creation, possession, and distribution

of child sexual abuse material (often referred to as

“child pornography”) came into existence. In general,

these statutes prohibit the photography of children

and young teenagers while nude, engaging in sexual

activity, or simulating sexual activity. While the taking

of these images required the victim and perpetra-

tor to be present together, the acts of distributing

the images to others or possessing the images does

not. This marked the f‌irst occurrence that a person’s

sexual privacy could be violated without that victim

being present during the commission of the of‌fense.

That is, the dissemination of an inappropriate image

from one person to another does not require the vic-

tim’s presence. In response to the use of computers

to distribute and receive child pornography, federal

statutes followed in response. Child Protection and

Obscenity Enforcement Act of 1988, Pub. L . No. 100-

692, 102 Stat. 4181, 4485.

Continuing evolution of technology, especially in

forms of communication, enabled these behaviors to

signif‌icantly increase. The invention of digital cam-

eras, computers with cameras, electronic mail (email)

with photograph attachment capability, and mobile

and cellular telephones with cameras gave rise to

the potential for more severe violations of people’s

sexual privacy. This allowed for an onslaught of new

ways of taking and storing photographs and videos.

One could take hundreds of photographs within

seconds and store all of them in one device and share

them electronically. There was no longer a need for

camera f‌ilm, paper prints, or third-party printing. Fur-

ther, with the use of these new devices, people had

the ability to easily communicate with one another,

and f‌ind people with similar criminal interests, which

included sending inappropriate or illegal images to

one another. Communication and distribution of

images became instantaneous. People began send-

ing emails with photographs and videos attached,

text-messaging images and videos, and uploading the

same onto websites that can be accessed by millions

of people. As a result, a nude or embarrassing image

of one person could reach hundreds or thousands of

viewers within seconds. Finally, with the creation of

social media platforms, such as Facebook, Instagram,

Tik-Tok, Snapchat, and YouTube, the posting and

distributing of naked or sexual images and videos po-

tentially reaches millions of viewers instantaneously.

As a result, cyber sexual misconduct has increased

exponentially.

Aside from the increase in cybercrimes, traditional

non–cyber sexual and criminal behaviors have been

made signif‌icantly easier for perpetrators with the

use of technology, the internet, and social media

platforms. For example, the crimes of sex traf‌f‌icking,

forced prostitution, stalking, domestic violence, pos-

session of child sexual abuse material, and the luring

of children with the intent of committing an of‌fense,

Published in Criminal Justice, Volume 40, Number 1, Spring 2025. © 2025 by

the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in

any form or by any means or stored in an electronic database orretrieval system

without the express written consent of the American Bar Association.

5

CRIMINAL JUSTICE | SPRING 2025

such as a murder or sexual of‌fense, have become

considerably easier when the perpetrators can ef-

fectuate them with the use of advanced technology

and communication. According to the Polaris Project,

a leading nonprof‌it organization combating human

traf‌f‌icking, for sex traf‌f‌icking of‌fenses alone, social

media can be used to identify and locate potential

victims, recruit victims, conceal identities of perpetra-

tors and victims, communicate with others within the

traf‌f‌icking organization, monitor victims and traf‌f‌icking

operations, and coerce victims into remaining within

the organization (Polarisproject.org).

This evolution of technology and the internet has

af‌fected other areas of litigating sexual of‌fenses. Prior

to the availability of modern technology, knowledge

of the details of traditional sexual of‌fenses often

were limited to the victim, law enforcement and

attorneys, and, for a small percentage of cases, any

publicity associated with the media or courts. Print

photographs were kept within the control of attor-

neys and judges. Statutes were created to keep these

vulnerable victims’ names from being printed in the

media to protect them from widespread publication

of their identities. The very same type of victim to

whom legislatures sought to of‌fer more protection

are the same victims being hurt by the modern us-

ages of technology and social media. With the exis-

tence of modern technology, victims of cyber sexual

misconduct often become exploited in a much more

public manner and can feel victimized repeatedly as

more and more people become aware of the of‌fense,

or even see or download the evidence of it. Once an

image or video is publicly shared, there are signif‌icant

dif‌f‌iculties in removing the content. Oftentimes, the

purpose of the of‌fense itself is to exploit the victim’s

sexual privacy to the public in a form of revenge,

threat, shame, or embarrassment. There are several

new behaviors and correlating statutes for these

emerging types of of‌fenses. Each of these behaviors

has an associated colloquial term that has been used

in informal conversation, with a corresponding legal

term of art and statute.

• “Revenge porn” is a colloquial phrase used to

describe the dissemination of private sexual

images without consent. It is formally known as

“non-consensual distribution of intimate images”

(NCDII). The internet, social media, cellular

phones, and computers are used for dissemi-

nation, or sharing, of the images. This of‌fense

can be committed with images taken with or

without the consent of the person depicted.

When taken without consent, images of this

nature could result from the use of a hidden

camera, threat of force, coercion, or false prom-

ises. When taken with consent, the images are

often taken by the depicted person or with per-

mission granted to another person. However,

distributing the images occurs without con-

sent. For example, the images may have been

taken and produced within the context of a

consensual intimate relationship but distrib-

uted at some point without consent. The phrase

“revenge porn” is problematic because it mis-

characterizes the behavior. The term “porn” or

“pornography” refers to the consensual creation

and distribution of explicit content. Further,

although the word “revenge” is used in its collo-

quial phrase, the dissemination of these types of

images or videos may not be done for revenge

purposes. It also could be done for power,

control, exploitation, entertainment, notori-

ety, or prof‌it. When done for the purpose of

revenge, vengeance can take on many forms,

such as embarrassment or shame of the victim

and/or the victim’s family, the loss of poten-

tial future intimate relationships, and the loss

of employment or status in their communities.

Disseminating “revenge porn” has increased

together with the creation of technology and

social media platforms and can have devastat-

ing emotional impacts on victims. In response,

nearly every state in the United States has crimi-

nalized this behavior in recent years, as well as

provided for potential recourse in civil actions.

For example, the state of New York has created

a criminal statute called Unlawful Dissemina-

tion or Publication of an Intimate Image, a class

“A” misdemeanor, which could result in a maxi-

mum of a one-year incarceration sentence and

the issuance of an Order of Protection for the

victim from the of‌fender. Under New York’s Civil

Rights Law, a victim of revenge porn also has

a cause of action that could result in various

forms of damages. These types of laws, which

did not exist just a few years ago, provide some

form of legal recourse for victims.

• “Sextortion” refers to the act of extorting

or demanding money, favors, demands, or

additional sexual content from a person by

threatening to disseminate evidence of the

Published in Criminal Justice, Volume 40, Number 1, Spring 2025. © 2025 by

the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in

any form or by any means or stored in an electronic database orretrieval system

without the express written consent of the American Bar Association.