Introduction I. The Devastating Impact of Revenge Porn and the Context of Cyberharassment and Intimate Partner Crimes A. Tangible Consequences of Revenge Porn B. Abstract Consequences of Revenge Pornography Online and Offline C. The Unique Problem of Cyberharassment D. Society's Historical Treatment of Intimate Partner Crimes E. Revenge Porn as the Latest Arena for Victim Blaming II. The Problem of Inadequate Legal Redress for Victims of Revenge Porn A. Websites Have No Incentive to Prevent Harm or Assist Victims B. Legal Options Available in Actions Against a Revenge Porn Poster 1. Difficulty of Securing Successful Civil Victories 2. Other Criminal Statutes Can Only Help in Limited Circumstances. a. Cyberharassment and Cyberstalking Statutes b. Blackmail Statutes c. Anti-Hacking Statutes d. Problems with Criminal Statutes Currently Available to Revenge Porn Victims 3. Criminal Laws Directly Addressing the Problem of Revenge Porn. a. New Jersey Model b. California Model c. Failed Revenge Porn Legislation in Florida d. The Lack of Federal Legislation Addressing Revenge Porn e. Arguments Against Criminalizing Revenge Porn Legislation f. First Amendment Concerns III. Revenge Porn Should Be Classified as a Sexual Offense A. Specific Criminal Statutes that Directly Address the Severity of Revenge Porn Are Needed B. Revenge Porn Is a Type of Sexual Misconduct C. Thinking about Revenge Porn Laws like Sexual Misconduct Laws 1. The Focus of Revenge Porn Criminal Statutes Should Be on the Defendant, Not the Victim 2. If Revenge Porn Were Classified as a Sexual Offense, Rape Shield Laws May Apply 3. By Making Revenge Porn a Sexual Offense, the Victim's Name May Not Have to Be Fully Disclosed in Court Documents Conclusion INTRODUCTION
Annmarie's long distance boyfriend, Joey (1), had been pressuring her for months to take nude photographs. (2) He missed her, he claimed, and wanted to admire her beauty while they were apart. (3) Joey swore they would stay on a CD, hidden in a drawer in his room, and he would be the only one ever to see them. (4) However, in February 2010, the day after Joey and Annmarie broke up, he called her in a rage. (5) He accused her of sleeping with three other men, and based the allegation on information obtained from her Facebook page. (6) Annmarie denied the accusations and tried to reason with him, but Joey refused to believe her. (7)
Joey threatened to start an eBay auction for the CD of the eighty-eight naked images of Annmarie that he had previously sworn to keep private. (8) He also informed her that he would send the link to all her friends, family, and co-workers at the college where she was employed. (9) "I will destroy you," he promised. (10) Annmarie called the police that very night. (11) The police told Annmarie that there was nothing they could do to protect her because no crime had been committed. (12)
The next day, Joey kept his promise and the auction went live. (13) The eBay posting was titled "(Name of [Annmarie's] college)MD English Professor Nude Photos!" (14) Annmarie also discovered that Joey had posted the eBay links on five of her college's Facebook pages. (15) She received messages from friends, her ex-husband, and a former babysitter alerting her of the auction. (16) Annmarie reported Joey on Yahoo! and Facebook. (17) She even contacted the police again, but the officer reiterated there was nothing they could do. (18) Frustrated, Annmarie decided to go to the police station with printouts of the auction website. (19) The officers there snickered at the pictures and looked amused at her problem. (20)
For the next year, Annmarie lived in perpetual fear. (21) She would often wake up in the middle of the night in a panic. (22) Then, in September 2011, her worst fears came true when she Googled her name and found that a profile had been created for her on a porn website. (23) The title was "HOT FOR TEACHER? WELL, COME GET IT!" and included her full name, city where she lived, and the college where she worked. (24) An individual that Annmarie had never met was even chatting with online strangers purporting to be her. (25) The photographs had been up for two weeks, and had already been viewed 4000 times. (26) She later discovered that copies of the CD were mailed to both her son's Catholic school kindergarten teacher and the head of her department at the college where she was employed. (27)
Annmarie went to the police again, who said there was nothing they could do until an actual crime had been committed. (28) One even looked amused at her problem. (29) She feared going outside, because her full name accompanied the photographs, and she worried she might be stalked. (30) She called her college and requested medical leave that day, but her request was denied. (31) Two days after she discovered her photographs on the porn website, she attempted to end her own life. (32) Fortunately, she was not successful. (33) Two weeks later, she brought her case to a state trooper. (34) The state trooper was sympathetic to her case, but once again said there was nothing he could do because there were no laws in place to protect victims like her. (35) Annmarie described this moment as the turning point, which pushed her to become an advocate for anti-revenge porn legislation. (36) "Well then, I'm going to change the laws," she vowed. (37) Annmarie then joined the ranks of women fighting a dangerous offense: revenge porn.
The term "revenge porn," also referred to as "nonconsensual pornography" (38) or "involuntary pornography," (39) is the distribution of sexually explicit images of an individual where at least one of the individuals depicted did not consent to the dissemination. (40) Revenge porn gets its name from scorned ex-boyfriends or ex-husbands (41) posting pictures of their former girlfriends or wives in order to "get back at" or humiliate them in retaliation for ending the relationship. (42) Although revenge porn gets its name because the perpetrators are often ex-partners, it can also be used to describe other types of relationships, as the definition can encompass any type of nonconsensual distribution of intimate photographs, such as postings by a roommate or a classmate using these pictures to bully another. (43) Usually, the sexual photos were originally taken or obtained with the consent of the subject, in the context of an intimate relationship. (44) Women may also find themselves victims of revenge porn because of someone hacking into their phone or computer and then posting the private pictures they find online. (45) The photographs are often posted with identifying personal information, such as the victim's full name, address, workplace, and Facebook page. (46)
Today, sharing compromising photos with a partner is far from uncommon. (47) A recent study found that fifty percent of respondents had shared "intimate photos" with a partner, and one in ten of those respondents had been threatened by an ex who said they would post those pictures online. (48) Sixty percent of those threatening partners carried out their threats. (49) Despite common awareness that celebrities often have their compromising photographs posted without permission, ninety-four percent of Americans still believe that their risque photographs are safe in the hands of their current partners. (50) The National Campaign to Prevent Teen & Unplanned Pregnancy found in 2008 that thirty-six percent of young adult women and thirty-one percent of young adult men had sent another person a nude or semi-nude image of themselves. (51) The same study determined that out of the respondents who had sent sexually suggestive content to another, the overwhelming majority of them had sent it to a boyfriend or girlfriend. (52) Even though women and men appear to be sending these pictures in roughly equal numbers, women are far more likely to be pressured to send these pictures, and they are much more likely to be victims of revenge porn. (53) Victims of online harassment, which includes revenge porn, are overwhelmingly female, (54) while those who run revenge porn websites are predominately young males. (55)
Why do these women send these compromising photographs at all? Sometimes it is just a way of flirting. (56) More often, women send them to show their interest in the partnership. (57) Some men coax their girlfriends to send them sexual photographs of themselves to prove her trust in him. (58) In this scenario, the woman is caught in a difficult emotional position, for if she does not send a picture, it could be perceived as a sign that she does not truly trust or love her partner. (59)
Part I of this Note examines the effect of revenge porn on its victims and how society has historically treated predominately female-felt...