No vengeance for 'revenge porn' victims: unraveling why this latest female-centric, intimate-partner offense is still legal, and why we should criminalize it.

Author:Bloom, Sarah
Position:II. The Problem of Inadequate Legal Redress for Victims of Revenge Porn B. Legal Options Available in Actions Against a Revenge Porn Poster 2. Other Criminal Statutes Can Only Help in Limited Circumstances d. Problems with Criminal Statutes Currently Available to Revenge Porn Victims through Conclusion, with footnotes, p. 261-289
 
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  1. Problems with Criminal Statutes Currently Available to Revenge Porn Victims

    One of the problems with currently available statutes prohibiting cyberharassment, blackmail, and hacking is their lack of enforceability. (230) Even though victims may be able to recover through one of the current remedies, police are not always aware of how they apply. (231) This may lead officers to tell women to wait until a crime occurs offline: (232)

    [T]he trivialization of cyber gender harassment has an unfortunate consequence: the underenforcement of criminal law. Targeted individuals often refrain from reporting cyberharassment to authorities, fearing it will not be taken seriously. Law-enforcement agencies refuse to pursue cyberharassment complaints on the grounds that the conduct is legally insignificant, in much the same way that prosecutors once refused to file charges in cases involving gender-specific sexual assaults such as domestic violence and rape. Law's underenforcement may be due to the absence of training about cyberharassment. (233) This lack of education for police officers about current cyber-harm statutes (which may not apply to many victims), (234) compounded with the difficulty of finding an anonymous user without a website's help, gives victims little hope that anyone will be held responsible for their harm. (235)

    1. Criminal Laws Directly Addressing the Problem of Revenge Porn

    To date, six states have adopted anti-revenge porn legislation, but they generally fall into two categories of statutes: ones that follow the New Jersey model and ones that follow the California model. (236) New Jersey and California were the first two states with statutes prosecutors could utilize to combat revenge porn, but each state differs significantly in its statutory requirements. (237) Florida has already considered a revenge porn bill, but it failed to pass. (238) Internationally, France criminalized "taking, recording or transmitting the picture of a person who is within a private place, without the consent of the person concerned," (239) and in 2014, Israel banned online distribution of sexual pictures or videos without the subjects' consent, which carries a sentence of up to five years in prison. (240)

  2. New Jersey Model

    New Jersey was the first state to enact a statute that allowed for the criminal prosecution of revenge porn distributors, although this was probably not the original purpose of the statute when it was passed a decade ago. (241) The relevant portion of the statute criminalizes disclosure of a "photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure." (242) New Jersey divides crimes by degrees, ranging from first to fourth instead of misdemeanors and felonies. (243) The non-consensual disclosure of sexual photographs or videos in New Jersey is a crime in the third degree, (244) punishable for up to five years in prison or a $30,000 fine, which is comparable to a felony in other states. (245)

    The New Jersey State Senate Committee, which passed the legislation, focused on the non-consensual recording and observation aspects of the statute, (246) rather than the non-consensual disclosure. (247) The legislative history illustrates the state senate committee's recognition of individuals' right to privacy over these private moments. (248) The committee noted, "[t]his [bill] recognizes that people have a right to control the observation of their most intimate behavior under circumstances where a reasonable person would not expect to be observed." (249)

    A major advantage of the New Jersey statute over other revenge porn statutes is it lacks the "intent to harass" requirement that other state and federal statutes mandate. (250) This closes the loophole for defendants claiming that they were not motivated by a desire to humiliate or harass the victim, but posted or sent the photographs for purely personal reasons. Instead, the New Jersey statute is aimed at whether the person knew they were not licensed or privileged to disclose the intimate images without the depicted person's consent. (251)

    It is still unsettled whether or not New Jersey's statute violates the First Amendment. (252) It may do so because it distinguishes content based on the sexual nature of the picture or recording, and content-based distinctions require a higher level of scrutiny. (253) However, the law is still in effect and is currently used to charge individuals posting scandalous pictures of their former partners on the Internet. (254)

    Idaho passed a bill similar to the New Jersey statute in March 2014. The statute makes it a felony to distribute intimate pictures of another when the actor knew or should have known that at least one party understood that the image was to remain private. (255) Instead of enacting an entirely new law, the Idaho legislature opted to amend and expand their existing video voyeurism law to encompass revenge porn offenders. (256) Although the statute has one element dissimilar to the New Jersey statute, that the defendant know that the parties agree that the photograph should remain private, (257) it does not have other requirements that states like California impose, which could enable defendants to escape liability. (258)

    Wisconsin quickly followed Idaho's lead and passed its own anti-revenge porn statute in April 2014. (259) The law criminalizes posting sexual or nude photographs of another when the actor knows he or she does not have the consent of the subject of the photo. (260) The offense is a Class A misdemeanor. (261) This law parallels the New Jersey statute in its lack of intent requirement and focus on knowledge of consent.

  3. California Model

    California criminalized nonconsensual pornography in October 2013. (262) Unlike New Jersey, California's law was passed to directly address the growing problem of revenge porn. (263) In particular, the law prohibits:

    Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress. (264) The offense is classified as a misdemeanor. (265)

    California's law has an advantage over New Jersey's statute because the law applies even if the photograph was originally taken with consent. (266) The ACLU originally fought an earlier version of the statute, claiming that it would infringe upon individual constitutionally protected free speech rights. (267) However, the organization withdrew their opposition after the currently effective version was proposed. (268)

    Despite the advantages California's law presents over the New Jersey model, journalists have pointed to several of the statute's shortcomings. The main concern is that the law only applies to defendant distributors who were also the original photographer. (269) If the victim took a picture of herself and sent it to her boyfriend, who subsequently forwarded or posted it, the law would not apply. (270) The statute also does not apply to hackers who redistribute pictures after breaking into a victim's phone or computer. (271) These two exceptions leave the majority of defendants untouchable by the law. Holly Jacobs estimates that of the thousand victims that have contacted her through her website, EndRevengePorn.com, eighty percent took the offending pictures themselves. (272)

    Another issue the California statute presents is that the prosecution must prove that the defendant intended to cause serious emotional distress, and that the victim suffered serious emotional distress. (273) As discussed in Part II, proving the defendant's rationale for disseminating the nude photographs can create an easy loophole for men to claim that they were simply seeking fame or money, and not the humiliation of their ex-partner. (274) Further, requiring the prosecution to show that the victim suffered emotional distress would likely require her to testify in court and face cross examination about her traumatic experience. (275) This element may further discourage women from coming forward, as the publicity from their testimony may put their photographs in the spotlight and encourage more traffic to offending websites.

    Mary Anne Franks criticized the emotional distress provision, stating, "[t]his is a crime against the state ... so the victim should not have to show damages." (276) The problem with Franks' argument is that criminal law frequently requires prosecutors to prove the victim suffered some harm. (277) For example, in New York, to be convicted of assault, the state must prove the defendant caused physical injury to another, requiring the prosecutor to show physical injury in a victim. (278) The difference between the statutes in California and New Jersey is that New Jersey punishes the actual act of disseminating compromising photographs if the distributor knows he does not have permission. (279) California, on the other hand, focuses on punishing the same action only when it has negative results. (280)

    Another criticism of the California statute is the fact that the image must be taken "under circumstances where the parties agree or understand that the image shall remain private ...," (281) This may lead to disputes over what the parties' understanding was over the level of privacy the picture was to be afforded. (282) And in the confines of the intimate settings, where these photographs are usually taken, it is difficult to know what actually transpired between two parties. (283) As such, the California statute has too many pitfalls in order to be effective against the majority of revenge pornography...

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