Revenge porn laws: Sample text for state lawmakers.

This Is the Exact Language States Should Use to Outlaw Revenge Porn

This Is the Exact Language States Should Use to Outlaw Revenge Porn

The citizen’s guide to the future.
Oct. 3 2014 11:10 AM
FROM SLATE, NEW AMERICA, AND ASU

All States Should Outlaw Revenge Porn

And here’s the language they should use to do it.

Photo by Anrodphoto/Thinkstock
Why is it legal in many jurisdictions to disclose a person’s nude image in violation of that person’s expectation of privacy?

Photo by Anrodphoto/Thinkstock

This essay is excerpted from Hate Crimes in Cyberspace, by Danielle Citron, published by Harvard University Press.

“Jane” allowed her ex-boyfriend to take her nude photograph because, as he assured her, it would be for his eyes only. After their breakup, he betrayed her trust. He uploaded her nude photo and contact information to a revenge porn site. Jane received emails, calls, and friend requests from strangers, many of whom demanded sex.

After the frightening calls and emails intensified, Jane went to her local police department. Officers told her that nothing could be done because her ex had not engaged in a harassing “course of conduct.” One post amounted to an isolated event, not a pattern of abusive behavior. Officers pointed out that her ex had neither threatened physical harm nor solicited others to stalk her. And, the officers noted, because Jane had permitted her ex to take the photo, he could do what he wanted with it.

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Things might have been different had her ex secretly taken the photo. In that case, charges for “unlawful surveillance”—the secret recording of someone’s nude image—might have been appropriate. But it was legal to publish the nude photo taken with Jane’s consent, even though her consent was premised on the promise that the photo would be kept private.

Why is it legal in many jurisdictions to disclose a person’s nude image in violation of that person’s expectation of privacy? A combination of factors is at work. One stems from the public’s ignorance about so-called revenge porn. As brave individuals have come forward to tell their stories, we are only now beginning to understand how prevalent and damaging revenge porn can be. Another reason is that society has a poor track record addressing harms primarily suffered by women. It was an uphill battle to get domestic violence and workplace sexual harassment recognized as serious issues. Because revenge porn impacts women far more frequently than men and creates far more serious consequences for them, it is another harm that society is willing to minimize, trivialize, and tolerate. Although most people today would recoil at the suggestion that a woman’s consent to sleep with one man can be taken as consent to sleep with his friends, this is the very logic of revenge porn apologists.

Consent does not operate as an on/off switch. When an individual shares confidential information with a financial adviser, that person does not expect the information to be shared with an identity thief. When an individual confides her HIV-positive status with a support group, she neither expects nor by implication permits the group’s members to tell her employer about her medical condition. What individuals share with lovers is not equivalent to what they would share with the world.

The nonconsensual sharing of an individual’s nude photo should be no different: Consent within a trusted relationship does not equal consent outside of that relationship. We should no more blame individuals for trusting loved ones with intimate images than we blame someone for trusting a financial adviser or support group not to share sensitive personal information with others. Lawmakers have long recognized the importance of context to the sharing of sensitive information. For instance, Congress passed the Gramm-Leach-Bliley Act to ensure that financial institutions do not share customers’ financial information with third parties unless customers give their explicit permission.

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A few states have, in fact, banned revenge porn. New Jersey was the first. In 2004 it adopted a criminal invasion of privacy statute prohibiting the disclosure of someone’s sexually explicit images without that person’s consent. Under New Jersey law, an actor commits the crime of invasion of privacy if, “knowing that he is not licensed or privileged to do so, he discloses any 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.” The crime carries a prison sentence of between three and five years and monetary penalties of up to $30,000. In one case, a New Jersey man was convicted of invasion of privacy for forwarding his ex-girlfriend’s nude photos to her employer (a school), stating, “You have an educator there that is ... not proper.”

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Thirteen other states have now criminalized invasions of sexual privacy. In 2013 California made it a misdemeanor to distribute a consensually taken sexually explicit image of a person with knowledge the person expected the image to be kept private and with intent to cause the person substantial emotional distress. At its adoption, the law did not cover nude images that victims took of themselves, which limited its effectiveness: A recent study found that 80 percent of revenge porn cases involve self-shots that victims shared with intimate partners with the understanding that the images would be kept private. California lawmakers recently amended the statute to fix that flaw, extending the law to self-shots.

Civil liberties groups worry that that if revenge porn laws “aren’t narrowly focused enough, they can be interpreted too broadly.” Digital Media Law Project’s Jeff Hermes has expressed concern that revenge porn laws might criminalize speech in which the public has a legitimate interest. Both of these concerns can be overcome with clear and narrow drafting.

Revenge porn laws should apply only if a defendant disclosed another person’s nude image knowing that person expected the image to be kept private and had not consented to the disclosure. By clarifying the mental state in this way, legislation would punish only knowing betrayals of someone’s privacy. Carelessly or foolishly posting someone’s nude image would not constitute criminal behavior. It would not be a crime, for instance, to repost a stranger’s nude photos having no idea that person intended them to be kept private.

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To give defendants clear notice about the conduct covered under the statute, revenge porn legislation should specifically define its terms. Defendants need to understand what is meant by the term sexually explicit so they understand the kind of images that are covered. Lawmakers should also make clear what they mean by the term disclosure—lawmakers should define it as showing the image to a single other person, rather than requiring broader distribution. When a perpetrator sends a victim’s nude image to her employer, the victim’s career can be irrevocably damaged and his or her emotional well-being destroyed.

Given the common misunderstandings about consent, revenge porn legislation should make clear that giving someone permission to possess a sexually explicit image does not imply consent to disclose it to anyone else. Recall what law enforcement initially told Jane: that because she permitted her ex to take her nude photo, he owned it and could do what he wanted with it, including publish it online. Clarification about consent would help prevent outmoded social attitudes from interfering with the law’s enforcement.

In addition to being clear about the activities covered by revenge porn laws, lawmakers should clarify the activities that fall outside them. Legislation should exclude sexually explicit images concerning matters of public importance. Consider the case of the former New York Representative Anthony Weiner, who shared sexually explicit photos of his crotch with women to whom he was not married. On one occasion, Weiner sent unsolicited images of his penis to a college student whom he did not know personally. His decision to send the images to the student sheds light on the soundness of his judgments. The public interest exception, however, may not arise often because most revenge porn victims are private individuals.

The last issue is the penalty for revenge porn convictions. If legislation treats the nonconsensual disclosure of someone’s nude image as a misdemeanor, it risks sending the message that the harm caused to victims is not severe. At the same time, overly harsh penalties might generate resistance to legislation, especially among free speech advocates who generally oppose the criminalization of speech. Categorizing revenge porn legislation as a misdemeanor sends a weak message to would-be perpetrators and would be a less effective deterrent than a felony. Lesser penalties may, however, ease the passage of proposed bills.

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A model state law might read:

An actor commits criminal invasion of sexual privacy if the actor intentionally discloses an image of another person whose intimate parts are exposed or who is engaged in a sexual act, knowing that the other person expected the image to be kept private, under circumstances where the other person had a reasonable expectation that the image would be kept private. That the other person has consented to the possession of the image by the actor does not imply consent for the actor to disclose that image more broadly.

Definitions:

(1)       “Disclosure” or “disclosing” means to make available to another person or to the public.

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(2)       “Image” includes a photograph, film, videotape, digital reproduction, or other reproduction.

(3)       “Intimate parts” means the naked genitals, pubic area, anus, or female adult nipple of the person.

(4)       “Sexual act” includes contact, whether using a body part or object, with a person’s genitals, anus, or a female adult nipple for the purpose of sexual gratification.

The statute does not apply to the following:

(1)       Lawful and common practices of law enforcement, criminal reporting, legal proceedings; or medical treatment; or

(2)       The reporting of unlawful conduct; or

(3)       Images of voluntary exposure by the individual in public or commercial settings; or

(4)       Disclosures related to the public interest.

As a crucial companion to state efforts, Congress could ban invasions of sexual privacy. That would provide legal protection against invasions of sexual privacy in cases where the states either failed to pass legislation or state law enforcement refused to act. One possibility is to amend the federal cyber stalking law along the same lines as the model state law. A key innovation would be the inclusion of a takedown remedy. If federal cyber stalking convictions were accompanied by court orders to remove nude photos posted without subjects’ consent, the law would respond directly to victims’ continued harms rather than acting as just a tool of deterrence and punishment.

My proposed revenge porn statute would withstand constitutional challenge. Disclosures of private communications involving nude images do not enjoy rigorous First Amendment protection. They involve the narrow set of circumstances when the publication of truthful information can be punished.

Protecting against the nonconsensual disclosure of private communications, notably the sharing of nude images among intimates, would inhibit a negligible amount of expression that the public legitimately cares about, and it would foster private expression. Maintaining the confidentiality of someone’s sexually explicit images has little impact on a poster’s expression of ideas. Revenge porn does not promote civic character or educate us about cultural, religious, or political issues. On the other hand, the nonconsensual disclosure of a person’s nude images would assuredly chill private expression. Without any expectation of privacy, victims would not share their naked images. With an expectation of privacy, victims would be more inclined to engage in communications of a sexual nature. In fact, such sharing may enhance intimacy among couples and the willingness to be forthright in other aspects of relationships.

Adapted from Hate Crimes in Cyberspace by Danielle Keats Citron, published by Harvard University Press. Copyright © 2014 by the President and Fellows of Harvard College. Used by permission. All rights reserved.