Thursday, September 5, 2013

“Revenge Porn”: Illegal?


Update: On October 1, 2013, Governor Jerry Brown signed California's revenge porn bill into law. On December 10, 2013, the Attorney General announced what was ostensibly the first revenge porn prosecution.



No one enjoys a breakup. Emotions run high. Former couples can exchange harsh words, and in this age, harsh electronic messages. It hurts enough to see a snarky comment from a scorned lover on Facebook. But it’s entirely different—and possibly criminal—for an ex to publicize sexual images of a former significant other. Unfortunately, with the proliferation of technology has come a trend in ex-lovers using “revenge porn” to harass and humiliate each other.

New Law?
In California, the state legislature is considering targeting revenge porn. The bill in question has already passed the state Senate and been debated in the Assembly. It would make revenge porn a misdemeanor, leading to up to six months in jail, a $1,000 fine, or both for a first violation. A subsequent offense, or a violation involving a victim who is a minor, would carry up to a year in jail, a $2,000 fine, or both.

The would-be law applies to consensual nude or semi-nude photographs or recordings that someone takes, then subsequently distributes. The crime wouldn’t cover such photos when they’ve been taken somewhere the subject doesn’t expect privacy, such as a nude beach. Nor does the law apply to images that the distributor didn’t personally capture—for example, distributing a “sext” an ex-girlfriend took of herself wouldn’t qualify.

Importantly, the proposed California law would make revenge porn a specific intent crime, meaning that the defendant is guilty only when having acted with a particular purpose. In this case, the person posting the illicit photos or videos would have to intend to cause “serious emotional distress” (and actually cause it) in order to be criminally liable.

New Jersey has a law that arguably applies to revenge porn, while Floridians tried (but failed) to pass a similar statute. Other states have debated analogous laws. But if the California bill becomes law, other states might follow suit.

Free Speech
Clearly, revenge porn proposals pit privacy concerns against free expression rights. Victim advocates argue they’re essential in protecting against severe emotional abuse. Opponents of these laws decry them as overly broad and worry that they’ll lead the way for other forms of free speech restriction. They also point to laws already on the books that may criminalize this kind of conduct, such as those that deal with harassment and cyberstalking.

The concern, of course, isn’t that these laws will be used to prosecute those who deserve it, but that they’ll also serve as tools to target politically or socially unpopular speakers. Some have evoked the scenario of newsworthy content being criminalized.

At this point, it’s tough to say whether the law would be effective—and fair. Most agree that revenge porn should be prosecuted. It’s just a matter of how that’s accomplished.