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Criminalizing revenge porn: a quick guide

What is the issue?

nonconsentpornNon-consensual pornography is the distribution of sexually graphic images of individuals without their consent. This includes images that were originally obtained without consent (e.g. hidden recordings or recordings of sexual assaults) as well as images originally obtained with consentwithin the context of a private or confidential relationship (e.g. images consensually given to an intimate partner who later distributes them without consent, popularly referred to as “revenge porn”). Non-consensual pornography does not include images taken of individuals in public or of people engaged in unsolicited and unlawful sexual activity, such as flashing.

What is the harm?

Non-consensual pornography transforms unwilling individuals into sexual entertainment for strangers. A vengeful ex-partner or malicious hacker can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. Ina matter of days, that image can become the first several pages of “hits” on the victim’s name in a searchengine, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, andpeers. Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools. Some victims have committed suicide. Non-consensual pornography can destroy victims’ intimate relationships as well as their educational and employment opportunities. While non-consensual pornography can affect both male and female individuals, empirical evidence indicates thatthe majority of victims are women and girls, and that women and girls face more serious consequences asa result of their victimization. By violating legal and social commitments to gender equality, non-consensual pornography is similar to sexual harassment, rape, and domestic violence.

Isn’t this already illegal?

Only one state, New Jersey, currently treats non-consensual pornography as a crime in itself. Not every state has comprehensive anti-voyeurism laws, and even those that do only protect victims whose images were taken without their knowledge and consent, not victims who consented to give their pictures to one intimate partner for private use. Federal and state laws prohibiting harassment and stalking only apply if the victim can show that the non-consensual pornography is part of a larger pattern of conduct intended to distress or harm the victim, which does not apply to the many purveyors of non-consensual pornography motivated by a desire for money or notoriety.

Why can’t victims just sue?

Civil suits are costly, time-consuming, and bring further attention to the offending material. In addition, websites that distribute non-consensual pornography are given broadimmunity for civil liability under federal law (Communications Decency Act §230).

Criminalization is a serious step – is it justified?

Non-consensual pornography is an act of sexualuse without consent, that is, a form of sexual assault. It is also a serious invasion of privacy and infringement upon the freedom of private expression.

Does criminalizing revenge porn violate the First Amendment?

There is no constitutionally protected right to consume or distribute sexually graphic images of private individuals without their consent any more than there is a constitutionally protected right to distribute obscenity or to engage in threats, harassment, or defamation. A carefully crafted statute with exceptions for lawful activity (e.g. law enforcement or commercial practices) does not offend First Amendment principles.

Isn’t it victims’ own fault for making sexually graphic pictures of themselves available toother people?

In many cases, victims have not made the pictures available to anyone; some victims are sexually assaulted, some are not aware that they are being filmed, and some have had their private images stolen from them. Victims who do make their images available to an intimate partner are no more at faultthan a person who becomes a victim of identity theft after giving a waiter a credit card to pay for dinner, or a patient whose sexual dysfunction is publicly disclosed by the doctor he consults for treatment.

Why are both state and federal criminal laws necessary?

State criminal laws are necessary toaddress conduct that does not cross state lines. Federal law is necessary because state laws are limited bothby jurisdiction and by the Communications Decency Act §230, which creates high hurdles for either civilor criminal charges against website operators who distribute non-consensual pornography. Given that the Internet has greatly amplified the scope and harm of non-consensual pornography, an effective law mustal so reach Internet traffickers. Congress’s power to regulate interstate commerce (here, Internet activity) and the fact that CDA §230 does not shield websites from federal criminal liability means that a federal criminal prohibition is both appropriate and necessary to fully address the problem of non-consensual pornography.

What would criminal laws addressing this issue look like?

Model State Law

Whoever discloses 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 contact withoutthat person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the contextof a private or confidential relationship retains a reasonable expectation of privacy with regard todisclosure beyond that relationship.
(a) Definitions:
For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, ororal-anal, whether between persons of the same or opposite sex.
(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, criminal reporting, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

Model Federal Law

I. Whoever uses the mail, any interactive computer service, or any facility of interstate or foreigncommerce to engage in a course of conduct or travels in interstate or foreign commerce or within thespecial maritime and territorial jurisdiction of the United States to produce or disclose a sexually graphic visual depiction of an individual without that individual’s consent shall be fined under this title orimprisoned not more than one year, or both.
(a) The falsification of proof of consent shall be punishable by law.
(b) State Attorneys General shall have the authority to enforce the provisions of this law.
II. Definitions:
(a) “Disclosure” includes creation, distribution, publication, dissemination, transfer, sale, purchase,delivery, trade, offering, or advertising;
(b) “Sexually graphic” means revealing intimate areas of an individual or exposing an individual engagedin sexually explicit conduct;
(c) “Intimate areas” is defined as in 18 USC § 1801 [slightly modified]: “the naked genitals, pubic area,buttocks, or any portion of the female breast below the top of the areola”;
(d) “Sexually explicit conduct” as defined in 18 USC § 2256 [modified]: “graphic sexual intercourse,including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same oropposite sex”; and
(e)“Visual depiction” is defined as in 18 USC § 2256: “includes undeveloped film and videotape, datastored on computer disk or by electronic means which is capable of conversion into a visual image, anddata which is capable of conversion into a visual image that has been transmitted by any means, whetheror not stored in a permanent format.”
III. Exceptions:
(a) This section shall not apply to lawful and common practices of law enforcement, criminal reporting, orlegal proceedings.
(b) This section shall not apply to situations involving voluntary exposure in public or commercial settings.
Originally by Mary Anne Franks

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