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A PICTURE IS WORTH A THOUSAND WORDS: THE ANTI-REVENGE PORN ACT

by Taryn Pahigian

 

Imagine one morning, after you grab your usual iced latte and are waiting for the 7 train to head to work on Madison Avenue, you check your Twitter and decide to peak at your ex-boyfriend’s Twitter account.  You unexpectedly find a naked photo of yourself on his page. Although it may be shocking, this scenario is not far-fetched in today’s digital world.  In fact, this happened to Adriana Batch.  Adriana’s ex-boyfriend posted nude photos of her on Twitter. To make matters worse, he also sent the photos directly to her sister and employer.  Adriana’s boyfriend engaged in what is known as revenge porn, and New York’s first revenge porn case ended with no punishment to the perpetrator.

Revenge porn is non-consensual pornography.  In other words, it is the distribution of sexually graphic images of individuals without their consent, and it includes images obtained both with and with
out consent.  Revenge porn encompasses three typical situations.  First, the nonconsensual distribution could be of a photo taken or created by the victim.  This is known as a “selfie.”  Second, the perpetrator could distribute a photo without the consent of the person depicted, but that he initially created with that person’s consent.  Third, the photo distributed could be one stolen from the victim as a result of hacking.  Regardless of the manner with which the image is created, the result remains the same.

A person’s intimate image, created, and sometimes shared, with the reasonable expectation of privacy, is exploited through nonconsensual distribution.

Revenge porn is harmful to the victims.  According to a study called, Love, Relationships, and Technology, one in ten ex-partners threatened to expose risqué photos of their ex-partners online, and 60% of those who threatened to expose intimate photos followed through with their threats.  Victims of revenge porn have reportedly lost jobs, been forced to change schools, changed their names, and have been subjected to real-life stalking and harassment.  Some victims have even committed suicide.

To illustrate the harms victims suffer, consider the story of Amanda Todd, a victim of revenge porn.  Amanda committed suicide at age 15, after years of cyber bullying that all started after a photo of her naked breasts was distributed over the Internet.  After electronically communicating with a man on Facebook, he flattered the vulnerable young girl enough to persuade her to flash her naked breasts on her web camera.  Not realizing the man on the other end of the computer was recording the intimate exchange, she was surprised and terrified to hear from an anonymous person one year later threatening to distribute the photo online.  Amanda changed schools multiple times and was teased, bullied, and beaten by classmates.  After she could not take the torture any more, she took her own life.

In response to revenge porn, especially as social media has skyrocketed, many states have enacted legislation to criminalize revenge porn.  New Jersey and California were the leading states in developing laws that accurately target and prevent revenge porn.  New York, lagging behind the other states, does not have any criminal law with the objective of preventing revenge porn and punishing the perpetrators.

Although states have enacted criminal laws punishing revenge porn, many critics argue that criminalizing revenge porn is too extreme and that victims can use tort laws to remedy their situations through monetary recovery.  On the contrary, existing tort laws such as defamation, intentional infliction of emotional distress, and public disclosure of private information, do not apply to the majority of revenge porn cases because victims are unable to satisfy required elements of the claims.  In addition, bringing civil lawsuits is expensive and victims often do not have the financial means to afford a lawsuit.  Another issue is that because much of revenge porn occurs online, often the victim cannot identify the person who posted the material in the first place.  Lastly, even if the victim can afford to bring the lawsuit and has identified the perpetrator, the perpetrators may be judgment proof.

Other critics argue that copyright laws are the best course of legal redress, but copyright laws are inadequate.  Often the victim is not the person who created the media being distributed. Instead, the perpetrator is likely to have been the creator.  Thus, the victim cannot sue for copyright infringement because the perpetrator is in fact the copyright holder.

In Adriana Batch’s case, People v. Barber, the State sought legal redress by charging the defendant with Aggravated Harassment in the Second Degree, Dissemination of an Unlawful Surveillance Image in the Second Degree, and Public Display of Offensive Sexual Material.  Although the defendant clearly sent the image of Adriana to her employer and sister and posted it on Twitter, the judge dismissed all three counts because all of the requisite elements of the crimes could not be satisfied.  Thus, New York’s existing criminal laws fail to provide legal redress in revenge porn cases because the facts often fall outside the scope of the existing laws, which is logical considering most of the laws were enacted before revenge porn became such a prevalent issue.

Therefore, to solve the issue, New York should amend its Penal Law to adopt the Anti-Revenge Porn Act.  Under the Act, a person will be guilty of revenge porn when he or she knowingly disseminates, without the consent of the person depicted, media of an identifiable person whose sexual parts are exposed or that depicts actions of a sexually explicit nature.  The crime will be a class A misdemeanor, meaning the crime is punishable up to one year in prison.

§ 250.80 Revenge porn in the second degree A person is guilty of revenge porn in the second degree when:

1. He or she knowingly disseminates a photo, film, videotape, recording, or any other reproduction of an image of an identifiable person whose sexual or other intimate parts are exposed or that depicts actions of a sexually explicit nature of another identifiable person without the person’s consent and if an individual would have a reasonable expectation of privacy.

The Act will also punish perpetrators who commit the crime with intent to cause distress or to obtain a profit, and these added elements will elevate the crime to a class E felony.  This structure of elevation is similar to other New York crimes, such as Dissemination of an Unlawful Surveillance Image, which elevates the crime to the first degree when the dissemination 1) is for the purpose of making a profit, 2) is with intent, or 3) occurs after the defendant has been convicted of Dissemination of an Unlawful Surveillance Image in the first or second degree within the past ten years.

§ 250.85 Revenge porn in the first degree A person is guilty of revenge porn in the first degree when:

1. He or she commits the crime of revenge porn in the second degree in violation of section 250.80 of this article, and has previously been convicted of that crime; or

2. With intent to cause serious emotional distress or humiliation, he or she knowingly disseminates a photo, film, videotape, recording, or any other reproduction of an image of an identifiable person whose sexual or other intimate parts are exposed or that depicts actions of a sexually explicit nature of another identifiable person without the person’s consent and if an individual would have a reasonable expectation of privacy; or

3. To obtain a profit, he or she knowingly disseminates a photo, film, videotape, recording, or any other reproduction of an image of an identifiable person whose sexual or other intimate parts are exposed or that depicts actions of a sexually explicit nature of another identifiable person without the person’s consent and if an individual would have a reasonable expectation of privacy.

Many argue that criminalizing revenge porn violates the First Amendment, but this is not the case.  Although the First Amendment protects freedom of speech, it is not without limits and exceptions.  For example, the First Amendment does not protect defamation.  Defamation occurs when one damages the reputation of another through false writings or words.  Similarly, revenge porn damages the reputation of another.

In fact, the harm caused by revenge porn can often be more permanent and damaging than the harm caused by defamation.  Defamation is typically a statement or writing, whereas revenge porn is usually in the form of a photo or video, which exposes more than a mere writing.  The result of revenge porn is worse because even if the victim is remedied through a civil lawsuit, or the perpetrator is punished with a criminal conviction, those who saw the media will always remember it.  At least if the victim wins a civil lawsuit in a defamation action, everyone who witnessed the writing or statement will then realize that it was actually false.  Because the harm caused by revenge porn is more permanent and damaging, it should be a crime.

In addition, revenge porn is somewhat similar to New York’s criminal law, Dissemination of an Unlawful Surveillance Image.  This crime punishes people who capture videos or images without consent.  The Anti-Revenge Porn Act will take that law a step further by punishing people who distribute media without consent that was initially created with consent.  This is also the reason that the law will be included in the Penal Law directly following the section, Dissemination of an Unlawful Surveillance Image.

Revenge porn is a growing issue and can cause serious harm.  It should not be offered First Amendment protection; it should fall into one of the categories of exceptions.  The Anti-Revenge Porn Act directly addresses the issue and adequately applies to the unique facts in revenge porn cases.

photo2As a community, we New Yorkers must come together and continue to speak up, advocating for this criminal law.

 

 

 

Taryn Pahigian is a fourth-year evening division law student at St. John’s University School of Law and a senior staff member for the Journal for Civil Rights and Economic Development. She is a candidate for J.D. in 2016 and will sit for the February 2016 bar exam. 

The pictures used herein and in the slider are not the property of the author and can be found at the following web addresses:

http://www.infoworld.com/article/2985721/application-development/hey-apple-were-you-hosting-hacked-copies-of-xcode.html

speak up

 

One Comment

  1. Oh, Awesome One. Full Of Information. Thanks.