Criminalizing "revenge porn"

As more people post naked pics of exes, the law has failed to keep up. Some activists are trying to change that

Published April 7, 2013 1:00AM (EDT)

                 (<a href=''>James Brey</a> via <a href=''>iStock</a>/Salon)
(James Brey via iStock/Salon)

Imagine a woman does a Google search on her own name and up comes a page featuring a naked photo that she sent to an ex-boyfriend. There are links to her Facebook, Twitter and LinkedIn account. In the comment thread, anonymous trolls critique every inch of her body. Perhaps her home phone number and address are also included. Say she contacts the local police in tears, only to be told that the post is perfectly legal -- or worse, that “boys will be boys.”

This is becoming an increasingly common scenario, activists say, given the proliferation of “revenge porn" and the legal system's failure to catch up with it.

A new bill in Florida is aiming to remedy that: It would make it a felony to publish online nude photos or videos of a person without their permission and along with identifying information. At the same time, activists around the country are petitioning for both state and federal laws to criminalize what they call “non-consensual porn.” A recent class action lawsuit filed by more than 20 women in Texas against revenge porn site along with its host GoDaddy has only turned the heat up on the issue.

It isn’t that victims are currently without recourse. “There are lots of laws that we can use on the civil side, from invasion of privacy to emotional distress to harassment and stalking,” says Erica Johnstone, co-founder of the nonprofit Without My Consent. There are problems with that approach, though. The Communications Decency Act protects website operators from liability for content submitted by outside parties; and most revenge porn sites are driven by submissions from users. What's more, the content in question is usually posted anonymously, so a subpoena is required for the website to reveal the IP address of the person who posted it. In the interest of preventing the plaintiff’s identity from entering court record, the case is typically filed as a Doe v. Doe lawsuit. “Presenting that to a state court is a new strategy that many state courts have not seen before and don’t necessarily know where to look in terms of precedent and guidance,” says Johnstone.

That isn’t to mention the cost: “It can cost tens of thousands before even proceeding to a judgment,” she says. Even in the case of a default judgment, she says, “These defendants are often judgment proof. They’re just basement-dwellers.” In other words, “they have nothing to lose, which is why they engage in this behavior in the first place,” she says. So, you might end up with a six-figure judgment that the plaintiff can never collect.

There’s much more leverage with criminal prosecution. “Even if people aren’t afraid of being sued because they have nothing to lose, they are afraid of being convicted of a crime because that shows up on their record forever,” says Johnstone. “A lot of times it’s the police and district attorneys that really have the leverage to stop this kind of behavior.”

But many don’t even realize it, says Danielle Citron, a law professor at the University of Maryland. “There are laws that we could enforce,” she says. “They could be pursued, but cops don't understand, they aren't trained. They just want women to turn off their computers.” It’s generally the victims who take their case all the way to the state legislature who see any progress in their case.

On the surface, the Florida bill seems a major step in the right direction, but several anti-revenge-porn activists are unsatisfied with it. Mary Anne Franks, a law professor at the University of Miami, says that the bill does get one thing right: “It's very good that it recognizes what I call ‘contextual consent’ -- the fact that a person might consent to be photographed or filmed in one context but not in another.” In other words, when a woman consents to having her boyfriend take a naked photo of her for his own enjoyment, she isn’t consenting to having him publish the shot on the Internet with links to her Facebook and LinkedIn profiles.

But she says the law is ultimately “both too broad and too narrow.” For example, the bill applies to "any photograph or video of an individual which depicts nudity,” but doesn't define nudity. It’s “an extremely broad formulation that could potentially include a photograph of someone standing next to a picture of Botticelli's Venus," says Franks. At the same time, it’s “a narrow definition, in that it would presumably not apply to depictions of graphic sexual activity unless certain parts of the body are visible,” she says. Franks tells me of an actual case in which a man ejaculated on his sleeping girlfriend’s face and then uploaded pictures to the Internet -- that would not violate Florida’s law.

The bill also makes exceptions for photos or video taken in public. “If a woman's skirt blows up in the wind and she is not wearing anything underneath, can an image of her be posted to an upskirt porn site?” asks Franks. “What about mothers breast-feeding in public? Is a public bathroom public? What about a changing room in a department store?”

There’s a tricky balancing act to be done here to adequately addressing the revenge porn problem without violating the First Amendment. “There’s a very fine line between invasion of privacy and free speech,” Johnstone says. Frank and other activists point to New Jersey's criminal invasion of privacy statute, which was used successfully in the Tyler Clementi case, as a good blueprint. The law criminalizes the photographing or filming and distribution of “the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.”

Frank points out that both federal and state laws already take it very seriously that pornography should be restricted to adults. As she wrote on the law blog Concurring Opinion, “It is time they took consent requirements seriously as well.”

By Tracy Clark-Flory

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