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Will California criminalize revenge porn?

A new bill seeks to do just that -- but activists say it introduces a whole lot of problems


Tracy Clark-Flory
August 28, 2013 3:15AM (UTC)

Watch out, Hunter Moore. Revenge porn may soon be illegal in California. That's thanks to SB 255, which unanimously passed committee this morning. It would make it a misdemeanor to maliciously distribute naked photos of an identifiable person. Or, if you prefer legalese, it criminalizes:

... any person who, with the intent to cause substantial emotional distress or humiliation to another person, by means of an electronic communication device, and without consent of the other person, electronically distributes, publishes, emails, hyperlinks, or makes available for downloading nude images of the other person along with personal identifying information of the other person.

Crucially, this equally applies to cases where the naked person consented to having the photo taken (but not to it being shared with the world). Those convicted could face up to a year in jail and a $1,000 fine for a first offense.

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California isn’t the first state to consider such legislation. As I wrote earlier this year, New Jersey already has a relevant criminal invasion of privacy statute and similar legislation was proposed in Florida. Just as with the New Jersey bill, the California one “seeks to criminalize privacy invasions that would offend reasonable expectations of privacy in one’s nude photos,” says Danielle Citron of the University of Maryland School of Law, and allows for prosecution even when there isn’t evidence of harassment or stalking. The main difference with the California bill is that it focuses on people who are intending to harm someone with the publication of their nude image.

While a seemingly well-intended measure, it hasn't been without its critics. The American Civil Liberties Union objected to an earlier version of the bill on the grounds that it would apply to "constitutionally protected" material. The ACLU's Francisco Lobaco argued before committee, "Suffice it to say the posting of lawful even offensive speech is constitutionally protected, unless the speech violates an existing criminal law," he said. "The fact that it could be emotionally disturbing is protected by the Constitution." But the ACLU is not listed as an opponent in the latest version of the bill. In fact, the most recent draft comes with zero listed opponents.

That isn't to say that the bill is without its problems. In the Los Angeles Times, Patt Morrison lays out the legal complications involved with the bill: "It wades into the murky areas of the Internet and image ownership. As with an actual paper-and-ink letter, does the recipient of the photo own the actual physical picture but not the 'content,' and therefore the right to reproduce it anywhere? Is the owner of the photo the person who took it or the person who appears in the photo? What if it’s one and the same, a 'selfie'?"

Rather than argue that the bill is overly broad, Citron says the bill is too restrictive. “It does require that the defendant intend to inflict severe emotional distress, a limiting principle,” she says. “That principle is not needed to reconcile the statute with the First Amendment -- such photos can be seen as involving purely private matters that receives less protection and can even be seen as unprotected obscenity.”

Mary Anne Franks, an associate law professor at the University of Miami, agrees. “It is in fact too narrow to address many of the worst cases of non-consensual pornography,” she says. That’s because the bill requires the perpetrators act with “the intent to cause serious emotional distress." “This is an indefensible requirement, as many purveyors of non-consensual pornography can plausibly claim that they did not intend to cause serious emotional distress,” she says, pointing to “revenge porn traffickers like Hunter Moore” who say they are motivated instead by fame. Franks believes that “the intent of perpetrators is truly beside the point, in the same way that the intentions of rapists or sexual harassers is beside the point.”

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That the bill requires the victim to have undergone “serious emotional distress” only adds insult to injury, she says. “Every victim is different: Some victims are measurably traumatized by what they've experienced; some are not,” she says, and it’s hard to prove emotional distress. “Will she be forced to testify to undergoing therapy? Offer sensational accounts of her sexual anxiety or suicide attempts?” Franks believes that is only a further violation of the victim’s privacy.

Another problem: “The way the statute is worded, it would not apply to situations in which the victim took the photograph or video herself,” she says. That excludes a whole lot of revenge porn -- including consensual sexts that are later non-consensually reproduced online. Speaking of, what might this mean for the Anthony Weiners of the world (or at least California)? Might the publication of a politician's ill-advised crotch shot be deemed criminal on the grounds that it is shared maliciously?

It all just goes to show how difficult it is to legislate -- and how necessary. As Citron puts it, "The California bill is a step in the right direction in criminalizing nonconsensual pornography," she says. "One picture can go viral and ruin someone's life."


Tracy Clark-Flory

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