by Jay Marshall Wolman
Revenge porn is bad, and this blog has been active in fighting it. As a moral matter, it is a pretty easy thing to address. As a legal matter, it is not.
More and more states have been passing laws against revenge porn. California, for example, in 2013, added Penal Code Section 647(j)(4), The meat is in sub-subsection (A), which states:
Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
There are three exemptions in sub-subsection (D):
- The distribution is made in the course of reporting an unlawful activity.
- The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.
- The distribution is made in the course of a lawful public proceeding.
California’s law is similar to the model law of the Cyber Civil Rights Initiative, spearheaded by Prof. Mary Anne Franks. A Federal bill is expected to be introduced soon, with Prof. Franks’s involvement. Although of late I have had some concerns regarding Prof. Franks, we are likely on the same side of opposing revenge porn.
A similar Arizona law was recently put on hold for vagueness. So, too, do the California and model laws suffer from practical problems, and it is probably the case that, if the Federal bill follows the model, it will be defective. The problem is that there are many circumstances where it is entirely appropriate to share a picture or video of nudity or a sexual encounter, taken without consent, that does not fit among the exemptions, to wit:
- A woman suspects her husband is cheating and rigs up a motion activated camera in the bedroom. She records him in the act and shows her mother to get advice on what to do. She decides to stay with him. Two years later he files for divorce and the recording and the fact of sharing with the mother is revealed. Since her distribution two years earlier was not “in the course” of a public proceeding, she has no defense.
- A female employee has been harassed by a male supervisor. On more than one occasion, he has exposed himself to her and started playing with himself. She sets up a surreptitious recording on her cellphone and brings it to her union representative. She doesn’t want to file a formal complaint, so the union representative helps her arrange for a transfer. Notwithstanding the transfer, the harassment continues and she quits. The supervisor hears through the grapevine that the recording and sharing with the representative was discussed at the unemployment hearing. The distribution to the union representative was not a proper report of unlawful activity, so she has no defense.
- An employer suspects employee theft and sets up hidden cameras. Instead of theft, employee fraternization, violating company policy, is caught. The supervisor shares the video with the human resources manager. The employees are notified of the video during exit interviews. Again, no exemptions apply.
- A mother installs a nanny cam, suspicious of the new babysitter. One day, it catches the babysitter with her girlfriend getting intimate while the child naps. The mother shares it with the father, and the father mentions it while firing her. No exemptions.
- A couple decides to make an intimate video. During the encounter, he gets too aggressive, beyond their normal activities. She shares it with her therapist, who then mentions it in a later joint therapy session. No exemption applies.
Other scenarios exist as well. Even sharing photographs of unclothed infants could be deemed unlawful. In each scenario, there would be the expectation that the encounter, and therefore images thereof, should remain private. And, each of these scenarios might find the law unconstitutional as it prohibits parties from sharing information, the essence of free speech. In the ideal world, there would be no revenge porn, so it wouldn’t matter how well crafted the anti-revenge porn legislation was written. These are all plausible scenarios based on how people act in reality.
None of these scenarios are the ones that revenge porn activists are addressing. They are focusing on the run of the mill ex-lover who posts online nude photos or videos sent or taken (with knowledge or without) during the course of the relationship. Unfortunately, sweeping legislation is frequently overbroad or ill-considered.
