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By Eric D. Anderson

When Neil Sedaka wrote the song “Breaking Up is Hard to do”, he had no idea how hard it could be in the internet age. Break-ups are tough enough without worrying about sexual photographs of you displayed throughout the internet. But, today that has become a real concern for many. State legislators around the country are working to curtail this fear by creating laws that will effectively punish anyone who publishes sexually explicit images without the victim’s consent.  The passing of California Senate Bill 255 represents a new step in the fight against “revenge porn,” often called “involuntary” porn. 

What is Revenge Porn?

Revenge porn is a product of the internet age we currently live in, complete with immediate access to smart phones and other mobile devices. Revenge porn is essentially the posting of sexual photos of an ex-lover online as an act of vengeance after the relationship goes sour. These photos, typically taken during the course of the relationship, are exchanged via mobile devices or taken exclusively by the person posting the photos. Photos of this nature are often published with personal information about the victim attached to the photo.

Over the last decade, websites have emerged which make money from these shots. Women are primarily the victims of these websites though some men are also targets. These photos do more than just humiliate the victim, but have the potential to affect every aspect of the person’s life, including their work and family. 

The Need for Legislation

Revenge porn has unfortunately become an easy way for ex-lovers to humiliate their former lover in the most shameless of manners. Many couples exchange sexual photos of one another during the course of a relationship that are meant to be for “their eyes only.” Unfortunately, these couples do not consider the possibility of a future break-up. Because most relationships eventually do end prior to death, this means those people are not playing the odds. The other partner often reassures them that they will keep the photos secure and will never show them to anyone. However, stories have emerged over the last few years assuring us that break-ups never go as smoothly as we think they will, and one partner often hotly turns to the internet to display their anger. As William Congreve wrote, “Heaven hath no rage like love to hatred turned”

Once these photos are posted on the internet, victims are left without legal options to pursue civil or criminal charges against their ex-lovers. Despite the fact that pornographic images of themselves found their way on the internet, victims have no ability to take those photos down. And local police have no basis to charge the distributors with any crimes. Images are often tied to the victim’s name, or even the address and phone numbers. Many sites have the audacity to offer a “reputation protection service” which forces victims to pay a fee in order to take down their photo.

Law enforcement officers are unsure how to respond when revenge porn cases emerge.  Specific laws are on the books in regards to anti-harassment and cyberstalking, but revenge porn does not fit into either of these categories unless exigent circumstances are present. Victims can attempt to sue under civil statutes, but this often means high legal bills and no assurance that the case or settlement will be in their favor. Several states have begun to enact laws that directly target revenge porn and offer the potential for criminal prosecution.

However, revenge porn legislation does not take into account sexual photos that minors distribute. These scenarios involve a host of other legal issues that can result in child pornography charges, even if the photos are distributed among middle and high school students themselves. If you are found distributing or in possession of sexual photos of an underage teenager, you run the risk of prosecution not under revenge porn laws, but under more serious criminal charges that can result in years in prison. 

California Senate Bill 255

California became the newest state to pass a law against revenge porn in October of 2013, making it the second such state legislation throughout the country. The law essentially provides that a distributor of revenge porn faces up to six months of jail time and a fine up to $1,000. 

However, the bill is not without its weaknesses. The new bill only applies when the person accused of distributing the photographs is also the original photographer. Therefore, if an individual takes photos of themself and exchanges them with their partner, the partner who receives the photos will not be criminally liable for posting the photos online at a later date. This is especially problematic after a recent survey by the Cyber Civil Rights Initiative found that up to 80% of revenge porn victims took the photographs themselves. Therefore, under California Senate Bill 255, the majority of revenge porn victims will not be able to seek criminal charges against the distributer if the photos were self-taken.

The Future of Revenge Porn

The passing of Senate Bill 255 in California has encouraged other states to consider comparable measures in order to protect victims of revenge porn. New York is considering similar revenge porn legislation which would make it a Class A misdemeanor to distribute non-consensual sexually explicit images, including photos taken by the victims. 

However, the bill and others similar to it, is not without its critics. Many organizations such as the ACLU have cited concerns that such legislation infringes on First Amendment rights to free speech.   These concerns have prevented other states from passing similar legislation

Additionally, any new legislation will have no impact on current photos on revenge porn websites, which can claim protection under the Communications Decency Act. This Act shields websites that host third-party content from liability unless the content violates federal law. But, in the battle between rights to privacy, the First Amendment and government power, the Communications Decency Act now finds itself under fire

Civil Remedies for Revenge Porn Cases

Victims of revenge porn often look to civil remedies if their state has no criminal penalties to punish the distributor or if the distributor was not found criminally guilty. Revenge porn civil cases can lead to a variety of potential remedies for someone who the distributor may have harmed. Civil remedies depend on the severity of the offense itself and the evidence of the distributor’s malicious intent. Because civil cases require a lower burden of proof, civil law may serve as an important secondary solution for victims of revenge porn. Check back for our future posts in which we explore the full extent of civil remedies a victim of revenge porn is entitled to.  

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