Cyber Sexual Misconduct: The Evolution of Sexual Privacy Laws and Best Practices for Representing Victims

If there is one area of the law that has expanded exponentially in the past decade, it is cyber sexual offenses. The explosion of the digital era has brought with it a new set of norms, including new ways in which people can harm others, especially in an intimate or sexual manner. No longer does one need to be face-to-face with, or have intimate access to, someone to exploit that person’s body, privacy, or intimate behaviors. Novel statutes have been enacted that respond to these trends, along with new language and terminology used in our modern society to explain these behaviors. Phrases like “revenge-porn” and “sextortion” are becoming more mainstream and commonly spoken among the most varying groups of people: from pre-teens in social circles experimenting with the latest terms and behaviors, to judges who are required to oversee litigation in the newest area of cybercrime. These phrases have actual meanings and associated legal terminology that can substantiate both criminal offenses and civil actions.

As this area of the law continues to evolve and expand, it is critical for attorneys and practitioners to become acquainted with the terminology and conduct that supports the filing of criminal charges, a civil lawsuit, a complaint on a college campus, or a violation relating to employment. As much of this litigation involves harm of a private, intimate, or sexual nature, victims oftentimes may be suffering from emotional trauma and be at a loss on how to seek justice. Accordingly, attorneys representing these victims must be educated and trained in the best practices, which include legal representation in a compassionate and responsive manner, such as trauma-informed lawyering, to be able to provide the most effective advocacy. Attorneys with experience in cyber sexual abuse can offer accurate and reliable information to people who may be unaware that there are legal options for them and help them to navigate those options in the legal system. Additionally, more experienced attorneys have the power to spread awareness regarding cyber sexual misconduct to prevent an increase in violations of sexual privacy, in addition to achieving justice for those who have been harmed.

The Evolution of Cyber Sexual Laws

Laws of a sexual nature have existed as long as Penal Codes have existed. Crimes for behaviors including rape, sexual abuse, incest, and child molestation have long been integrated in state criminal codes. To establish proof of these offenses, an allegation must be made that the offender was present with the victim for the actus reus, the legal element requiring a voluntary physical action, to occur. Thus, exploitation of a sexual nature required a per se face-to-face encounter between the perpetrator and the victim. In addition to physical presence, physical contact between the two also was required to be alleged and proven.

At the beginning of the technological evolution and the creation of cameras and videography equipment, our modernized society observed an expansion of the types of behaviors that can violate a person’s sexual privacy. In response, sexual privacy laws were enacted, beginning with federal legislation. Protection of Children Against Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7 (1978). Statutes forbidding the creation, possession, and distribution of child sexual abuse material (often referred to as “child pornography”) came into existence. In general, these statutes prohibit the photography of children and young teenagers while nude, engaging in sexual activity, or simulating sexual activity. While the taking of these images required the victim and perpetrator to be present together, the acts of distributing the images to others or possessing the images does not. This marked the first occurrence that a person’s sexual privacy could be violated without that victim being present during the commission of the offense. That is, the dissemination of an inappropriate image from one person to another does not require the victim’s presence. In response to the use of computers to distribute and receive child pornography, federal statutes followed in response. Child Protection and Obscenity Enforcement Act of 1988, Pub. L. No. 100-692, 102 Stat. 4181, 4485.

Continuing evolution of technology, especially in forms of communication, enabled these behaviors to significantly increase. The invention of digital cameras, computers with cameras, electronic mail (email) with photograph attachment capability, and mobile and cellular telephones with cameras gave rise to the potential for more severe violations of people’s sexual privacy. This allowed for an onslaught of new ways of taking and storing photographs and videos. One could take hundreds of photographs within seconds and store all of them in one device and share them electronically. There was no longer a need for camera film, paper prints, or third-party printing. Further, with the use of these new devices, people had the ability to easily communicate with one another, and find people with similar criminal interests, which included sending inappropriate or illegal images to one another. Communication and distribution of images became instantaneous. People began sending emails with photographs and videos attached, text-messaging images and videos, and uploading the same onto websites that can be accessed by millions of people. As a result, a nude or embarrassing image of one person could reach hundreds or thousands of viewers within seconds. Finally, with the creation of social media platforms, such as Facebook, Instagram, Tik-Tok, Snapchat, and YouTube, the posting and distributing of naked or sexual images and videos potentially reaches millions of viewers instantaneously. As a result, cyber sexual misconduct has increased exponentially.

Aside from the increase in cybercrimes, traditional non–cyber sexual and criminal behaviors have been made significantly easier for perpetrators with the use of technology, the internet, and social media platforms. For example, the crimes of sex trafficking, forced prostitution, stalking, domestic violence, possession of child sexual abuse material, and the luring of children with the intent of committing an offense, such as a murder or sexual offense, have become considerably easier when the perpetrators can effectuate them with the use of advanced technology and communication. According to the Polaris Project, a leading nonprofit organization combating human trafficking, for sex trafficking offenses alone, social media can be used to identify and locate potential victims, recruit victims, conceal identities of perpetrators and victims, communicate with others within the trafficking organization, monitor victims and trafficking operations, and coerce victims into remaining within the organization.

This evolution of technology and the internet has affected other areas of litigating sexual offenses. Prior to the availability of modern technology, knowledge of the details of traditional sexual offenses often were limited to the victim, law enforcement and attorneys, and, for a small percentage of cases, any publicity associated with the media or courts. Print photographs were kept within the control of attorneys and judges. Statutes were created to keep these vulnerable victims’ names from being printed in the media to protect them from widespread publication of their identities. The very same type of victim to whom legislatures sought to offer more protection are the same victims being hurt by the modern usages of technology and social media. With the existence of modern technology, victims of cyber sexual misconduct often become exploited in a much more public manner and can feel victimized repeatedly as more and more people become aware of the offense, or even see or download the evidence of it. Once an image or video is publicly shared, there are significant difficulties in removing the content. Oftentimes, the purpose of the offense itself is to exploit the victim’s sexual privacy to the public in a form of revenge, threat, shame, or embarrassment. There are several new behaviors and correlating statutes for these emerging types of offenses. Each of these behaviors has an associated colloquial term that has been used in informal conversation, with a corresponding legal term of art and statute.

• “Revenge porn” is a colloquial phrase used to describe the dissemination of private sexual images without consent. It is formally known as “non-consensual distribution of intimate images” (NCDII). The internet, social media, cellular phones, and computers are used for dissemination, or sharing, of the images. This offense can be committed with images taken with or without the consent of the person depicted. When taken without consent, images of this nature could result from the use of a hidden camera, threat of force, coercion, or false promises. When taken with consent, the images are often taken by the depicted person or with permission granted to another person. However, distributing the images occurs without consent. For example, the images may have been taken and produced within the context of a consensual intimate relationship but distributed at some point without consent. The phrase “revenge porn” is problematic because it mischaracterizes the behavior. The term “porn” or “pornography” refers to the consensual creation and distribution of explicit content. Further, although the word “revenge” is used in its colloquial phrase, the dissemination of these types of images or videos may not be done for revenge purposes. It also could be done for power, control, exploitation, entertainment, notoriety, or profit. When done for the purpose of revenge, vengeance can take on many forms, such as embarrassment or shame of the victim and/or the victim’s family, the loss of potential future intimate relationships, and the loss of employment or status in their communities. Disseminating “revenge porn” has increased together with the creation of technology and social media platforms and can have devastating emotional impacts on victims. In response, nearly every state in the United States has criminalized this behavior in recent years, as well as provided for potential recourse in civil actions. For example, the state of New York has created a criminal statute called Unlawful Dissemination or Publication of an Intimate Image, a class “A” misdemeanor, which could result in a maximum of a one-year incarceration sentence and the issuance of an Order of Protection for the victim from the offender. Under New York’s Civil Rights Law, a victim of revenge porn also has a cause of action that could result in various forms of damages. These types of laws, which did not exist just a few years ago, provide some form of legal recourse for victims.
• “Sextortion” refers to the act of extorting or demanding money, favors, demands, or additional sexual content from a person by threatening to disseminate evidence of the victim’s private sexual activity or intimate images. Sextortion cases can exist with just one individual victim or as part of a larger scheme involving many victims. For example, there are a growing number of minors becoming victims of sextortion online who are threatened on social media or messaging platforms with the potential of having sexual images of themselves released unless they send the perpetrators additional images or money. This conduct has been successful in eliciting images or payment from the minors even when no initial images of the child, which is the basis of the initial threat, are in existence. According to the Federal Bureau of Investigation (FBI), sextortion of minors online has resulted in a significant increase in teenage suicides, as well as other emotional harm, particularly to males ages 14–17. Sextortion-related conduct can be charged under general extortion statutes, as well as any other charges that may be substantiated due to the nature of images, threats, monetary payments, and endangering the welfare of children. These offenses can be charged under state law or federal law, depending on the exact nature of the conduct.
• “Doxing” is the malicious publication of a person’s private documents or information on the internet without their consent. Doxing can include the posting of someone’s full name, date of birth, social security number, phone numbers, addresses, employment information, financial records, and criminal history reports. It also can extend to content of an intimate or sexual nature, including personal communications, photographs, videos, medical records containing sexual information, information from dating websites, or other embarrassing content. The harm caused by the revelation of a person’s private information can be devastating and can lead to further victimization. For example, if a person’s contact information is revealed, that person can become a target for additional offenses.
• “Cyberstalking” involves the use of the internet and electronic devices to repeatedly stalk, track, monitor, follow, threaten, harass, intimidate, or contact another person, especially after the perpetrator has been told to cease. Cyberstalking gives offenders greater access to the victim’s life, including knowledge of the victim’s locations, activities and schedule, and identity of their family, friends, and associates. It is important to note that perpetrators can easily mask their identities on social media platforms, and even assume someone else’s identity, so victims may not be aware that the stalker has access. For example, the victim may “block” or prevent the stalker from accessing the victim’s social media accounts under the stalker’s true identity. However, if the stalker creates an account using the name and image of a mutual friend, the victim may allow unknowing access to the stalker, believing that the account belongs to the mutual friend. Just like the internet turned bullying into a 24-hour offense via text-messaging and social media communications, these advancements in technology allow the crime of stalking to be perpetuated in a nonstop cycle as well.
• “Cyberflashing” is a lesser-known term that involves sending intimate images or videos to an unsuspecting person who neither requested, solicited, or was aware such an image was being sent or received. Depending on the circumstances, the recipient may become shocked, humiliated, or traumatized by the image or video that was unexpectedly received. This behavior could be especially harmful to unsuspecting teenagers or children, as they may not be familiar with seeing such images or have the knowledge or experience to process them properly. While this behavior may be criminalized for the act of sending the images under Unlawful Dissemination statutes, where the person depicted in the image is the victim, there are very few states that recognize the unsuspecting recipient as a victim with rights under civil or criminal law.

Best Practices for Lawyers

As a result of the evolution of cyber sexual misconduct, attorneys who practice law in this area must become educated on the conduct, terminology, technological aspects, and related statutes. One of the best ways to learn is from attorneys and practitioners who have had the opportunity to gain experience. Experienced attorneys may have advocated for the creation of statutes, educated others on these new behaviors, represented victims, and developed an understanding for the way that social media and the internet are used to commit these offenses. Oftentimes, experienced attorneys have been involved in criminal prosecutions of these offenses and have filed civil lawsuits seeking recourse for these victims. In the time that cyber sexual misconduct has developed and increased, so have best practices for lawyers. The following section is devoted to those practices that have been most effective in representing victims of these offenses and navigating criminal and civil legal systems for remedies.

Recognize the Prevalence of Cyber Abuse

One of the first steps in addressing cyber sexual misconduct and abuse is to recognize how prevalent it has become. Cyber sexual abuse, which includes actions and behaviors such as nonconsensual sharing of intimate images, sextortion, doxing with sexualized content, and harassment through digital platforms, has become alarmingly common. A 2021 study by the Pew Research Center found that 33% of women under 35 have experienced online sexual harassment,including unwanted explicit messages or being sent sexually explicit images without consent. Emily A. Vogels, The State of Online Harassment, Pew Rsch. Ctr. (Jan. 13, 2021). Additionally, 1 in 12 Americans has had intimate images shared online without their consent, with women being disproportionately targeted by nonconsensual intimate image abuse. Asia A. Eaton et al., 2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration (Cyber Civ. Rts. Initiative 2017). Understanding this prevalence is crucial. It not only helps attorneys empathize with clients facing such abuse but also empowers those involved to recognize when digital abuse is a component of broader patterns of domestic violence, stalking, or other criminal behavior and how to address them.

Appreciate the Extent of Harm Caused by Cyber Abuse

Cyber sexual abuse is not just a digital problem. It has profound and far-reaching impacts on victims’ lives. According to consistently published articles by the American Psychological Association, the harm extends well beyond the virtual realm, affecting victims’ mental and emotional health, physical safety, financial stability, and overall well-being. Victims often experience severe emotional distress, including anxiety, depression, and post-traumatic stress. Many report feelings of shame, isolation, and fear, particularly if the abuse involves threats to share intimate images with employers, family members, or their community. Some victims are even forced to change their living situations, jobs, or social circles to escape ongoing harassment and abuse. Moreover, the financial repercussions can be devastating. Victims may face costs associated with identity theft, online reputation management, or even legal fees to remove explicit content. For others, the abuse can escalate into stalking or physical violence. This demonstrates the critical need to take these crimes seriously from the outset. By understanding the tangible and intangible harms caused by cyber sexual abuse, lawyers can better advocate for their clients, pursuing remedies that address not just the immediate issues but also the long-term consequences.

Acknowledge and Confront Biases

Recognizing the serious harm cyber sexual abuse causes underscores why lawyers must confront and set aside any personal biases that could undermine the ability to help victims. This is particularly important because cultural narratives regarding technology and sexuality often lead to victim-blaming or minimizing the severity of these crimes. For instance, one might hear and even subconsciously internalize statements like, “Why did they take those pictures in the first place?” or “They should have been more careful about their online presence.” Such biases not only risk alienating victims but also perpetuate the stigma that prevents these individuals from seeking help in the first place. It is critical to remember that cyber sexual abuse is not the victim’s fault. These crimes are deliberate acts of power and control, often designed to humiliate, intimidate, or silence. A lawyer’s role is to provide support and advocacy without judgment. This means approaching every case with empathy, focusing on the harm caused by the perpetrator’s actions, and reinforcing to clients that they are not to blame. By setting aside biases, attorneys can position themselves as better advocates, not only in providing legal remedies but also in helping clients feel heard, validated, and empowered to seek justice.

Practice Trauma-Informed Lawyering

Trauma-informed lawyering is an essential component of working with survivors of cyber sexual abuse, as these individuals often face severe emotional distress from the invasion of their privacy. Attorneys should focus on creating a safe and supportive environment and specialized interviewing techniques, with a focus on minimizing the risk of re-traumatization. Studies in trauma-informed practices show that victims experience greater satisfaction and better case outcomes when attorneys apply trauma-sensitive techniques. This approach can be particularly helpful in cases involving cyber sexual abuse. This involves:

• Proper Preparation: Victims may be triggered by recounting their experiences in interviews, depositions, or court testimonies. Attorneys can work to mitigate this by preparing clients thoroughly and allowing them to express their boundaries and concerns.
• Creating Safe Spaces: Meeting in private, comfortable settings and allowing clients to control the pace of discussions foster trust. Attorneys can provide an environment that increases comfort and access to materials that victims may need.
• Collaboration with Mental Health Professionals: Building partnerships with trauma therapists and counselors can provide clients with additional support outside the legal process, enhancing the effectiveness of trauma-informed representation.

Collect and Preserve Evidence

Attorneys must remain mindful about the collection of evidence in cases of cyber abuse, which generally is the electronic content itself. Victims often have an instinct to delete harmful, frightening, or embarrassing messages or content immediately. Victims and clients should be encouraged to pause and to not delete or manipulate any content. They should be advised to take measures to preserve the relevant evidence, such as screenshots, pictures, videos, URLs, emails, and other digital communications, as these can provide crucial details about the abuse and identity of the perpetrator. Metadata, including timestamps, IP addresses, and device information, can be helpful in identifying the source of the abuse and establishing a timeline. If a client expresses feeling unsafe or uncertain about collecting these data, it is essential to involve a digital forensics expert. These professionals can securely preserve evidence without compromising its integrity, ensuring it remains admissible in court and providing an additional layer of support for the client during this challenging process. Sending a preservation letter to the offender is another helpful step in cases involving cyber sexual abuse. This type of letter places offenders on formal notice that they are legally required to retain all evidence, including digital communications, images, videos, and metadata, in anticipation of litigation. This measure is meant to prevent the destruction or alteration of evidence, which could otherwise hinder a client’s case. Additionally, working with law enforcement to secure and search the offender’s devices can uncover critical evidence, such as deleted files, communication records, or patterns of abusive behavior. A forensic analysis of these devices often can reveal hidden or encrypted data that may strengthen the case against the offender. These proactive measures ensure that all relevant evidence is preserved and can be effectively used to support a victim’s pursuit of justice.

Protect the Client’s Privacy

Advocating for protective measures is essential in cases of cyber sexual abuse to safeguard a client’s privacy and prevent further harm and victimization. Attorneys may request the use of pseudonyms in court filings and seek orders to seal sensitive information, ensuring that the client’s identity and personal details remain confidential. Additionally, attorneys should remain vigilant about minimizing unnecessary exposure of explicit material by carefully limiting its sharing with law enforcement, the court, or other parties. These procedures not only protect a client’s dignity but also reduce the risk of repeated traumatization or additional misuse of the sensitive content involved in the case.

Consider Filing Criminal Charges

Attorneys may consider the filing of criminal charges against the perpetrator. Attorneys must remain educated on the state and federal criminal laws that apply, help preserve the evidence and provide it to law enforcement, and advocate for a thorough and proactive criminal investigation. If necessary, and because this remains an evolving area of criminal law, attorneys may need to educate officers about the unique dynamics of cyber sexual abuse, which they may not fully understand. Establishing clear and frequent communication channels with law enforcement ensures that the case progresses efficiently and that the client remains informed throughout the process, fostering trust and transparency. Additionally, attorneys must be prepared to address the jurisdictional challenges that often arise in cybercrime cases. Since these crimes frequently cross state lines or even international boundaries, identifying where the offense occurred or where the perpetrator resides is essential to determining the appropriate venue for prosecution. Navigating these complexities effectively can help ensure that the case is pursued in a jurisdiction where the strongest legal remedies are available, maximizing the likelihood of a successful outcome.

Seek Remedies in Civil Lawsuits

Civil lawsuits offer additional recourse for victims, allowing them to seek damages, protective orders, and injunctive relief. Attorneys can pursue claims for invasion of privacy, intentional infliction of emotional distress, and defamation, which are all common causes of actions in varying cases. Many states have specific civil actions for the nonconsensual distribution of intimate images and there is a civil claim under the Federal Violence Against Women’s Act, 15 U.S.C. § 6851. Additionally, many states have laws that allow plaintiffs to ask courts to order websites and platforms to remove content. Attorneys can help their clients remove content by requesting removals according to websites’ policies and terms of use, and by submitting Digital Millenium Copyright Act takedown demands. Similar to the filing of criminal charges, evidence and content must be preserved by all parties in order for the lawsuit to be successful.

Importantly, the Communications Decency Act Section 230 protects websites and social media platforms from liability for the conduct of their users, but there are efforts being made to modify this law that largely protects big technology companies and hurts victims of abuse.

Conclusion

The prevalence of cyber sexual abuse and misconduct remains on the rise as technology continues to advance, making it easy for this abuse to occur, and increasing amounts of people have access to such technology. This includes younger teenagers, as trends show that children are being given devices and social media accounts at younger ages than ever before. Cyber abuse occurs within many different contexts with varying motives, including “revenge porn,” “sextortion,” “doxing,” and “cyberstalking,” and these offenses can oftentimes be perpetuated much more easily than crimes of a face-to-face nature, with devastating impacts on victims. A perpetrator can cause long-lasting harm to a victim without having to set foot in the same room. Harms include severe emotional trauma and mental distress, fear, shame, and damage to personal and professional relationships, including status in the community. Just one photo and a couple of clicks can ruin someone’s life.

With the increase in cyber sexual misconduct offenses, attorneys who may encounter victims of cyber abuse have a duty to stay abreast of the newest information associated with these offenses and the best practices for the effective representation of victims. This is not limited to advising victims on avenues of criminal prosecution and civil lawsuits; it also requires attorneys to have a continuing understanding of conduct involved, which is sometimes unique and technologically savvy, involving preservation of electronic evidence, specialized trauma-informed lawyering, and all possible statutes available in the pursuit of justice for victims of cyber offenses.

In addition to becoming experienced in the representation of victims of cyber sexual misconduct, these attorneys also may bear the moral responsibility of spreading awareness. Most people, including attorneys, are unaware of the extent of cyber sexual abuse. Further, most people are unaware of the ways in which people become victimized in the context of cyber sexual abuse and what they should do in the immediate aftermath and the long term. As a result, attorneys experienced in this niche area of law should strongly consider educating the field of lawyers and judges at Continuing Legal Education programs (CLEs), at conferences, and on social media platforms.

Finally, and perhaps the greatest benefit, would be for attorneys to educate people who are most vulnerable to falling victim to cyber sexual abuse, such as children and young adults, including college students. Educating them will empower them to take greater care of intimate images, have the confidence to refuse to share images, understand the methods used by perpetrators to obtain intimate or sexual material, and believe that if they become a victim of cyber abuse, justice can be sought and served.