Revenge Pornography Defined
Revenge pornography, or “nonconsensual pornography,” is the disclosure of sexually explicit images without consent and for no legitimate purpose, thus causing immediate and irreversible harm. Wikipedia defines revenge pornography as the “sexually explicit portrayal of one or more people distributed without their consent via any medium.”
Former partners seeking vengeance, hackers, and rapists will often upload explicit pictures of the victim so that thousands of people can view and share the images. Within hours of the posting of the images, they can be spread among search engines and emailed to the victim’s family members, employers, colleagues, and peers.
Dedicated “revenge porn” sites solicit these photos and post them for millions to view, while protecting the perpetrator. Abusers have been able to “go viral” with their harassment and have allowed social media sites to profit from the images. See Mary Ann Franks, Drafting an Effective “Revenge Porn” Law: A Guide for Legislators, Cyber Civil Rights Initiative (Nov. 2, 2015).
Case Law: People v. Barber
People v. Barber, 42 Misc. 3d 1225(A) (N.Y.C. Crim. Ct. 2014), appears to be the first time that a New York court considered charging someone criminally for revenge porn. However, the court dismissed all counts. A summary of the case follows.
On July 26, 2013, the defendant posted naked pictures of Adrianna Batch, his ex-girlfriend, on his Twitter account and then sent them to her employer and her sister. The defendant did not get authorization or permission from Batch to post or distribute the pictures. However, the defendant claimed that he received permission or informed Batch before he distributed them.
On August 2, 2013, the defendant was charged with second-degree aggravated harassment, second-degree dissemination of an unlawful surveillance image, and public display of offensive sexual material. He was released on his own recognizance and on November 26, 2013, filed this motion to dismiss the charges.
The Court Summarizes the Facial Sufficiency Standard
The court set a foundation for its decision-making by summarizing the facial sufficiency standard. In order for information to be facially sufficient, the court noted, it must contain nonhearsay allegations that provide reasonable cause to believe that every element of the crime charged can be proven. People v. Dumas, 68 N.Y.2d 729, 731 (N.Y. 1986). Reasonable cause to believe that an offense has been committed by a particular person “‘exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.’ CPL § 70.10(2).” Proof beyond a reasonable doubt is not required.
The Court Finds Count 2 Facially Insufficient
The defendant moved to dismiss Count 2, dissemination of an unlawful surveillance image in violation of N.Y. Penal Law section 250.55, on the basis that it was facially insufficient. The court noted the “dearth of case law” regarding N.Y. Penal Law section 250.55. Previous to this case, only one other court had construed the relatively new section. The Barber court, however, stated that the section is clear about the requirement that there must be “more than the mere posting of an image on a social networking site such as Twitter or the sending of an image [to] other persons.” See People v. Morriale, 859 N.Y.S.2d 559 (N.Y.C. Crim. Ct. 2008).
The court noted that section 250.55 provides that
a person is guilty of dissemination of an unlawful surveillance image in the second degree when he or she, with knowledge of the unlawful conduct by which an image or images of the sexual or other intimate parts of another person or persons were obtained and such unlawful conduct would satisfy the essential elements of the crime of unlawful surveillance in the first or second degree, as defined, respectively, in section 250.50 or 250.45 of this article, intentionally disseminates such image or images.
The court then divided section 250.55 into its individual elements:
1. Dissemination: The intentional dissemination of an image of the sexual or other intimate parts of another.
2. Unlawful Conduct: In order to prove this element, “the statute requires proof that the defendant violated § 250.45,” which results in a finding of guilt of the Class E felony of unlawful surveillance in the second degree when an image has been obtained in one or more specifically delineated ways, best summarized as surreptitiously recording, or allowing to be recorded, for oneself or others, the intimate parts of a person when such person could reasonably expect privacy.
3. Knowledge: It must be established that the defendant knew that the way in which the image was obtained was unlawful.
The court stated that the facts only supported the first element of section 250.55, i.e., an intentional dissemination of the nude photos of Batch. There were no facts pled regarding either the manner in which the pictures were obtained or the unlawful behavior specifically outlined in section 250.45. There were also no facts pled leading to an inference that the defendant knew how the photographs were obtained. The court further stated that although the defendant recorded himself having sexual intercourse with Batch without her knowledge, there still was not a sufficient meeting of all of the elements of section 250.45.
The court thus dismissed Count 2 as facially insufficient.
The Court Finds Counts 1 and 3 Facially Insufficient
The defendant did not ask the court to dismiss Counts 1 and 3 due to facial insufficiency, the court nevertheless noted that it had a duty to review all counts for facial insufficiency.
Regarding Count 1, aggravated harassment, the Barber court noted that
A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he . . . communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm. Penal Law § 240.30(1)(a).
For guilt to be found under this section, the defendant must have communicated with the complainant. People v. Thompson, 905 N.Y.S.2d 449 (Kings Cty. Crim. Ct. 2010). There was no allegation supporting an inference that there was any communication between the defendant and Batch. There was not even an allegation that the defendant sent Batch any notice of the postings or a tweet containing the pictures. The only allegation here was that Batch saw the postings on the defendant’s Twitter account and in the emails to her sister and employer. The court concluded that because there was no communication between the defendant and the complainant, there was no second degree aggravated harassment. The court also reasoned that not only was there no information sent to Batch, there was also no allegation that the defendant induced others to communicate with her. The court relied on a portion of the decision in People v. Dupont, 486 N.Y.S.2d 169 (1st Dep’t 1985), where that court reversed the defendant’s conviction for second degree aggravated harassment because the “harassment statute” was intended “punish . . . annoying and harassing communications transmitted directly to the complainant. It was not designed to prevent the dissemination . . . of vexatious material about an individual.” Id. at 252. The Barber court subsequently granted the defendant’s motion to dismiss the aggravated harassment in the second degree charge on the ground of facial insufficiency.
Regarding Count 3, public display of offensive sexual material, the Barber court, in granting the motion to dismiss this charge, analyzed N.Y. Penal Law section 245.11 and concluded that the posting of naked pictures on Twitter or sending them to private individuals did not violate the section.
N.Y. Penal Law section 245.11 provides thus:
A person is guilty of public display of offensive sexual material when, with knowledge of its character and content, he displays or permits to be displayed in or on any window, showcase, newsstand, display rack, wall, door, billboard, display board, viewing screen, moving picture screen, marquee or similar place, in such manner that the display is easily visible from or in any: public street, sidewalk or thoroughfare; transportation facility; or any place accessible to members of the public without fee or other limit or condition of admission such as a minimum age requirement and including but not limited to schools, places of amusement, parks and playgrounds but excluding rooms or apartments designed for actual residence; any pictorial, three-dimensional or other visual representation of a person or a portion of the human body that predominantly appeals to the prurient interest in sex, and that: (a) depicts nudity, or actual or simulated sexual conduct or sado-masochistic abuse. . . .
The court stated that there were not sufficient facts pled that could prove that there was a “public display” of the nude photos of Batch because (1) Twitter is a mainly a subscriber-based service, and (2) the individuals who received the emails may not have looked at the attachments. The court thus concluded that both of the acts were private and not public. The court also stated that there was no way to infer that the pictures “predominantly appeal[ed] to the prurient interest in sex” as required by section 245.11. In order to meet this element, the image must (1) “depict nudity” and (2) “predominantly appeal to the prurient interest in sex.” The court relied on case law to support its proposition that nudity is not enough to prove there was an appeal to the prurient interest in sex. The Barber court thus dismissed Count 3, holding that it was facially insufficient because there was only an allegation of nudity and no facts to support the element of prurient interest.
Proposed Legislation Criminalizing Revenge Pornography
In some—but not all—states, it is a felony to distribute sexually explicit images without consent. New York, as well as other states, has proposed legislation criminalizing revenge pornography. Proposed section 250.70.3 to the N.Y. Penal Law would make nonconsensual disclosure of sexually explicit images a Class A misdemeanor. A.00571/S04450-A. Proposed N.Y. Penal Law section 250.75 would establish a civil cause of action for the nonconsensual disclosure of sexually explicit images. A.00571/S04450-A. Under section 250.75, the statute of limitations to bring a suit would be five years, and the plaintiff would be entitled to injunctive relief, actual damages, punitive damages, court costs, and attorney fees. To protect the confidentiality of the plaintiff, proposed N.Y. Penal Law section 250.75.4 allows for the redaction of the plaintiff’s identifying information and the filing of the case under a pseudonym. A.00571/S04450-A.
New York’s current law regarding the distribution of unlawful surveillance governs only photographs taken without consent. A.00571/S04450-A. More protections need to be provided for revenge pornography victims, including laws that govern photographs that are taken consensually and later disseminated to the public without the consent of the person photographed.
Furthermore, civil suits in New York are difficult to bring and win. Thus, there should be an option for a plaintiff to pursue a criminal case, civil case, or both. Criminalization of the dissemination of sexually explicit photographs is preferable to civil liability because there is not much of a deterrent effect for those who want to disseminate images after a civil suit has concluded. Criminalization provides more of a deterrent effect because of the lengthy, expensive, and exhausting criminal trial process. Furthermore, criminalizing dissemination of the photographs may prevent websites from benefiting from the images. Currently, websites are mostly immune for liability for the posting of nonconsensual sexually explicit photographs through the Communications Decency Act, which grants broad immunity to Internet service providers for the acts of private parties. 47 U.S.C.A. § 230 (West 1998).
Revenge pornography is a fairly recent phenomenon experienced predominantly by women whose former partners post explicit pictures to exact revenge. Victims of revenge pornography have only recently begun to speak out about the severely damaging effects they have suffered as a result of their images being posted online without their consent.
Much of the suffering that these victims experience is ignored or treated as minor. Prosecution of the cases is often burdensome, leading to few convictions.
Education for the public, police, legal community players, and judicial officers is imperative because of the repercussions that revenge pornography victims often experience; and legislators need to combat the problem because although a woman may have consented to the sharing of sexually explicit photos with a trusted person, this does not mean that she consented to share them with the public at large.
Keywords: criminal litigation, revenge pornography, prurient interest, sexually explicit, photographs
Farrah Champagne is a coeditor in chief of the Criminal Litigation newsletter, an appointed attorney for the District Court of Maryland, and a solo practitioner at Champagne Law.