May 31, 2017

Experts Say “Revenge Porn” Is a Growing Problem, Legislation Needed

Christian Nolan

Increasingly, jilted ex-lovers are posting lewd and oftentimes pornographic images online and through social media without their former partners’ consent.

Commonly referred to in the media as “revenge porn,” this phenomenon, according to domestic violence experts, is another way for an abuser to try to humiliate and violate their target.

The sexual images can be obtained in several ways. Sometimes the images or videos were initially provided with the victim’s consent during the romantic relationship. Other times the images were taken without consent, acquired through hacking or even photoshopped with the victim’s face on a pornographic image.

How lawyers should handle these problems and whether legislation is needed to combat the problem was discussed during the Presidential Summit at the 2017 Annual Meeting in New York City.

The panel discussion, “It’s Not About ‘Revenge’ or ‘Porn’: The Problem of Intimate Partner Violence and Non-consensual Sexual Image Exploitation” was moderated by Amy Schwartz-Wallace, a senior attorney with the Empire Justice Center in Rochester.

Panelists included Ian Harris, who directs the Family Law Unit at Staten Island Legal Services; Carrie Goldberg, who specializes in sexual privacy and Internet abuse law at her own Brooklyn practice; and Lawrence Newman, an assistant district attorney who serves as the chief of the Domestic Violence Unit in New York County.

“We get about six calls a day from new clients,” Goldberg said. “They are in such a dervish of crisis. [The victims] are often suicidal; they are always, always depressed. Imagine having something on the Internet in 500 different places and trying to get that removed. . . . It’s super-powerless-ness victims feel when they are dealing with this.”

Goldberg explained that the impact can be devastating to a victim. The images may be sent to the victim’s family and friends, sometimes the images are posted to pornographic websites for anyone to see with the full name of the victim.

This could then show up on a Google search, making it next to impossible for the victim to find a job, she said. One abuser went so far as to buy a URL of the victim’s first and last name just to post the pictures.

“Taylor” and “Jaime”

Early in the program, Schwartz-Wallace read a lengthy law-school exam-like hypothetical situation involving the fictitious Taylor and Jaime, which drove the ensuing discussion. In sum, the couple began dating in high school, a few years later in college they broke up. Jaime, upset about the break-up, threatened Taylor about the sexually graphic images if they did not get back together.

Taylor ignored Jaime, but later discovered the pornographic images and videos posted to Taylor’s Facebook page for family and friends to see, as well as to pornographic websites.

Harris said it’s common for victims in these types of scenarios to not want to admit, at least initially, that the domestic abuse involves these kinds of sexual images. For instance, he had several clients who had obtained temporary restraining orders for domestic abuse, but were too afraid to tell him and the judge that the abuser had spread these types of images around.

With regard to the hypothetical, Harris said the age of the victim is an immediate concern. If underage, it can be treated as child pornography. Otherwise, he explained that in New York there are almost no laws preventing adults from posting these types of photos online, with or without consent.

New York Law

Harris noted that there is an especially large gap in the law in situations where the victim initially consented to the creation of the image, but did so with the expectation and understanding that the private images would not be shared with anybody outside of the relationship. He said in New York, there are almost no legal options for victims to protect themselves in that situation, despite the fact that is the most common circumstance for victims of non-consensual pornography.

Goldberg said if Taylor came to her in this situation, she would send a cease-and-desist letter to Jaime and demand the copyright of the images be transferred over to Taylor. She explained that if the pictures were selfies taken by Taylor, then Taylor owned the copyright. But if the images were taken by Jaime, then the copyright argument would not work.

Further, Goldberg explained that the porn sites have immunity if a third party uploads the images, so she could not pursue litigation in that regard. Taylor could sue Jaime for claims including intentional infliction of emotional distress and privacy violations, but that would come down to whether Jaime had any assets to make it worthwhile. Regardless, she said some clients want to do this “to prove a point.”

Goldberg said she reminds clients that if they pursue civil litigation, they have to contend with the potential media attention that could come with it.

“Are you OK with being the new poster child of revenge porn?” asked Goldberg. “Are you OK with having those segments of our complaint in the Daily News? And she might say, ‘yes this is my calling,’ or she might say ‘no, this is a privacy violation. I don’t want it to become a bigger thing.’”

Goldberg then added that her firm does employ methods to help protect the privacy of victims who want to pursue litigation, such as by making pre-filing motions for the plaintiffs to proceed anonymously and court files to be sealed.

Newman, the prosecutor, said the fact pattern was common and encouraged victims in Taylor’s situation to go directly to the DA’s Office rather than the police. He said they are better equipped to handle the cases and can help get the images removed from the Internet.

Despite no laws prohibiting Jaime from posting the photos online, assuming they are adults, Newman said there were still numerous crimes that could be pursued including hacking into and using someone’s email, coercion, stalking, and threatening.

However, Newman admitted that the crimes would carry very little if any prison time, especially since Jaime would likely have a clean record prior to this. He said the crimes would all be misdemeanors, which carry a maximum penalty of one year in prison. However, it’s very likely someone could walk away from this situation with no time at all behind bars.

For that reason, Newman believes lawmakers need to step in.

Revenge Porn Legislation?

“Do we need legislation? Yes, we do,” said Newman. “There are huge legislative gaps. . . . When we are talking about holding defendants accountable, we’re talking about the power to deter crime. A basic first step is to recognize and appreciate the harm that’s committed by these acts. Non-physical acts of abuse and control go far beyond and last far longer than misdemeanor charges seem to say.”

Goldberg agreed. She noted that New York is only one of 17 states that have not enacted legislation to criminalize revenge porn. She said it hasn’t been a lack of effort, as a bill proposal has been around since 2013, but lawmakers have not passed it. Goldberg said California was the most proactive on the issue, having passed a law with three subsequent upgrades.

Newman opined that perhaps the terms “revenge” and “porn” in the title were preventing New York lawmakers from taking the bill more seriously.

Christian Nolan

Christian Nolan is a senior writer with the New York State Bar Association. This article appeared in the March/April 2017 New York State Bar Association State Bar News.