Rather than a patchwork of state laws, revenge porn would be best regulated—and curtailed—by a uniform federal law, particularly the law actively being considered in the reauthorization to the Violence Against Women Act.
At long last, Congress is on the verge of passing the first federal law to criminalize revenge porn.
The new law, which has been added as an amendment to the reauthorization of the Violence Against Women Act (VAWA), would prohibit the knowing or reckless distribution of “intimate visual depictions” of non-consenting subjects. The measure passed a vote in the House in March and was advanced to the Senate in late July.
If passed and signed into law, offenders would face up to two years in prison “for each victim depicted.” Although many states have already passed their own laws criminalizing the non-consensual distribution of intimate content, a uniform federal law is best suited to curtail this despicable act.
Sharing intimate content with romantic partners is now the norm. Surveys show that up to 60 percent of U.S. adults have taken a nude photo or video of themselves and shared it with someone else. In fact, it is estimated that Americans send 20 intimate photos every second. Although “sending nudes” is now a normative aspect of romantic life in the 21st century, the illicit distribution of this type of intimate content can be truly devastating, especially for women, who are disproportionately affected by this type of crime.
Consider the case of Damilya Jossipalenya, a 21 year-old woman who jumped to her death from the window of her apartment after her ex-boyfriend sent a video of her performing a sex act on him to a group of friends, and also threatened to forward it to her family members. Annmarie Chiarini, as detailed in her highly-publicized article, attempted suicide after an ex-boyfriend vowed to “destroy her” and posted her nude photos and videos for sale on eBay and also sent them to her boss, her son’s kindergarten teacher, and numerous friends.
As an attorney pursuing cases of sexual assault and harassment, I have personally counseled clients who have been affected by the nonconsensual release of sexual content online. Although no two offenses are perfectly alike, the trauma I have observed from these victims is similar to those who have experienced real-life sexual assaults. Unsurprisingly (but disconcertingly), results from a survey organized by the Cyber Civil Rights Initiative showed that 93 percent of revenge porn victims have suffered significant emotional distress and 41 percent have contemplated suicide.
Within the last ten years, 46 states have passed their own laws criminalizing the nonconsensual sharing of sexual content online. (Chiarini, as mentioned above, was highly influential in advocating for her state of Maryland to pass its law in 2014). While the intent of state legislators to criminalize revenge porn has been good, the actual pragmatic effects leave much to be desired. In reality, a very confusing hodgepodge of statutes, many of them with clear loopholes, has resulted.
For example, several states’ revenge porn laws require that the offender explicitly intend to cause the victim “serious emotional distress.” This leaves open the possible defense that an offender distributed the intimate content simply for their own sense of gratification.
Other states exclude “interactive computer service providers” (i.e. websites or forums) from criminal liability. While the law generally affords immunity to these platforms under the theory that they should not be liable for the content posted by their users (see e.g., the infamous Section 230 of the CDA), it must be recognized that many websites exist for the sole purpose of posting revenge porn and actively solicit users to contribute. Under many state laws, the owners and operators of these nefarious platforms are immune from prosecution.
Many state laws also fail to address jurisdiction, which can leave state authorities powerless if an offender proves that a photo was taken out-of-state or the victim does not live within the state.
Different states also impose wildly different penalties for revenge porn offenders. Missouri’s law classifies the crime as a felony offense and includes a potential seven-year prison sentence. By contrast, some states, such as California, treat the crime as only a misdemeanor with a maximum penalty of just six months in prison (the reality being that most misdemeanors result in only probation). Most glaringly, four states (Massachusetts, Mississippi, South Carolina and Wyoming) still haven’t prohibited revenge porn at all.
Rather than a patchwork of state laws, revenge porn would be best regulated (and curtailed) by a uniform federal law, particularly the law actively being considered in the reauthorization to VAWA. Credit to the drafters, the proposed law avoids common loopholes by only requiring that an offender knowingly or recklessly distribute intimate content without consent; it is not required that an offender explicitly intend to cause a victim emotional distress.
Website owners and operators can also face criminal liability if they “intentionally solicit, or knowingly and predominantly distribute” revenge porn. This strikes a fair balance between shielding most websites from liability while bringing to justice those that exist for the purpose of soliciting or disseminating revenge porn.
Additionally, federal law applies throughout the nation, which avoids the pesky issue of jurisdiction in online communications that are frequently interstate. The proposed law even allows for “extraterritorial federal jurisdiction,” which means that federal authorities can actually prosecute offenders who post revenge porn while outside the United States (a common occurrence), so long as the offender or victim is a U.S. citizen or permanent resident.
Of course, the proposed law has its opponents, among which two main critiques have surfaced. First, some argue that broad revenge porn laws run afoul of the First Amendment and could prevent journalists from publishing newsworthy content about politicians (such as former Representatives Anthony Weiner and Katie Hill.) Regardless of the ethics behind this argument, it is moot: The proposed federal law does not apply to any content that “touches upon a matter of public concern.”
Second, others have questioned whether a new federal law would actually change the existing legal landscape. After all, state laws already exist, and federal authorities would need to devote precious time and effort to actually prosecute such cases. This argument fails to recognize the important deterrent effect of criminal laws. As any first-year law student comes to learn, deterrence is one of the chief rationales of punishment in our legal system. Ever heard the expression: “Don’t make a federal case out of it?” Federal authorities have more power, more resources, and statistically more success in prosecuting crimes. The mere fear of a potential federal charge might outweigh the insidious satisfaction a would-be offender stands to gain from posting revenge porn.
Overall, estimates suggest 10 million Americans have been the victim of revenge porn. It is no longer a fringe issue. Passing a federal law to criminalize revenge porn would aid in prosecuting offenders and those who facilitate them, serve to deter future offenses, and signal to victims that we are finally taking this abhorrent crime seriously.
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