Does Someone Who Sends Another's Sexts to a Website Violate Non-consensual Pornography Laws?

Random recipients who got Anthony Weiner's explicit photos sent them on to a website, which published them. Did the women break any laws by forwarding the photos?

In 2011, a woman received a revealing photo on her Twitter account from Anthony Weiner, at the time a U.S. congressman from New York and husband of a close aide to Hilary Clinton. The woman forwarded the photo to a conservative website, which published it along with similar Weiner photos it had received from other women. The ensuing fall-out led to Weiner’s resignation from Congress and derailed his political career. The Weiner sexting scandal even  tainted  Hilary Clinton’s presidential campaign. But, what about the women who disclosed the photos? Did they break the law?

Distributing or posting explicit photographs of another person without that person’s consent may violate laws against nonconsensual pornography.

What is Nonconsensual Pornography?

Nonconsensual pornography, sometimes called “cyber exploitation,” often starts as a consensual photograph taken by a romantic partner who, after the relationship ends, posts it in order to humiliate the former partner. For this reason nonconsensual pornography (NCP) is also referred to as “revenge porn.” But very frequently, NCP is posted by third parties who have accessed others’ accounts to find explicit photographs to distribute without consent. For more information about nonconsensual pornography in general, see  Revenge Porn: Laws and Penalties.

No Federal Law Against NCP--Yet

Although Congress is considering proposed legislation outlawing NCP, there is currently no federal law against NCP. For more information about the proposed federal legislation, see  The Proposed Federal Law on Nonconsensual Pornography. However, thirty-three states and the District of Columbia have explicitly outlawed NCP. So, the women who forwarded the Weiner photos and the websites and other media outlets that published them may have violated the laws in those states.

State Laws Against NCP

Whether the women who forwarded the Weiner sexts could face legal penalties for doing so depends on the laws of the states in which they live. As noted above, the majority of U.S. states have explicitly outlawed NCP. And, even in those states that have not done so, there may be other laws on the books that would apply to nonconsensual distribution of explicit images of another person without their consent.

State NCP Laws

NCP laws differ somewhat from state to state. But they generally share three main elements:

  • they forbid the distribution (whether by posting on the internet or otherwise) of a defined image
  • the distributed image (photographic or video) is of another person and reveals that person’s genitalia or female breasts, or shows the person engaged in sexual activity, and
  • the distribution is done without the consent of the person depicted.

Some states also include in their NCP laws the additional element of an intent on the part of the individual distributing the image to humiliate the person depicted in the image.

The women who forwarded the Weiner sexts arguably violated NCP laws (assuming they live in states having such laws) because they distributed images of another person’s genitalia without his consent. But, they may have defenses to such charges, as discussed in the Defenses section below.

Invasion of Privacy

Many states, including some that do not have NCP laws, prohibit individuals from violating the privacy rights of others. In general, a violation of privacy occurs when an individual:

  • invades a zone of another person’s life
  • the person claiming invasion of privacy had a reasonable expectation of privacy over the zone invaded and,
  • the person claiming invasion of privacy has themselves maintained the privacy of the zone invaded.

Most people consider their genitalia and breasts to be private parts of their bodies and reasonably expect that these private areas will not be exposed to public view.

The women who forwarded the Weiner sexts may have violated his privacy, but they likely have some very strong defenses to any invasion of privacy claims he could bring, as discussed below.

Defenses

Certain defenses are available to the women who forwarded the Weiner sexts, even if they live in states with NCP or invasion of privacy laws.

Consent

The women could argue that Weiner consented to distribution of his explicit images because he himself sent them the images. In the typical NCP case, such a defense would not fly because the person depicted in the explicit image must consent to the further distribution of the image. That is, the person depicted may consent to another individual seeing the image but not consent to that individual forwarding the image on to anyone else. This is the heart of most revenge porn cases.

However, the situation here is critically different because it has been reported that Weiner did not know the women to whom he sent the sexts. The women could argue that, by sending explicit images to unknown third parties, Weiner himself distributed the images. They could contrast this with the typical case where the person depicted knows the individual who is granted sole access to the explicit image (such as partner who later vengefully distributes the image).

And, if Weiner were to claim that the women violated his privacy, they could argue that they did not invade his privacy so much as he voluntarily thrust his private zone into their lives.

No Intent to Humiliate

In those states whose NCP laws require an intent to humiliate the person depicted in an explicit image as an element of the crime, the women would have the further defense that the state cannot prove that element. They could argue that they forwarded the Weiner sexts to media outlets because the images are of public interest due to Weiner’s status as a public figure. Weiner’s status as a public figure may also afford First Amendment defenses to the websites and media outlets that published the sexts. For more information on the First Amendment and NCP, see  Nonconsensual Pornography vs. Newsworthy and Artistic Images.

No Reasonable Expectation of Privacy

Where a person has revealed their allegedly private zone to public view, an individual alleged to have invaded their privacy can argue that the person had no reasonable expectation of privacy. If you expose your private parts to the world, you cannot later claim that you reasonably expected that they would remain “private.” Weiner sent photographs of his genitalia to unknown women; this is not behavior that the average person would view as protective of privacy.

No Harm, No Foul?

In the very unlikely event that Weiner were to try to press charges or bring legal action against the women who forwarded the sexts he sent them, the women would have some fairly robust defenses. Far more likely, Weiner has enough other problems (including a  U.S. attorney’s investigation  into his allegedly explicit texts to a minor) to bother pursuing actions against them. But if he does, we will update this article.

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