Revenge Porn in Illinois

Illinois has criminalized revenge porn – posting or distributing intimate photographs, images, or videos of another person on the internet without the person's consent and in order to harass or upset that person. The crime is referred to as the "non-consensual dissemination of private sexual images" in Illinois and is a Class 4 felony. (720 ILCS 5/11-23.5 (2017).

Revenge porn is a form of nonconsensual pornography (NCP) and most often involves a scorned or disgruntled ex-partner ("Joe") posting nude or revealing photos or videos of the other person ("Mary") or photos or videos of the two people engaged in sexual acts. These might be photos Joe took of Mary with permission, or photos Mary shared with Joe while they were involved – perhaps suggestive selfies she sent to him via text – but that she did not give him permission to post publicly. Strangers also can engage in NCP, by hacking into others' accounts or devices and posting images they find there.

How Is "Revenge Porn" Defined in Illinois?

A person commits the crime of non-consensual dissemination of private sexual images in Illinois if she or he intentionally posts, publishes, or distributes private sexual images of a person who is 18 years or older in print or electronic format without the person's consent. The person must be identifiable from the image or the identifying information must be displayed or posted with the image. Identifying information allows the viewer to specifically identify the person depicted and can include the person's full name or online name (Facebook or Twitter username, for example), physical or email address, telephone number, driver's license or Social Security number, or other specific personal information.

What Is a "Private Sexual Image?"

A sexual image of a person is a photo, film, video, digital recording, or other depiction or portrayal of the person engaged in a sexual act or whose "intimate parts" are partially or completely exposed or covered only transparent or "see-through" clothing. Intimate parts includes the genitals, pubic area, anus, or a woman's partially or fully exposed nipple.

A sexual act is penetration, masturbation, and sexual activity, including touching and fondling of intimate parts for sexual gratification or arousal directly or through clothing. A sexual act also includes transferring or transmitting semen onto another person's clothed or unclothed body for sexual gratification or arousal of that person or another and urinating in a sexual context. Bondage, the use of fetters (restraints such as chains, ropes, or manacles), and sadomasochistic acts also are considered sexual acts.

A sexual image is private under Illinois law only if the person accused obtained the image under circumstances in which a reasonable person would know or understand that the images were intended to remain private. A person also is guilty of the crime of disseminating a private sexual image only if he knew or should have known that the person depicted did not consent to dissemination. These requirements presume an expectation of privacy in sexual relationships – that when persons in such a relationship photograph or record themselves in an intimate, private setting and do not share those images or recordings with others, an expectation of privacy arises.

If Joe and Mary make a video of their sexual activity or Mary takes photos of Joe in the privacy of their home or a hotel room and they do not share the videos or photos with anyone else as a couple, a reasonable person could be expected to know or understand that the video and photos are intended to be kept private and that the other person does not consent to them being posted on the internet. If Mary texts sexual "selfies" of herself to Joe and he knows she does not send suggestive photos to anyone else or post them on her internet accounts or sites, a reasonable person in Joe's position would know that she expects the photos to be private and doesn't consent to him posting them publicly.

Exemptions Under Illinois' Revenge Porn Statute

Dissemination of a private sexual image is not a crime in Illinois when the image is shared, posted, or distributed for the purpose of a lawful criminal investigation or reporting unlawful conduct. Dissemination of a sexual image also is not a crime if the image involves voluntary exposure in a public or commercial setting. If Joe sells or publicly posts sexually explicit photos of himself or he is photographed performing at a male strip club and Mary posts one of the photos on the Internet, she will not be guilty of dissemination of a private sexual image because the images were not private and may already have been distributed commercially. Finally, disseminating a sexual image is not a crime if the dissemination serves a lawful purpose such as journalism or a public service announcement.

The Illinois statute also exempts interactive computer services, providers of public mobile services (mobile phone service providers such as Verizon or Sprint) or private radio services, and telecommunications network or broadband providers from liability "solely as a result of content or information provided by another person." (720 ILCS 5/11-23.5(d) (2017)).

Interactive computer services are internet services like Facebook and Twitter, which allow users to upload and share content with other users. If Joe posts the nude photo of Mary on Facebook or Twitter or a revenge porn website that simply allows individuals to create an account and post content, the owners of those services will not be responsible for his criminal act. The broadband provider and/or mobile phone service that allowed Joe to connect with the Internet also will not be liable.

Federal law also provides immunity (protection from prosecution) to interactive computer services in Section 230 of the Communications Decency Act, but neither the federal law nor the Illinois statute provide immunity to information content providers, typically the owners of websites or other services that create, develop, and publish online content. An interactive computer service can be deemed to be an information content provider if the service goes beyond being a passive conduit (a site or service where people post their own content) and engages in publishing and creating content. If a revenge porn website urges or requires third parties (posters) to, not just post photos or videos, but also submit information identifying the person in a photo or video, the owner of the website may be deemed a co-developer and, therefore, an information content provider.

How Is NCP Punished in Illinois?

The crime of non-consensual dissemination of private sexual images is a Class 4 felony in Illinois and a person convicted of the crime can be imprisoned for one to three years or placed on probation for up to 30 months and required to pay a fine up to $25,000. If the defendant was convicted of a Class 4 or more serious felony within ten years of his conviction for revenge porn, the new conviction will constitute an extended Class 4 felony which is punishable by three to six years in prison. (730 ILCS 5/5-4.5-45 (2017)).

Civil Action and Other Ways to Address Revenge Porn

A victim of revenge porn can report the NCP to the social media companies in question. The victim also can file a civil law suit and request that the person who posted the images be ordered to remove them and pay damages if the victim has suffered financially from the posting of the images. For instance, if Mary loses her job because of the images Joe posted, she can sue Joe for lost wages. The Cyber Civil Rights Initiative, a non-profit devoted to helping victims of NCP, has published an online guide to the steps victims can take to address NCP.

Consult an Attorney

Nonconsensual pornography is a serious crime. If you have been charged with the crime of non-consensual dissemination of private sexual images in Illinois, contact a criminal defense attorney in your state for information about your rights, possible defenses, and representation. If you have been a victim of NCP, you can contact a civil attorney or a criminal defense attorney to learn about your rights and options.