Revenge Porn: Laws & Penalties

Revenge porn, also known as nonconsensual pornography, is the distribution of one or more sexually explicit photos of someone else, without the subject’s permission. The photo may be one that the victim took herself and naively shared with the eventual poster, a photo taken by someone else (usually an ex-boyfriend or lover), or an image taken from the victim’s computer or device by a hacker. The victims are overwhelmingly female, and the damage done to their reputations and psyches can be enormous.

States are increasingly passing targeted legislation that criminalizes such conduct, including New Jersey, California, Idaho, Utah, and Wisconsin, but some have not done so. In the latter group, victims rely on various related criminal statutes to prosecute the perpetrators. A couple of federal laws may apply, and targeted federal legislation is in the works. In addition, a variety of civil responses are available to the determined victim.

This article looks at the laws of a few of the states that target revenge porn, explains the related criminal statutes that may apply, and presents civil remedies that are sometimes available.

Revenge Porn Websites

Revenge porn sites feature nude and sexual photos of people, mostly women, often posted by their ex-spouses or ex-lovers. A number of websites host these images. Many sites include identifying details, such as the person’s full name, employer, and hometown, as well as links to the person’s Facebook or other personal webpages, plus nasty comments. Although some revenge porn sites have been shut down, new sites pop up all the time. Images can also be easily picked up by other websites, and content that is widely distributed on the Internet is difficult to remove. So, even if a person succeeds in getting images removed from one site, it may be difficult or impossible to get them completely off the Internet.

Protection Under The Communications Decency Act?

The first line of defense mounted by a revenge porn site involves Section 230 of the Communications Decency Act, a federal law that gives immunity (protection from prosecution) to websites for content posted by third parties. The idea here is that when the site is a mere conduit, it won’t be held responsible for what users post. But that immunity goes away if the website or webmaster goes beyond being a passive conduit, and engages in the publication of the content, as an editor or co-developer . For example, a site whose design urges third parties (posters) to submit information that forms the basis for the victim’s legal claim may be deemed a co-developer, and fair game for a lawsuit.

A notorious revenge porn website, UGotPosted.com, lost its immunity when it was sued in California. The site’s operator ran a companion site, ChangeMyReputation.com, which offered to take down the victims’ photos for $400. It was a tidy operation: Elicit and post the offending material (and earn money through advertising), and include a link for removing it (again, at a price). The appellate court found that, due to the developer’s involvement in curating the photos and information on the site, he was a content provider and not entitled to immunity. (People v. Bollaert, 2016 WL 3536550 (2016).)

A relatively new approach to combatting revenge porn lies in the filing of a copyright infringement suit. This approach does not involve issues raised by the Communications Decency Act. For more information, see Using Copyright Law to Combat Revenge Porn.

Targeted Legislation

States are starting to criminalize revenge porn with specific criminal statutes. For example, New Jersey’s invasion of privacy law, enacted in 2004 (before revenge porn came to national attention), prohibits selling, providing, publishing, distributing, or otherwise disseminating nude or sexual photos of another person without that person’s permission (the penalty is a three-to-five year prison sentence or a fine up to $30,000). Wisconsin’s statute is similar (nine months’ imprisonment, and/or a fine up to $10,000), as is Idaho’s (five years imprisonment and/or a fine up to $50,000). (N.J. Stat. Ann. § 2C:14-9; Wis. Stat. Ann. §§ 942.09(1)(bn), (3m)(a); Id. Code Ann.  § 18-6609(2)(b).)

Although no specific Federal law targets revenge porn, a bill introduced by Representative Jackie Speier (D-Calif) in 2016 (and slated for reintroduction in 2017) attemtps to do just that. It would make it illegal to "...knowingly distribute a private, visual depiction of a person’s intimate parts or of a person engaging in sexually explicit conduct, with reckless disregard for the person’s lack of consent to the distribution, and for other purposes." (Discussion Draft, Intimate Privacy Protection Act.)

These statutes have some drawbacks. They could apply to someone who disseminated photos of legitimate public interest, such as the journalists who print photos showing evidence of a sex crime. And it’s arguable that they run afoul of free speech guaranteed by the First Amendment: While certain kinds of speech (including defamation, child pornography, fraud, and obscenity) do not deserve First Amendment protection, the posting of sexually explicit photos without permission, without more, is still protected.  Consider the case of United States v. Stevens, 559 U.S. 460, (2010), where the Supreme Court overturned a federal law prohibiting the creation, selling, or possession of “crush” videos (clips showing women in stiletto heels, stomping little animals to death). It’s hard to imagine that a court that is unwilling to remove such speech (horrifying photos of deliberate animal killing) from First Amendment protection would be willing to remove sexually explicit photos of women from the First Amendment’s protections.

Other Criminal Laws: Disorderly Conduct and Harassment

In some states, it is a crime, often a kind of disorderly conduct, to take nude photos of people without their knowledge. However, while images that end up on revenge porn sites were almost certainly originally intended to be private, often the women themselves took photos and shared them willingly, or the partners took the photos with the women’s permission.

For more information on the crime of disorderly conduct, see our article on Disorderly Conduct.

Harassment is also illegal and, in many states, a crime. However, harassment laws generally prohibit a course of conduct, not isolated incidents, so harassment laws do not apply in many revenge porn cases.

For more information on online harassment, see our article on Harassment and Cyberbullying and Avoiding Criminal Charges from Online Behavior.

Child Pornography

While sharing naked photos of adults without their permission is not necessarily illegal, sharing any nude or sexual images of children under the age of 18 is considered child pornography. People who share such images can expect to be prosecuted, sentenced to lengthy prison terms, and ordered to register as sex offenders.

For more information on sharing child pornography, see Teen Sexting.

Criminal Penalties

In New Jersey, sharing explicit images without permission is punishable by three to five years in prison and a fine of up to $30,000. Under California’s law, revenge porn is a misdemeanor, punishable by up to six months in jail, a fine of up to $1,000, or both. If the victim is under the age of 18 or the defendant has a previous conviction for revenge porn, then the crime is punishable by up to one year in jail, a fine of up to $2,000, or both.

(Cal. Pen. Code, § 647; N.J. Stat. Ann. § 2C:14-9.)

Obtaining Legal Assistance

If you are charged with a crime tied to revenge porn, you should talk a criminal defense attorney in your state. An attorney can tell you how your case is likely to be treated and what you can do to protect your rights and obtain the best possible outcome. If you are a victim of revenge porn, you may also wish to talk to a civil attorney who can help you get the photos removed from the Internet and possibly take other legal action. Also, consider contacting local law enforcement. California's Attorney General, for example, asks that victims of revenge porn websites file a complaint at https://oag.ca.gov/contact/consumer-complaint-against-business-or-company.

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