Arkansas criminalizes "video voyeurism," and punishes it more severely when the perpetrator shares the image with another person.
Updated January 03, 2023
It is a crime in Arkansas for anyone to post or otherwise distribute a nude or sexually explicit photograph of another person without that person's consent and in order to harass the person. Revenge porn, as these types of postings are often called, is sometimes also called "cyber exploitation." It is a form of nonconsensual pornography (NCP). Although disgruntled exes are frequently the perpetrators of revenge porn, strangers also commit NCP by hacking into others' accounts or devices and then posting images they find.
Arkansas and 33 other states explicitly outlaw nonconsensual pornography. But even states that do not specifically address NCP often have existing criminal laws that cover NCP. For more information about nonconsensual pornography in general, see Revenge Porn: Laws and Penalties.
Arkansas Nonconsensual Pornography Law
Arkansas has outlawed the distribution (electronic or otherwise) of images of people in the nude or of a sexual nature that were recorded without their consent and under circumstances in which they had a reasonable expectation of privacy. Arkansas law also prohibits surreptitious photography, videography, or other recording of another, and penalties for these crimes are enhanced if the perpetrator discloses the image on the Internet.
Video Voyeurism
It is a class D felony in Arkansas to secretly photograph, videotape, or otherwise record an image of another person inside a residence, business, school, or other structure if the person viewed or recorded:
- is in a private area out of public view
- has a reasonable expectation of privacy, and
- has not consented to the observation.
(Ark. Code Ann. § 5-16-101.)
It is a class B misdemeanor to use a concealed or disguised camera, camcorder, or other recording device to secretly record or view another person:
- for the purpose of viewing any portion of the person's body that is covered with clothing and for which the person has a reasonable expectation of privacy
- without the knowledge or consent of the person being recorded or viewed, and
- under circumstances in which the person viewed or recorded has a reasonable expectation of privacy.
(Ark. Code Ann. § 5-16-101.) However, this form of video voyeurism becomes a more serious class A misdemeanor if the perpetrator recording the image shares it with another person or posts it on the Internet.
An example of the second form of the Arkansas video voyeurism law is "upskirting" (using a camera or smart phone to surreptitiously take a photograph up a woman's skirt). For more information on upskirting laws, see our article, "Upskirting."
Unlawful Distribution of Sexual Images
It is a class A misdemeanor in Arkansas to distribute to a third party a picture, video, image, or audio recording of another person in order to harass, frighten, intimidate, threaten, or abuse that person if the image or recording:
- is of a sexual nature or depicts the other person in a state of nudity, and
- the person depicted or recorded is a family or household member of the perpetrator or another person with whom the perpetrator is in a current or former dating relationship.
(Ark. Code Ann. § 5-26-314.) It is not a defense to this crime that the person depicted in the image or recording knew about or even consented to the photograph or recording. Nor is it a defense that the image or recording is the property of the individual charged with a violation of this law.
Defenses
Certain defenses are available to an individual charged in Arkansas with the crimes discussed above.
Consent
While consent of the person depicted in an image or recording is not a defense to unlawful distribution of sexual images in Arkansas (Ark. Code Ann. § 5-26-314), it is a defense to video voyeurism (Ark. Code Ann. § 5-16-101).
No Reasonable Expectation of Privacy
The defense that the person viewed or recorded did not have a reasonable expectation of privacy is also available to an individual charged with video voyeurism (Ark. Code Ann. § 5-16-101) but not to unlawful distribution of sexual images in Arkansas (Ark. Code Ann. § 5-26-314).
So, for example, if the person viewed or recorded has voluntarily exposed intimate bodily parts in a public place (such as a woman sunbathing topless on a public beach), an individual charged with video voyeurism for recording an image of that person may argue that the person did not have a reasonable expectation of privacy.
How is Nonconsensual Pornography Punished in Arkansas?
In Arkansas, anyone who engages in nonconsensual pornography, whether via video voyeurism or unlawful distribution of sexual images, faces a jail or even prison sentence and fines.
Punishment for Video Voyeurism
Surreptitious photography or recording of another person inside a structure is a class D felony in Arkansas. (Ark. Code Ann. § 5-16-101.) Anyone convicted of a class D felony in Arkansas faces up to six years in prison (Ark. Code Ann. § 5-4-401), a fine of up to $10,000 (Ark. Code Ann. § 5-4-201), or both.
Using a concealed or disguised camcorder, camera, or other device to secretly record images of another person's bodily parts (whether in a public place or not) is a class B misdemeanor. Anyone convicted of a class B misdemeanor in Arkansas faces up to 90 days in jail (Ark. Code Ann. § 5-4-401), a fine of up to $1,000 (Ark. Code Ann. § 5-4-201), or both.
Sharing an image obtained by such surreptitious recording with another person or posting it on the Internet is a class A misdemeanor in Arkansas. (Ark. Code Ann. § 5-16-101.) Anyone convicted of a class A misdemeanor in Arkansas faces up to one year in jail (Ark. Code Ann. § 5-4-401), a fine of up to $2,500 (Ark. Code Ann. § 5-4-201), or both.
Punishment for Unlawful Distribution of Sexual Images
Unlawful distribution of sexual images is a class A misdemeanor in Arkansas. (Ark. Code Ann. § 5-26-314.) Anyone convicted of a class A misdemeanor in Arkansas faces up to one year in jail (Ark. Code Ann. § 5-4-401), a fine of up to $2,500 (Ark. Code Ann. § 5-4-201), or both.
Copyright Protections
In addition to reporting a potential crime as described above, a victim of nonconsensual pornography may use copyright laws to demand removal of the offending images from whatever site or publication has displayed them. For more information, see Using Copyright Law to Combat Revenge Porn.
Other Ways to Address NCP
If you have been a victim of nonconsensual pornography posted on social media, you may want to report the NCP to the social media companies in question. The Cyber Civil Rights Initiative, a non-profit devoted to helping victims of NCP, has published an online guide to steps victims can take to address NCP.
Consult With a Lawyer
Nonconsensual pornography is a serious crime. If you have been charged with the crime, have been the victim of it, or have any questions about NCP or any other sexual crime, contact a lawyer experienced in criminal defense law in your state.
