Revenge Porn Laws in Colorado

Colorado has outlawed "revenge porn"—the posting or other distribution of intimate photographs of other people without their consent to harass or upset them. Revenge porn is a form of nonconsensual pornography (NCP), which is sometimes called "cyber exploitation." Revenge porn is often perpetrated by ex-partners, but strangers can also commit the crime of NCP by posting images they find after hacking into others' accounts or devices.

Although most states have specifically outlawed NCP as Colorado has, many states do not explicitly address nonconsensual pornography. But even those states without explicit NCP laws have existing laws that make it a crime. For more information about nonconsensual pornography in general, see Revenge Porn: Laws and Penalties.

Colorado Nonconsensual Pornography Law

Anyone convicted of revenge porn and other types of NCP in Colorado faces many months of jail time and significant fines. And, if the victim of NCP is a child or otherwise especially vulnerable, the perpetrator may be convicted of a felony.

Posting a Private Image for Harassment

An individual commits the crime of posting a private image for harassment by posting or otherwise distributing on social media or any web site a private image of another "identifiable" person's "private intimate parts," either with the intent to harass and inflict distress upon the other person or with the knowledge that the other person had a reasonable expectation that the image would remain private. (Colo. Rev. Stat. § 18-7-107.) In order for the perpetrator to be convicted, the victim must suffer serious emotional distress as a result of the posting. (Colo. Rev. Stat. § 18-7-107.)

Posting a private image for harassment is a class 1 misdemeanor in Colorado.

The Colorado statute defines the terms "private intimate parts" and "social media" for use in connection with the law.

What are "Private Intimate Parts"?

For purposes of the Colorado statute outlawing the posting of a private image for harassment, "private intimate parts" means "external genitalia or the perineum or the anus or the pubes of any person or the breast of a female." (Colo. Rev. Stat. § 18-7-107.)

What is "Social Media"?

For purposes of the Colorado statute outlawing the posting of a private image for harassment, "social media" means any electronic medium, including an interactive computer service, telephone network, or data network, that allows users to create, share, and view user-generated content. Examples include videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail, or Internet web site profiles. (Colo. Rev. Stat. § 18-7-107.)

Posting a Private Image for Pecuniary Gain

Colorado law makes it a crime to post or distribute through social media or any web site an image that depicts the "private intimate parts" of an identifiable person:

• with the intent to obtain a financial benefit from any person as a result of the posting, viewing, or removal of the private image,  and
• without consent of the person depicted,  or
• when the perpetrator knew or should have known that the person depicted had a reasonable expectation that the image would remain private.

(Colo. Rev. Stat. § 18-7-108.)

Posting a private image for pecuniary gain is a class 1 misdemeanor in Colorado. For purposes of this law, the terms "private intimate parts" and "social media" have the meanings given above.

Invasion of Privacy for Sexual Gratification

An individual commits the crime of invasion of privacy for sexual gratification by knowingly observing or taking a photograph of another person's intimate parts:

• without consent of the person observed or photographed
• in a situation where the person observed or photographed has a reasonable expectation of privacy, and
• in order to serve the observer's own sexual gratification.

(Colo. Rev. Stat. § 18-3-405.6.)

Invasion of privacy for sexual gratification is a class 1 misdemeanor in Colorado, but a person convicted of the crime may face an enhanced sentence if the victim was a minor or otherwise especially vulnerable, as discussed in the "Punishment" section below. And, invasion of privacy for sexual gratification becomes a class 6 felony if the victim was under 15 or the perpetrator was previously convicted of unlawful sexual behavior. (Colo. Rev. Stat. § 18-3-405.6.)

The statute defines the term "photograph" to include photograph, motion picture, videotape, live feed, print, negative, slide, or other mechanically, electronically, or chemically produced or reproduced visual material. (Colo. Rev. Stat. § 18-3-405.6.)

Defenses

A person charged with these NCP crimes in Colorado may raise one or more of the following defenses.

No Intent

Both the crime of posting a private image for harassment and posting a private image for pecuniary gain require intent. If a person charged with posting a private image for harassment can show that he or she did not intend to harass or inflict emotional distress on the person depicted in the image, he or she may be acquitted. And, if a person charged with posting a private image for pecuniary gain can show that he or she did not intend to benefit financially from the posting, he or she may be acquitted.

Consent

Consent is a defense to all of the Colorado NCP crimes discussed above. However, the person observed or depicted must have consented to the observation, photography (or other depiction), and to the posting of any resulting image of his or her private parts.

No Reasonable Expectation of Privacy

Similarly, a showing that the person observed or depicted had no reasonable expectation of privacy at the time is a defense to each of the Colorado NCP crimes discussed above. So, if a person exposes his or her genitals or other private parts in a public area, an individual viewing or photographing them would have the defense that the person depicted had no reasonable expectation of privacy.

How is Nonconsensual Pornography Punished in Colorado?

Colorado law treats NCP crimes seriously and anyone convicted of one of these crimes faces jail or prison time and fines.

Punishment for Posting a Private Image for Harassment

A person convicted of the class 1 misdemeanor of posting a private image for harassment faces between six months and 18 months in jail, a fine of up to $10,000, or both. (Colo. Rev. Stat. § 18-1.3-501.)

Punishment for Posting a Private Image for Pecuniary Gain

A person convicted of the class 1 misdemeanor of posting a private image for pecuniary gain faces between six months and 18 months in jail, a fine of up to $10,000, or both. (Colo. Rev. Stat. § 18-1.3-501.)

Punishment for Invasion of Privacy for Sexual Gratification

Except as discussed below, invasion of privacy for sexual gratification is a class 1 misdemeanor in Colorado. (Colo. Rev. Stat. § 18-3-405.6.) A person convicted of the crime faces between six months and 18 months in jail, a fine of $500 to $5,000, or both. (Colo. Rev. Stat. § 18-1.3-501.)

However, if the victim is under 18 or is impaired, physically "helpless," or incapable of appraising the nature of the conduct, the court may sentence the defendant to up to 24 months in prison. (Colo. Rev. Stat. § 18-1.3-501.)

And, the crime is a class 6 felony in Colorado if the victim is under 15 or the defendant has a prior conviction of unlawful sexual behavior (Colo. Rev. Stat. §16-22-102(9)). Anyone convicted of a class 6 felony faces one year to 18 months in prison, a fine of $1,000 to $100,000, or both. (Colo. Rev. Stat. § 18-1.3-501.)

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.

And, in Colorado, a victim of the posting of a private image for harassment or for pecuniary gain can sue the person who posted the private image without the victim's consent. (Colo. Rev. Stat. §§ 18-7-107(4)(a), Colo. Rev. Stat. § 18-7-108(4)(a).) A victim who wins such a lawsuit can obtain a court order that the image be removed, monetary damages, and an award of his or her attorney's fees.

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.