Revenge Porn Laws in New Jersey

New Jersey has a specific law prohibiting nonconsensual pornography, also known as revenge porn or cyber exploitation.

Revenge porn is a type of nonconsensual pornography (NCP), in which sexually explicit images of someone else are distributed in order to humiliate and harm the subject of the images. In many but not all cases, the person distributing the pornographic images is an ex-partner (hence the element of targeted revenge), but NCP can also occur when hackers break into strangers’ computers and post images of people they don’t know. NCP is also referred to as “cyber exploitation.”

In New Jersey, nonconsensual pornography, whether accomplished by an ex-partner or a stranger, is a crime. For more information about nonconsensual pornography in general, see Revenge Porn: Laws and Penalties.

New Jersey Nonconsensual Pornography Law

Not all states have statutes specifically targeting nonconsensual pornography, but New Jersey is one of those that does.

As discussed below, it is a crime in New Jersey to

  • make a nonconsensual recording that reveals another person’s “intimate parts” or shows the person engaged in a sexual act without consent
  • disclose such a recording (however made), and
  • even if the person shown consented to the recording, it is still a crime to post the recording without that person’s further consent to the disclosure.

Criminal Invasion of Privacy

Nonconsensual pornography is considered an invasion of privacy under New Jersey law. It is a crime in New Jersey to invade another person’s privacy without consent. A person commits the crime by:

  • intentionally observing, recording, and/or disclosing the recording of another individual’s intimate parts or sexual conduct
  • without the individual’s consent, and
  • doing so when the individual observed or recorded has a reasonable expectation of privacy.

The sections just below explain what the law means by “recording” and “disclosing.”

What Is a “Recording?”

“Recording” includes photographing, filming, videotaping, or any other manner of reproducing the prohibited, nonconsensual images of another individual, under circumstances in which a reasonable person would not expect to be observed. (N.J. Stat. Ann. § 2C:14-9 (1)(b).)

What Is Involved in “Distributing” or “Disclosing?”

It is also a serious crime in New Jersey for anyone to disclose a recording, however made, showing another individual’s intimate parts or the individual engaged in sexual conduct in a private setting without the individual’s consent to the disclosure. ” (N.J. Stat. Ann. § 2C:14-9 (1)(c).) For purposes of the New Jersey law, “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, publish, distribute, circulate, exhibit, advertise, or offer.” (N.J. Stat. Ann. § 2C:14-9 (1)(c).)

“Intimate Parts”

New Jersey law defines “intimate parts” as an individual’s sexual organs, genital area, anal area, inner thigh, groin, buttocks, or breasts. (N.J. Stat. Ann. § 2A:61B-1.)

Defenses

A person charged with criminal invasion of privacy may raise the following defenses to try to avoid conviction under New Jersey law.

Consent

A person commits criminal invasion of privacy by observing, recording, and/or disclosing the recording of another, as described above, but only if it’s done without the consent of the other individual. This means that if the subject consents to being observed by another, consents to being recorded, or consents to disclosure of a recording, no crime is committed.

This defense will be successful only if the judge or jury finds that the subject consented to every one of these acts. In other words, suppose a man consents to his girlfriend taking photographs of his genitalia for her personal viewing. That permission doesn’t automatically extend to posting the photographs on her Instagram account. Rather, her boyfriend must specifically consent to the posting in order for her to avoid liability. Put another way, his consent to the recording (photograph) of his intimate parts does not cover anything beyond the taking of the photograph for the girlfriend’s private viewing.

The same limitations apply to viewing versus recording. So, a couple who allows another to view them in an intimate act does not thereby consent to being recorded, even for the viewer’s private use. The person making a recording under such circumstances violates New Jersey law.

No Reasonable Expectation of Privacy

A person who intentionally and knowingly exposes their intimate parts in a public place, or who engages in sexual conduct in a public place, does not have a reasonable expectation of privacy. Perhaps you have encountered photographs online of couples having sex on public beaches in full view of anyone happening by. People who view, record, and even disclose the images of these individuals are not committing criminal invasion of privacy because there was no privacy to invade.

How is Nonconsensual Pornography Punished in New Jersey?

Criminal invasion of privacy and distributing nonconsensual pornography are serious crimes in New Jersey, subjecting those convicted of them to prison time and fines.

Punishment for Nonconsensual Recording

Any person who photographs, videotapes, or otherwise records another’s intimate parts or sexual conduct without the other individual’s consent or authority commits a crime of the third degree in New Jersey. Anyone convicted of the crime may be sentenced to a fixed term in prison of between three and five years and ordered to pay a fine not exceeding $15,000. (N.J. Stat. Ann. § 2C:43-3).

Punishment for Nonconsensual Disclosure of a Recording

Any person who discloses a photograph, video, or other recording of another’s intimate parts or sexual conduct without the other individual’s consent or authority likewise commits a crime of the third degree. Anyone convicted of this crime may be sentenced to a fixed term in prison of between three and five years and ordered to pay a fine not to exceed $15,000. (N.J. Stat. Ann. § 2C:43-3).

A Civil Lawsuit for Invasion of Privacy

A person who invades another’s privacy in New Jersey as described above may face liability for civil damages, in addition to a criminal penalty. (N.J. Stat. Ann. § 2A:58D-1.) New Jersey law gives a victim of a nonconsensual recording of their intimate parts or sexual conduct the right to file a civil action in which they may seek:

  • actual damages (that is, any losses or expenses associated with the violation) of not less than $1,000 per violation
  • attorney’s fees, and
  • punitive damages.

As with criminal invasion of privacy in New Jersey, the subject’s consent or lack of a reasonable expectation of privacy may be a defense in such an action.

Copyright Protections

In addition to reporting a potential criminal invasion of privacy and/or filing a civil lawsuit, 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

Engaging in nonconsensual pornography is a serious crime. If you have any questions about nonconsensual pornography or any other sexual crime, contact a lawyer experienced in criminal defense law in your state.

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