The term “revenge porn,” though frequently used, is somewhat misleading. Many perpetrators – nearly 80% according to a 2017 nationwide CCRI study – are not motivated by revenge or by any personal feelings toward the victim. A more accurate term is nonconsensual pornography, defined as the distribution of sexually graphic images of individuals without their consent. This includes both images originally obtained without consent (e.g. by using hidden cameras, hacking phones, or recording sexual assaults) as well as images consensually obtained within the context of an intimate relationship.
Nonconsensual pornography transforms unwilling individuals into sexual entertainment for strangers. A vengeful ex-partner or opportunistic hacker can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. In a matter of days, that image can dominate the first several pages of “hits” on the victim’s name in a search engine, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, and peers.
Nonconsensual pornography can destroy victims’ intimate relationships, as well as their educational and employment opportunities. Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools. Some victims have committed suicide.
Nonconsensual pornography is frequently a form of domestic violence, as abusers threaten to expose intimate pictures to prevent a partner from exiting a relationship, reporting abuse, or obtaining custody of children. It is also a tool of sex traffickers, who use compromising images to trap unwilling individuals in the sex trade, as well as rapists who record images of sexual assaults to further humiliate victims and to discourage them from reporting the crime.
While nonconsensual pornography affects both male and female individuals, evidence to date indicates that the majority of victims are female, and that female victims often face more serious consequences as a result of victimization. Nonconsensual pornography – like domestic violence, rape, and sexual harassment – thus disproportionately harms women and girls and undermines gender equality.
Our 2017 nationwide study found that 1 in 8 American social media users have been targets of nonconsensual pornography. Women were significantly more likely (about 1.7 times as likely) to have been targets of NCP compared to men.
Laws prohibiting stalking and harassment often only apply if the victim can meet the heavy burden of showing that the nonconsensual pornography was part of a pattern of conduct directed at the victim with intent to distress or harm. Such laws do not apply to perpetrators careful enough only disclose an intimate image once – though in one of the most public and permanent ways possible – or those motivated by a desire for money or notoriety rather than revenge.
Many states’ voyeurism laws have not been updated to reflect current technology, so that they may not apply to images obtained by “upskirt photos” or hidden cameras. Even updated anti-voyeurism laws generally apply only to victims whose images were originally obtained without consent, not images consensually obtained for private use by an intimate partner.
Civil suits are costly, time-consuming, and often draw further attention to the offending material. Most suits stand little chance of success because so many defendants are judgment-proof – that is, they don’t have the financial resources to satisfy a judgment. In addition, many websites and social media sites are protected from civil liability by a federal law known as the Communications Decency Act §230, which provides immunity to online intermediaries for material posted by third-party users.
While §230 does not bar copyright claims, copyright actions are often no less onerous than tort actions. Also, victims cannot bring these claims if they were not the person who took the picture or video because they would not be the copyright owners.
The ever-increasing number of revenge porn sites and victims strongly indicates that the threat of civil or copyright actions is not an effective deterrent against nonconsensual pornography.
Using criminal law to regulate this conduct does not, as a categorical matter, raise any more First Amendment issues that using civil law does. If a certain form of expression is protected by the First Amendment, it would not be constitutionally permissible for any law, civil or criminal, to regulate it. It is incoherent to argue that nonconsensual pornography can be addressed by civil law while claiming that it cannot be addressed by criminal law.
Nonconsensual pornography is, among other things, a violation of privacy. Criminal laws are often used to protect privacy, including criminal laws against unauthorized disclosures of private financial or medical information as well as laws against trespass and voyeurism. If criminal laws protecting financial, medical, and other forms of privacy can be compatible with the First Amendment, so can criminal laws protecting sexual privacy.
Some have argued that in order for a criminal law regulating nonconsensual pornography to comply with the First Amendment, it must include an “intent to harass” or “intent to cause distress” provision. Is this true?
No. Criminal law principles generally require intent: a person must intend, on some level, to commit a bad act. In the case of nonconsensual pornography, as with other privacy violations, the bad act is the disclosure of private material without consent, so the statute should require that a person do this intentionally.
“Intent to harass” and “intent to cause distress” clauses, however, are motive requirements, which criminal law principles do not generally require and which are particularly poorly suited for privacy laws. The harm of privacy violations is the disclosure of private material without authorization, not why the offender disclosed the material.
“Intent to harass/distress” provisions would render a law both incoherent and vulnerable to constitutional attack. It would allow people to distribute private, sexually explicit material unless it could be proven beyond a reasonable doubt that their motive was to harass or distress. This would mean it would be legal to distribute such material for any other motive, including for profit, entertainment, social validation, or no reason at all.
To be clear, this would mean, for example, that revenge porn site operators would be free to destroy the lives, careers, reputations, and personal relationships of thousands of people because they are not motived by a desire to harass but by a desire to make money. It would mean that the people who distributed the private, intimate photos of celebrities would be free to do so with impunity because they were just hoping to provide “entertainment.” It would mean that rapists who distribute the recordings they made of their sexual assaults on social media in order to brag about their exploits would be free to continue to do so.
Nonconsensual pornography is a particularly destructive and serious invasion of privacy. Compared to many other types of conduct traditionally punished by criminal law – e.g. theft, drug possession, destruction of property – the harm it causes is often far more severe, lasting, and irremediable. Given the immediate, devastating, and irreversible impact of this conduct, every reasonable effort must be made to prevent it from occurring in the first place. In addition to imposing appropriate punishment, criminal penalties offer the most potential for deterrence.
Teenagers are capable of committing all sorts of crimes, including murder and rape. While society may be inclined to exercise leniency in some individual cases involving young defendants, laws against rape and murder are not thrown out or rewritten simply because it is possible that teenagers may commit these crimes.
First, many victims never made their pictures available to anyone. Some are rape victims whose sexual assaults have been recorded. Some are recorded without their knowledge. Others have private images stolen from them by people they have never met.
Victims who do make intimate images available to an intimate partner have entrusted another person with sensitive information. This is no different from customers giving their credit cards to waiters, or patients giving their sensitive health information to doctors. Waiters and doctors who abuse this private information by giving it to unauthorized individuals face criminal penalties. Private sexual information deserves no less protection than private financial or health information.
Additionally, shaming people for engaging in consensual, adult sexual activity has no legal, moral, or logical basis. “Don’t take naked pictures” is no more a solution to nonconsensual porn as “don’t get in a car” is a solution to being hit by a drunk driver.
But don’t criminal laws against nonconsensual porn reinforce the idea that women’s bodies are shameful?
No, for the same reason that rape laws do not promote the idea that sex is shameful. Rather, such laws promote the idea that women’s – and men’s – bodies are their own, and cannot be used sexually without their consent.
Before 2013, only three U.S. states had criminal laws directly applicable to nonconsensual pornography. As of January 2018, that number is 38, plus Washington, D.C. Most of these laws were drafted in consultation with the Cyber Civil Rights Initiative.
In addition to working with state legislators, the Cyber Civil Rights Initiative has worked with the office of Congresswoman Jackie Speier (D-CA) and Senator Kamala Harris (D-CA) on a bipartisan federal bill addressing the issue. Originally titled the Intimate Privacy Protection Act (IPPA) and introduced in July 2016, it was re-introduced as the ENOUGH Act in November 2017. Its status is pending.
Yes. State criminal laws are necessary to address conduct that does not cross state lines or implicate interstate commerce. Federal law is necessary because state laws are limited both by jurisdiction and by the aforementioned Communications Decency Act §230, which creates high hurdles for either civil or criminal charges against website operators who host nonconsensual pornography. The Internet has greatly facilitated the production and distribution of nonconsensual porn, and federal criminal law is the most effective and appropriate means of addressing interstate crimes. The special immunity that §230 provides against state criminal laws and tort claims does not apply to violations of federal criminal law.
But would a federal criminal law mean that ISPs or online intermediaries such as Google or YouTube would likely face criminal prosecution?
The federal law would prohibit a narrowly defined form of intentional conduct that can occur on or offline. It would thus add the prohibition of nonconsensual pornography to the list of hundreds of federal criminal laws already on the books (including laws against child pornography, extortion, and identity theft) against which online entities cannot raise a special defense. Such a law would have no effect on the normal defenses any entity, offline or online, could raise, and it would include a safe harbor provision similar to those already used for copyright violations and child pornography.
First, find out if your state has a law against nonconsensual pornography.
If you are a resident of a state that does not have a criminal law against nonconsensual porn, call or email your state representatives and encourage them to pass one.
If your state does have a criminal law, find out if law enforcement in your area is receiving adequate training about this issue and responding appropriately.
If you are a legislator, official, or activist seeking information about how to draft an effective law, please see the Guide for Legislators.
Call or email your federal representatives and ask them if they are supporting Rep. Speier’s proposed federal criminal law protecting sexual privacy.
Use social media to put pressure on lawmakers, police, tech leaders, and the general public to take this issue seriously.
If you would like to donate, volunteer, offer legal services, or learn more information, please consult our website, www.cybercivilrights.org.