Bills differ in how they enforce the law, punish those who break it
By Ben Giles
The Daily Record Newswire
PHOENIX, AZ — Sparked by a new law approved by the California legislature this fall, Arizona is one of several states where lawmakers are proposing bills to criminalize “revenge porn.”
State lawmakers in Maryland, New York and Wisconsin have already announced intentions to introduce bills that would outlaw publishing sexually explicit photos or videos of someone without his or her — most often her — permission.
Now Rep. J.D. Mesnard is pushing Arizona into the fold. The Chandler Republican told the Arizona Capitol Times he’s asked legislative staff to draft a bill, similar to the measure signed into law in California in October, to criminalize the practice in Arizona and give authorities a clear path to prosecute cases.
Mesnard insisted he’s had no personal experience with revenge porn, nor does he know anyone personally affected by the act, but decided to take up the issue after reading news reports about cases of revenge porn and California’s new law.
The most talked-about instances of revenge porn — a jilted ex-boyfriend or ex-lover taking advantage of a compromising photo and posting it online — shouldn’t be allowed, Mesnard said.
“People get into a relationship, they — unwisely in my view — take pictures of each other in less-clothes states of being, and then their relationship goes sour and then they decide to post those on the Internet in order to humiliate the other person,” Mesnard said. “I think that’s messed up. That shouldn’t be OK.”
California is only the second state in the nation to pass a law specifically banning revenge porn. But like the other states now attempting to do the same, balancing protecting an unsuspecting victim of having a lewd portrait posted online and First Amendment rights has proved difficult. According to the Cyber Civil Rights Initiative, founders of the campaign End Revenge Porn, California’s new law wouldn’t apply to roughly 80 percent of instances of revenge porn.
University of Miami associate law professor Mary Anne Franks, a Cyber Civil Rights Initiative board member, said her organization is working with California lawmakers to make suggestions on changes to the law.
Franks and others are also working to help draft legislation in Maryland, New York, Wisconsin and other states, as well as federal legislation.
Each bill takes various routes to create a deterrent to revenge porn, differing in how they enforce the law and punish those who break it.
New Jersey
The Garden State became the first in the country to pass a law specifically criminalizing revenge porn in 2004. Franks, a Cyber Civil Rights Initiative board member, applauded the New Jersey law as one ahead of its time. The state was one of the first to recognize the severity of revenge porn and the lack of an existing law that allowed an easier method of prosecution, she said.
New Jersey officials also gave the law enough teeth to serve as a deterrent, threatening those convicted of posting lewd images or video of someone without license or privilege with a third-degree crime, punishable with a prison sentence of 3 to 5 years.
Franks said such a penalty is supportive of victims.
“It’s a much more serious type of law,” she said. “It’s impressive to us that back in 2004, New Jersey recognized this as a criminal invasion of privacy.”
Franks is aware of two cases where an individual was prosecuted using New Jersey’s revenge porn law, including that of former Rutgers student Dharun Ravi. He was sentenced to 30 days in jail after being found guilty of 15 charges related to video Ravi took of his roommate, Tyler Clementi, having an intimate encounter with an older man. Days later, Clementi committed suicide.
California
In October, California became the nation’s second state to sign an anti-revenge porn law into effect. But leaders with the Cyber Civil Rights Initiative say there are too many holes in the law for it to be effective.
The so-called “selfie loophole” — the law does not cover sexually explicit images or video taken by the victim — leaves a majority of revenge porn victims vulnerable under the law, according to Franks.
Roughly 80 percent of revenge porn cases start with a “selfie,” according to an online survey on the Cyber Civil Rights Initiative’s website.
For those cases that could be prosecuted, it may be difficult to prove another requirement under the law — an “intent to cause serious emotional distress.”
Franks said that language creates an unnecessary burden for prosecutors when trying to demonstrate intent beyond a reasonable doubt. An additional requirement that the victim must suffer emotional damage could require “potentially invasive and humiliating testimony” in trial on the part of the victim, Franks wrote in a memo to California lawmakers, who are considering amendments to the law in next year’s legislative session.
Maryland
With the help of Franks and University of Maryland Professor Danielle Citron, Maryland State Delegate Jon Cardin has drafted legislation similar to New Jersey’s revenge porn law that the Cyber Civil Rights Initiative praised for its specificity.
A draft of the bill contains detailed definitions of what constitutes a sexual act or sexual conduct, as well as the meaning of “intimate parts.”
The definitions ensure that any sort of compromising photo or video — even one that, for instance, doesn’t depict a female’s chest or pubic area, but shows the person in a sexual act — would be covered under the law.
And unlike California’s recently passed law, the Maryland bill would treat revenge porn as a felony, not a misdemeanor, with prison sentences of up to five years. Those found guilty could also be subject to a $25,000 fine.
The investigation required to prosecute someone in a revenge porn case is worthy of a more serious conviction, Franks said. She added that it can be difficult to persuade a judge to issue a warrant allowing police to seize someone’s computer when the penalty for a crime is simply a misdemeanor or punishable with a six-month jail sentence.
“It’s one of the only ways you can get law enforcement and DAs to take this seriously,” Franks said.
New York
Another issue with the California law is something Franks said she’s trying to address in legislation being proposed in Maryland, Wisconsin and New York — providing clear exceptions in the bill that outline instances where prosecution wouldn’t be appropriate.
Franks, who’s advising New York Assemblyman Edward C. Braunstein and Sen. Joseph A. Griffo on a bill the lawmakers are planning to introduce, said providing narrow exceptions in the New York law will prevent any unintended consequences.
Lawmakers should “carve out certain things to make clear that this would not penalize someone if they, for instance, were reporting unlawful conduct,” Franks said. “Say you observe a sexual assault, take a picture and take it to the police. You wouldn’t want to penalize that.”
Another exception would protect someone who reports a sexual image in the public interest — the case of New York mayoral hopeful Anthony Weiner being the most recent example. Franks said lawmakers don’t want the law to be used to punish the woman who came forward with Weiner’s latest series of online interactions.
