So your ex dumped you, or you caught them having sex with someone else. How do you get-even? Why by posting naked pictures or video of them, or even better, pictures or video of them “in the act” on the Internet, of course! So goes the thought process of many people apparently, because such pictures and video have been littering the Internet for some years now. I won’t dignify them by providing names or links, but there actually exist websites which will pay you for pictures or video, or which simply urge you to gain revenge by turning the material over to them, which they then use to generate cash by allowing paid access to the collected material.
For the sake of discussion, it’s important to distinguish “revenge porn” from other dissemination of such material onto the public Internet. The key factor is it is done against the wishes of the victim, sometimes in retaliation for some perceived act committed against the perpetrator, but always with the knowledge and intent to humiliate, embarrass or harass the subject. Even so, it is a complex topic, and evokes a range of different reactions. For example, if you participate in an obviously consensual sex tape with your partner, many have little sympathy for you when it makes its way onto the Internet. The person disseminating it may be a vile, despicable individual who gets satisfaction from showing his/her “conquests” to the world, but if you were foolish enough to participate willingly, it’s your own fault, or so goes the argument. Or perhaps your wife catches you on a hidden camera cheating on her with the babysitter, and puts the video on the Internet in a fit of jealous rage. Many might actually see a certain justice in that! Salon.com published an article last year in which they wrote:
“Imagine a woman does a Google search on her own name and up comes a page featuring a naked photo that she sent to an ex-boyfriend. There are links to her Facebook, Twitter and LinkedIn account. In the comment thread, anonymous trolls critique every inch of her body. Perhaps her home phone number and address are also included. Say she contacts the local police in tears, only to be told that the post is perfectly legal — or worse, that “boys will be boys.”
This is becoming an increasingly common scenario, activists say, given the proliferation of “revenge porn” and the legal system’s failure to catch up with it.”
Well it seems the legal system may finally be catching up. Through the modern miracle that is Billtrack50.com and its advanced search and analysis tools, we can see there are currently 55 different pieces of state-level legislation dealing with the phenomenon of revenge porn in one fashion or another. These address the issue in a range of different ways. Florida for example has introduced S0532 which criminalizes the dissemination of any sexually explicit material with the intent to harass, and which the perpetrator knows or should now the subject does not consent to the disclosure. Pennsylvania’s SB1167 adds the crime of intimate partner harassment as a form of assault. Washington state seeks to amend existing law with HB2257, the key to which is criminalizing disclosure of the material in question with intent to cause emotional distress.
I have not done a comprehensive review of all the pending legislation, but one of the things that has struck me in the pieces I have read is that all are careful to tread around the issue of First Amendment rights by focusing on the intent of the perpetrator to cause distress to the object of the material he or she is disclosing. This of course is important, because a primary defense claimed by pornographers with reasonable success over the years has been a First Amendment protection of their material. On its face, the issue of revenge porn has the appearance of a classic conflict between the First Amendment and a person’s right to privacy, to whatever extent one assumes such a right exists, being as it has not been enumerated like so many other liberties. This is why I was careful to specify what revenge porn is and is not at the top of this post. There still exists a gray area when one deals with sex tapes that have been made consensually, and I have no doubt there will be many instances where it comes down to the credibility of the contending parties in front of a judge or jury, and the ability to demonstrate an intent to harass or cause distress on the part of the accused perpetrator. In this respect, it remains to be seen how good a job any such legislation does in protecting victims of revenge porn. In the end, someone possessing such compromising material still retains a great deal of leverage over the subject. If such pictures or video are obtained without the subject’s knowledge, that is another matter, and may be cause for prosecution under different criminal statutes. But in the case of consensual pictures or video, the best advice is if you don’t want them out on the Internet, it’s best if they are never made at all.
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