A man who tweeted nude photos of his ex-girlfriend to her sister and employer has had his charges thrown out.
New York's first case of "revenge porn" is being labeled a botched effort because the state lacks laws sufficient to convict such offenders, New York Daily News reports.
Ian Barber, 29, was charged with aggravated harassment, but he didn't communicate with the victim during the alleged crime. He was charged with dissemination of unlawful surveillance, but he obtained the material legally. He was charged with publicly displaying offensive sexual material, but New York law doesn't consider Twitter as "public display."
"The Court concludes that defendant's conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged," Criminal Court Judge Steven Statsinger wrote in a decision, published last week.
The Brooklynite uploaded the photos of his ex in July 2013. Police charged him with the three counts, but with no laws that address sharing lewd content without the consent of the individual portrayed, authorities failed to make a case. Only New Jersey and California have such laws.
To be certain, that's what "revenge porn" is: Sharing naughty photos and video, typically as retribution against a former lover. But revenge porn isn't a crime on its own, and columnists in New York are having a field day with Barber's case.
Lost in all of this legal analysis is the nature of intent. Why else would Barber share naked photos of his girlfriend with her sister, her employer, and, more importantly, the millions of people on Twitter? You do something so twisted to shame a woman, hurt her career, and bombard her with a cyber stream of sexual and malicious remarks.
But it’s not just Barber’s intent that’s being ignored or dismissed—it’s his girlfriend’s. Another major factor that led to Barber [sic] clearance was the fact that he did not obtain the naked photos of his girlfriend through “unlawful conduct,” i.e. he did not secretly film her against her knowledge.
She consented to the photos being taken, however, but the issue of consent when it comes to use if a completely separate. In the eyes of the Manhattan court, it did not matter that she never gave Barber permission to share those photos.
"It's a textbook example of why there's a gap in the law," University of Miami Law School professor Mary Anne Franks told CBS News’ Crimesider. "Given the charges levied against this defendant, none of them were applicable in this case."
That said, expect to see more revenge porn laws passed in the future. According to lawyer Steven Brill's blog on HuffPost:
Legislatures in other states like Hawaii, Wisconsin, Maryland and New York are strongly considering new laws that will specifically address this issue. For example, New York State Senators Griffo and Braunstein are introducing legislation that makes the non-consensual disclosure of sexually explicit images an A misdemeanor, which is a crime that is punishable by up to one year in jail.
The legislation is just a few small steps in a long, long walk, but it's something.