The Growing Trend of 'Revenge Porn' and the Criminal Laws That May Follow

When one hears the words "revenge porn," the images conjured up are not pleasant ones. The term revenge porn stems from the idea that a way to get back at -- or take revenge -- on an ex may be to publicly send out nude or sexually compromising images of the ex by means of the web. Given the ease at which one can take a picture, edit it and disseminate it, this type of conduct is happening more frequently. As with anything that moves as fast as the tech world -- take cell phones and social media for instance -- police departments and DAs are trying to figure out just how our justice system will deal with this new trend.

People v. Barber, the first "revenge porn" case of its kind, was brought in New York Criminal Court by a woman who alleged that her boyfriend sent pictures of her naked body to her sister and her employer. The ex-boyfriend was arrested and charged with aggravated harassment, dissemination of unlawful surveillance and public display of offensive sexual material. Notably, in looking at these charges, it becomes very clear, very quickly, that the defendant was not charged with specifically doing what he actually did -- which is sharing explicit images without the consent of the person in the images. The reason for this is quite simple: New York has no law that specifically proscribes this "revenge porn" conduct.

This reality made headlines this past week when a New York County Criminal Judge dismissed this "first case of its kind" for exactly those reasons: This conduct is not covered by the crimes charged against the boyfriend. Specifically, the judge reasoned that the harassment charge did not apply because the images (or communications) were not sent directly to the girlfriend. The unlawful surveillance charge did not apply because the images were obtained lawfully and with the ex-girlfriend's consent. Lastly, the public display of offensive material did apply because, well, nudity in and of itself is not offensive material. Ultimately, although the judge recognized that the girlfriend did not grant permission to her boyfriend to send the images, no laws in New York could support the criminal charges.

Needless to say this dismissal spurred some debate; debate especially among lobby groups and the legislature to enact laws to counter this behavior. Currently, two states -- New Jersey and California -- have laws directly addressing conduct that involves the dissemination of explicit material without the consent of the pictured person. 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. In Maryland, a candidate for state attorney general is proposing new legislation that would make it a felony -- more serious than a misdemeanor -- to intentionally distribute sexually explicit digital images of another person without consent. In California already, Governor Jerry Brown has enacted a law making revenge porn a misdemeanor.

Of course, these laws have imperfections. For one thing, the First Amendment presents support for the argument that one should not be arrested, let alone imprisoned, for publicizing its speech -- in the form of these photographs or images. In fact, some suggest that the criminal law is the inappropriate venue in which to deal with this conduct. After all, the conduct is non-violent and a mere example of a somewhat harsh freedom of expression. Instead, perhaps the better course of action is to file a civil suit for the damages this conduct may cause.

Clearly, the writing is on the wall. It would not be shocking if New York enacts Senator Griffo's and Braunstein's bill this year. Other states will surely follow. Times continue to change, and the criminal laws will continue to change with it.

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