Time to Ban Revenge Porn

By Kris Coffield – In the Information Age, revenge is a dish served digitally.

Holly Jacobs found that out the hard way. In late 2008, she and her longtime long-distance boyfriend, Ryan Seay, called it quits. Then, on New Year’s Day, nude photos of Jacobs were posted to Facebook. Several months later, more photos were discovered online, including a sexually explicit video that had been circulated to Jacobs’s classmates at Florida International University.

At first, Miami-Dade law enforcement officials declined to investigate the incident because Jacobs agreed to take the images, creating many of them herself to spice up her relationship. Eventually, Seay was charged with cyber-stalking, but the charges were dropped for lack of evidence. While Seay (who has been arrested for multiple crimes, including indecent exposure) maintains his innocence, the case reveals a glaring gap in our nation’s patchwork privacy protections. When someone distributes intimate photos or videos without consent, victims have little legal recourse for obtaining justice.

Jacobs’s story isn’t unique. As technology accelerates, so does the speed at which someone’s privacy can be compromised. According to the FBI, approximately 20 percent of teenagers in high school and college admit to sending nude or semi-nude photos to another person or uploading them to the Internet. Similarly, a 2012 Pew Survey found that one-third of adults aged 25 to 34 have received sexually graphic text messages, or “sexts,” of someone they know. Once released, lewd images can have a detrimental impact on a person’s life, leading to emotional distress, family rejection, job loss, sexual harassment, depression, anxiety, and in extreme cases, suicide.

In response to the shifting landscape of cyberspace, state lawmakers should criminalize “revenge porn” by passing House Bill 1750. Drafted by IMUAlliance and Pacific Alliance to Stop Slavery, this bill would outlaw non-consensually disclosing an image or video of a person who is nude or engaged in sexual activity as a misdemeanor, punishable by a year in jail and a minimum $1,000 fine. To satisfy national advocates calling for stronger deterrents, lawmakers could amend the bill to include revenge porn as an offense under violation of privacy in the first degree. A potential five-year prison sentence, $10,000 fine, and mandatory sex offender registration—the penalties for first degree privacy violation—should cause potential perpetrators to pause before acting on their anger.

Importantly, the proposed law would be enforceable no matter who creates an erotic image. Approximately 80 percent of revenge porn victims take the photos or videos themselves, according to the Cyber Civil Rights Initiative. Since the identity of an images’ creator does not change the private context in which it is made, the lack of permission when it is distributed, or the trauma that ensues when it is seen by the public, the law should treat all violations as equally invasive.

Banning revenge porn could also prevent pimps and johns from using the threat of releasing prurient photos as a means of coercing victims into sexual servitude. In cases of sex-trafficking, sexually explicit materials are often used to psychologically coerce victims who come from cultures that emphasize “shame” as a traditional value. Empowering survivors to prosecute psychological violence would have a chilling effect on those who profit from prostitution and provide police with an additional means of investigating exploitation.

Some free speech activists, such as the ACLU, claim that restricting an individual’s ability to transmit lascivious material online, no matter how inflammatory, is unconstitutional. Citing recent U.S. Supreme Court decisions affirming the protection of unsavory speech (overturning laws banning videos that show graphic violence against animals in one case, while upholding the right of Westboro Baptist Church to engage in homophobic protests in another), these groups contend that the First Amendment is a guarantor of rights, not taste. Yet, as UCLA law professor Eugene Volokh has argued, vindictive and non-consensual pornography distribution is more likely to be deemed a form of obscenity, which the Supreme Court has deemed unworthy of First Amendment protection.

Moreover, proscribing revenge porn would not impede the ability of someone to share salacious images that serve the public interest. Women who shared nude photos of former New York congressman Anthony Weiner, for example, would be protected by the Court’s reasoning in Syder v. Phelps (the Westboro case), where the majority distinguished between speech concerning public and private matters, saying that more rigorously regulating the latter does not cloud society’s interest in fostering a meaningful exchange of ideas.

Already, California and New Jersey have passed laws making revenge porn a crime. Another 13 states have introduced legislation to do so, according to the National Conference of State Legislatures. As policymakers lead Hawaii into the new millennium, they must ensure that the risks posed by 21st century innovations are balanced with their rewards.

Otherwise, iPhones will become ticking time-bombs capable of blowing apart what little privacy we have left.

Kris Coffield serves as legislative director for IMUAlliance, a nonpartisan political advocacy organization devoted to protecting democratic ideals, eradicating socioeconomic inequality, advancing educational opportunity, and animating social critique.

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