Not So Revenge: Prosecuting Revenge Porn in the Internet Culture
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“The law and its response on revenge-porn/cyber-exploitation in modern internet culture!”
By: Ian L. Courts¹
Revenge porn or the posting of intimate pictures of another person for the purpose of shaming them or embarrassing them on the internet is something that has impacted modern American society primarily within the last twenty years. [1] The impact of revenge porn has been felt globally, and the victims impacted by the act continue to feel the impact of the violation of their trust. Concurrently, the prosecution of revenge porn has been limited since its inception in 1980 but has grown more robust within the last decade. This discussion will focus on the various policy approaches used by various governmental officials to prosecute revenge porn.
In the case of the State of Vermont v. VanBuren (2019), the Court held that the state’s statute banning the publishing of “nonconsensual porn” [2] was constitutionally valid because it was narrowly tailored to fulfill a compelling government interest in regulating speech that publishes a persons private information without their consent.[3] However, the Court did not determine that the publishing of revenge porn was in all aspects illegal or protected under the state or federal constitution, nor did it find that it rose to the level of obscenity. Moreover, the Court normalized revenge porn as “remarkably common.”[4] Despite the Vermont Supreme Court’s determination that the publishing of intimate photos of another adult person without their consent was not obscenity, the Court did send a strong signal that regardless of the normality of publishing revenge porn, the state has a compelling interest in both prosecuting and combating revenge porn acts and offenders.
Another example of American politics, on the federal level, combating revenge porn was Senator Kamala D. Harris of California’s, now Vice President of the United States of America, Ending Nonconsensual Online User Graphic Harassment Act (ENOUGH Act) of 2017. The act received bipartisan cosponsors, and national media attention.[5] The ENOUGH act would have criminalized the publishing of sexually explicit material without the consent of the other person or beyond their consent, carrying a penalty of a fine or imprisonment of not more than 5 years. [6] The bill sought to bring public attention to the pervasive impact of revenge porn and encourage people to become more aware of the prevalence of revenge porn, while also making it a federal crime to do so. When asked about the importance of the Act, Senator Kamala Harris stated “People do it to torment people. They do it to make money. And to call it pornography is to misunderstand the problem, because there’s no consent. It’s “cyber exploitation,” and let me tell you how it ruins lives.”[7] The ENOUGH Act was referred to the Senate Judiciary committee but has yet to be considered or voted on by the Committee or the general body of the Senate. The ENOUGH Act if ever passed would send a national signal to cyber exploiters that their acts would not be tolerated and more importantly prosecuted to the fullest extent of the law.
In Pennsylvania revenge porn is prosecuted under the state’s harassment statute specifically 18 Pa.C.S.A. Crimes and Offenses § 3131 which defines revenge porn as “a person commits the offense of unlawful dissemination of intimate image if, with intent to harass, annoy or alarm a current or former sexual or intimate partner, the person disseminates a visual depiction of the current or former sexual or intimate partner in a state of nudity or engaged in sexual conduct.”[8]The statute grades it as an misdemeanor of the first degree if done to a minor, and misdemeanor of the second degree if done to an adult. The Act mandates that a person who is found guilty of the act can be sentenced to a up to a year in prison. [9] Pennsylvania’s unlawful dissemination of an intimate image statute is another example of a state legislature prohibiting the act of cyber exploitation though grading it as a misdemeanor does not send a particularly strong signal in light of the ENOUGH Act’s potential penalty.
Another example of a state supreme court allowing a state statute prohibiting revenge porn is the State of Indiana v. Katz, №20S-CR-00632 (Ind. 2021). In Katz, the Court held that the State properly charged the defendant-katz for violating state statute Ind. Code 35–45–4–8, which makes the publishing of sexually explicit images without the consent of the other party a misdemeanor.[10] The Court held that the publication of sexually explicit images without the consent of the victim constituted a “unique and significant harm to victims in several respects.”[11]The Court’s decision was a tremendous win for those who oppose revenge porn and want to see victims receive justice and offenders prosecuted. Indiana’s Court spent an extensive amount of the opinion describing the dangers of cyber-exploitation and how speech that expresses these detrimental acts while not uniformly upheld under free speech principles.
In each of the proceeding jurisdictions, revenge porn prohibitions whether through statute or judicial decision has been upheld by state courts, and the progress toward a federal revenge porn act has picked up some traction. Despite the normalization of revenge porn the public and the State are changing their tune and taking seriously the risk revenge porn has on public interpersonal interactions, and the need for robust prosecutions against is occurrence. [12]
[1] Alexa Tsoulis-Reay, A Brief History of Revenge Porn, New York Magazine (July 19, 2013), https://nymag.com/news/features/sex/revenge-porn-2013-7/. (The revenge porn phenomena first appeared in 1980s but became widespread in 2010).
[2] Vt. Stat. Ann. tit. 13, § 2606.
[3] VanBuren, 210 Vt. at 308.
[4] Id. at 321–22.
[5] Kamala Harris sponsors bill making revenge porn a federal crime, San Franciso Chronicle “https://www.sfchronicle.com/politics/article/Kamala-Harris-sponsors-bill-making-revenge-porn-a-12390432.php?jwsource=cl”
[6] https://www.congress.gov/bill/115th-congress/senate-bill/2162/text
[7] “Kamala Harris’ Crusade Against Revenge Porn”, Politico, https://www.politico.com/magazine/story/2019/02/01/kamala-harris-porn-california-attorney-general-facebook-twitter-silicon-valley-224534/
[8] 18 Pa.C.S.A. Crimes and Offenses § 3131. Unlawful dissemination of intimate image.
[9] Id at subsection a.
[10] State v. Katz, 179 N.E.3d 431 (Ind. 2022).
[11] Id.
[12] “An Update on the Legal Landscape of Revenge Porn” National Association of Attorney Generals (2021) https://www.naag.org/attorney-general-journal/an-update-on-the-legal-landscape-of-revenge-porn/#identifier_35_21493 (“So far, state supreme courts have dismissed all constitutional challenges to existing state revenge porn laws.”)
[1]: About the Author: Ian Courts is a young millennial attorney with expertise and a passion in American and international law and politics. Ian received his BA in Political Science from the University of North Carolina at Greensboro in 2017, in 2020 he received his J.D. from North Carolina Central University School of Law, and in 2022 Ian received his LLM in International Criminal Law and Justice from the University of New Hampshire School of Law. Ian lives in Philadelphia where he is an appellate lawyer and the proud fur-dad of two American Cocker Spaniels.
