We also recommend reading our broader discussion of revenge porn legal issues based on years of representing victims of revenge porn and related conduct. There exist in many states civil remedies that allow for pursuing individuals who distribute, display, and publish private and nude images, photos, videos, and photographs of others. As we inform many who call our firm, options do exist – even if your state does not have a statute criminalizing revenge porn. With each of our clients, we consider a number of variables in determining the best strategy for a particular situation.
On April 30, 2014, Arizona Governor Jan Brewer signed into law legislation that criminally penalizes the unauthorized disclosure, display, distribution, publication, advertisement, or offer of nude or sexual images of another. To be sure, the penalties can be severe. Where the victim appearing in the images cannot be recognized, the penalty will be a class 5 felony with potential imprisonment of between 6 and 30 months. 13-702. Should the victim be recognizable, the penalty will be a class 4 felony with potential imprisonment of between 1 and 3.75 years. Id.
This statute represents a positive step forward. It criminalizes the publication of nude and sexual images of another to websites where the publisher has reason to believe the person depicted in the images has not consented to such publication. However, there do exist some issues with the statute.
To begin with, the statute could have been written a bit more thoroughly. Addressing the latter issue of consent, the statute should have made the consent issue clearer by imposing a presumption that an individual has not consented to such publication. It should have then specified that the presumption can be rebutted only by verifiable written consent of the individual depicted in the images.
Moreover, the statute does not address the culpability of revenge porn websites. In fact, it provides revenge porn websites immunity by invoking the immunity provided by 47 U.S.C. § 230. This is problematic. Many of these websites invite the uploading of content. Some websites will thereafter refuse to remove the images uploaded. Other websites will demand monetary payment to remove such images. While one can argue that such actions diminish § 230 immunity, and therefore diminish immunity under the new Arizona statute, it would be preferable to have a statute actually impose culpability on revenge porn websites – particularly those who (a) choose not to remove images upon the request of either the publisher or victim and (b) demand monetary payment to secure removal. Consequently, on this point the statute falls short.
On the other hand, the statute may have pushed too far. This statute criminalizes (in fact makes it a class 4 felony) the display of a nude image of someone to another person without the consent of the someone depicted. Being more specific, a high school senior who displays the nude recognizable image of his girlfriend to another friend without the girlfriend’s consent has committed a felony subject to more than three (3) years in prison. While this “display” is objectionable to be sure, it does not rise to the same level as publishing the image to a revenge porn website. Consequently, the terms “disclose” and “display” cause some concern in this context.
Clearly,the publication of such images to a website or any other source wherein third parties can view the images should be penalized. Moreover, the distribution of such images to a number of individuals should perhaps be penalized in the same manner. Advertising such images – where such advertisement is accompanied by the images – should likewise be penalized. (However, what if someone merely advertises images of an individual he or she does not possess? Does this advertisement receive the same penalty? Arguably, this could be defamation. If so, is this defamation a class 4 felony? What if they do possess the images but do not exhibit them in the advertisement or actually “disclose, display, distribute, or publish” them?)
However, concerns arise where the “disclosure” or “display” is limited to one or a couple individuals and no transfer of the images occurs. While certainly actionable and tortious, does this rise to the same level of criminality as publishing the images on a revenge porn website? I think not. And, particularly, concerns arise with older youth and young adults. In some situations, the display and disclosure could occur not because of revenge or an intent to cause harm to the girlfriend but rather a proud boyfriend’s desire to make others jealous of his girlfriend. While the disclosure is not appropriate and should certainly not be condoned, the mens rea certainly differs from those situations where the publisher seeks to cause harm.
The “intentionally” in this statute focuses solely on the conduct and not the desired effect of such conduct. In this regard, the statute also fails by omitting the requirement that an individual intend to cause harm. Publication to a revenge porn website should be presumptive intent to cause harm. No question. Even publication elsewhere anonymously should be presumptive of an intent to cause harm. Display to a bestfriend does not necessarily invoke this same presumption. And, by failing to address this possible distinction, this statute runs the risk of imposing a felony on anyone who naively meant no harm.
Having represented many individuals who have been victims of revenge porn and other varying degrees of having private photographs distributed, I recognize the need for action and these statutes. So, while I applaud states for enacting “revenge porn” statutes, the state legislatures need to ensure that the “revenge” aspect of the law be included. Moreover, the state legislatures should ensure that the statutes adequately contemplate the effect these penalties will have on our youth. We must deter all of the conduct criminalized in the Arizona statute. However, we also need to be cautious that we do not become too encompassing such that we criminalize naive behavior of our young where no malevolent intent exists.
The Arizona statute reads:
13-1425. Unlawful distribution of images; state of nudity; classification; definition
A. IT IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN A SEXUAL ACT IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE.
B. THIS SECTION DOES NOT APPLY TO ANY OF THE FOLLOWING:
1. LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, REPORTING UNLAWFUL ACTIVITY, OR WHEN PERMITTED OR REQUIRED BY LAW OR RULE IN LEGAL PROCEEDINGS.
2. LAWFUL AND COMMON PRACTICES OF MEDICAL TREATMENT.
3. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A PUBLIC OR COMMERCIAL SETTING.
4. AN INTERACTIVE COMPUTER SERVICE, AS DEFINED IN 47 UNITED STATES CODE SECTION 230(f)(2), OR AN INFORMATION SERVICE, AS DEFINED IN 47 UNITED STATES CODE SECTION 153, WITH REGARD TO CONTENT PROVIDED BY ANOTHER PERSON.
C. A VIOLATION OF THIS SECTION IS A CLASS 5 FELONY, EXCEPT THAT A VIOLATION OF THIS SECTION IS A CLASS 4 FELONY IF THE DEPICTED PERSON IS RECOGNIZABLE.
D. FOR THE PURPOSES OF THIS SECTION, “STATE OF NUDITY” HAS THE SAME MEANING PRESCRIBED IN SECTION 11-811.