Revenge porn now illegal in CA: Punish criminals who violate trust

Is it any wonder victims sometimes commit suicide?  Crimes that violate our trust need to be punished. Photo: Revenge porn/ AP

WASHINGTON, October 7, 2013 — The spiteful practice of making public nude photographs of an ex-romantic partner is now illegal in California. The law, while a good start, does not go far enough, in that it only covers photographs or videos taken by the spurned ex, and not “selfies” (photos you take of yourself).

Perhaps the thinking was that if someone sends an intimate or revealing photo to another, the sender was “asking for it.” It is upsetting to imagine that California’s legislators would not want to protect victims of nonconsensual pornography.


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This omission can be fixed. The law as passed is a good start and it is long overdue.

The law is a first step in protecting victims of nonconsensual pornography.

Every state and the federal government should pass laws making this practice illegal.

New Jersey has had an “invasion of privacy” law prohibiting dissemination of private “porn” on its books since 2003. Its law can also be ramped up.


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Florida considered a revenge porn law but it did not become law because of 1st Amendment freedom of speech concerns. They should revisit their effort.

New York and Wisconsin are considering revenge porn laws. Good.

Currently, most victims only have recourse to the civil justice system when their ex does visually expose the most intimate images of the relationship to the world. Victims can file a lawsuit seeking monetary compensation for damages including embarrassment, humiliation, invasion of privacy, and medical bills for mental health care necessitated by the publishing.

Civil claims are often expensive to pursue, and usually result in uncollectible judgments. Further, even if compensation is recovered, money will not make the victims whole. Criminal prosecution and punishment are needed in addition to lawsuits.


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Volumes have been written about the purpose and effectiveness of criminal laws. We are a society of laws. Laws sustain us and guide us. Laws draw lines.  When those lines are crossed there must be consequences. While laws cannot prevent all criminal actions, without the laws society would perish.

Criminal punishment will not be a perfect deterrent to every jerk considering posting photographs of his or her partner to the world. Criminal punishment will not erase the psychological torture a victim suffers, nor will it prevent the suicide of some victims.

Nonetheless, laws must be adopted to address this criminal behavior because one of the goals of criminal laws is deterrence. Consequences can have a connection to behavior. If you know there are no consequences to posting nude photos of your ex on a website, or in sending them to your entire email contacts list, you are more likely to do so than if you know that doing so could land you in jail and paste you as a criminal for life.

Revenge and spiteful behavior are as old as human emotion, and we have seen these evils in places such as elementary schools, where little brats circulate “slam books” that contain negative and nasty comments written about the unpopular or un-liked child or children in the class. Perhaps slam books were the precursor for modern times bullying in our schools that now boldly takes form as taunting, insults, web-site postings, social media postings and physical harm.

Sending nude photographs or videos to the world should subject to the sender to felony prosecution, as should other forms of cyber-bullying.  California’s law now only subjects the one who pushes the “send” button only to a misdemeanor punishment, with no more than a fine of one thousand dollars and imprisonment of no more than six months for a first offense.

California’s law makes the conviction hinge upon “intent to cause serious emotional distress.” This is another potential loophole, as the sender could claim that the images were posted for bragging rights or for financial gain. Intent in criminal prosecutions is always a contested element.

In most places the use of a gun during the commission of a felony is a strict liability crime.  If you use a gun, you are guilty of using a gun. Period. No “intent” discussion exists about whether you used a gun. California should eliminate the intent language and make distribution the sole issue:  if you distribute a nude image or video of someone to the world without their consent, you are guilty. 

First Amendment advocates clearly would object. However, they would fail to recognize the rights of the victim.

Revenge porn, the nonconsensual public dissemination of photographs and videos of another, depicted alone or when sharing an intimate sexual moment, is of the highest order of trust being violated, and it should be punished.

When a relationship with another person develops, so does trust. As the relationship progresses, that trust increases. Sometimes things happen.  Couples end relationships, or sometimes, one in the relationship calls it over.   The ending can be devastating; it can be heart wrenching. But the trust was sacred.

Trust violations rock us. We feel this deeply when we see teachers and school coaches who take advantage of underage students, clergy who molest, or police who criminally advantage their power.

Is it any wonder victims sometimes commit suicide? Crimes that violate our trust need to be punished.

Unfortunately, but understandably, legislators are reluctant to criminalize revenge porn. Porn abounds in our society and on the web. Porn, even if described as “soft,” seems commonplace just simply considering the deluge of sexy images flashed in advertisements. Thus it not easy for a legislature to move toward outlawing displays of nudity or sex. Moreover, legislators know that outlawing revenge porn brings up 1st Amendment freedom-of-speech concerns. Revenge porn is different. 

Not all speech is protected. Laws can and should be crafted in every state, and federally, that make illegal the nonconsensual dissemination of nude images or videos of others.  This is a very simple concept that is easily defined. It should be seriously punished once proven.

Share these thoughts with your elected officials now. 

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.

 


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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