Do Revenge Porn Laws Actually Help Anyone?

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Grace Wyler

Last week, California passed a bill that will criminalize revenge porn, marking a major milestone in the push to stop vindictive cyberbullies from posting intimate photos of their exes online. Under the new law, anyone in California who distributes sexually-explicit material online "with the intent to cause substantial emotional distress or humiliation" will face up to six months in jail, as well as a $1,000 fine. 

Almost everyone who isn't Hunter Moore agrees that revenge porn is a bad thing. So on the surface, it looks like California's new ban is a positive step toward ending the hateful practice of posting private nude photos after a bitter breakup. But the legislation is rife with loopholes and ambiguities, and almost everyone agrees that it won't actually do much to help most revenge porn victims. 

The most glaring issue with the law is the exemption of selfies—a person can only be charged if he or she took the images of the victim themselves. A survey by the Cyber Civil Rights Initiative, 80 percent of revenge porn victims had taken the images posted themselves, which means a majority of revenge porn cases wouldn't be covered under California's new law. It's a strange distinction that activists believe is rooted in lawmaker prejudice against victims who took nude photos of themselves. 

"I think it unfortunately comes down to legislators blaming the victims," said Holly Jacobs, the founder of the Cyber Civil Rights Initiative and endrevengeporn.org. "The fact that they are not covering self shots indicates that they don't think those victims deserve that kind of protection. They are blaming them for getting into that situation in the first place."

Jacobs, who is herself a victim of revenge porn, added that one of the bill drafters told her that victims are "stupid" to take photos of themselves in the first place. "He actually used the word 'stupid'. It's so obvious that he blamed the victims." 

The selfie distinction is particularly bizarre in light of the ACLU's main criticism of California's revenge porn ban, which is that it could punish people who legally distribute photos that they hold the copyright to. The argument, as Motherboard's Derek Mead lays out here, is that if you take a photo of someone with their permission, you should legally be allowed to do whatever you want with it. To get around that issue, the California law sets a troubling precedent by criminalizing revenge porn as a breach of private contract. Given that most people don't sign a privacy waiver before making a private sex tape, proving that the contract existed will likely be difficult in criminal cases. 

The California law sets up an additional hurdle by requiring that the prosecution prove the defendant intended to cause the victim emotional harm or distress. While this provision may sidestep some of the First Amendment issues inherent in revenge porn bans, it also opens the doors for defendants to claim that they were motivated by financial images, or Internet fame, or peer pressure, or any of the other reasons why someone might post private nude photos online. 

"The intent to cause emotional distress actually creates more problems than it solves," said Mary Anne Franks, a Florida-based law professor and revenge porn expert. "It doesn't seem like a principled distinction to make between people who are doing this to hurt the victim and people who are doing this because they don't care about the hurt they are causing the victim." 

Franks is now working with other states to draft legislation that will offer greater recourse for revenge porn victims. In New York, state lawmakers recently proposed a revenge porn ban that would include self-shots and would not require prosecutors to prove the defendant intended to cause emotional distress.

But the legislation has already provoked an outcry from First Amendment advocates, who claim that while revenge porn is obviously detestable, unsavory images taken consensually may have First Amendment value and are thus protected by the right to free speech (see the Westboro Baptist Church). In New York, they have a potent case in their favor: Without revenge porn, the world would have never gotten to meet Anthony Weiner's Carlos Danger. 

Topics: revenge porn, Internet, sex

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