When it comes to sex, the law has a lot to say. For something that is supposed to happen in the privacy of one’s home, we’re keenly interested in regulating what happens there.
Sometimes, in those private, consensual encounters, things go wrong. People can be victimized, and the effects can extend far beyond the room. They can even go viral.
With the proliferation of smartphones, there has been a significant increase in the number of images and videos created and distributed in the world. In fact, the relationship between law and emerging consumer tech follows a well-established formula:
First, a new gadget hits the scene. Shortly thereafter, people (usually male) adapt it for sexual purposes. Then some individuals figure out how to abuse the technology and ruin it for others. Finally, legislators scramble to come up with laws to fix the problem. Since our legislatures are filled with septuagenarians and Luddites, they are often not the ideal demographic to assess the problem.
Revenge porn, or the nonconsensual posting of nude images of an individual online, usually by a now-ex-boyfriend, is one of those newest categories of crimes that didn’t really exist until technology made every image available worldwide in an instant.
Those among us who lived in the pre-digital-photo era knew that having consensual, explicit photos developed at the Fotomat was fraught with risk. That pretty much left the Polaroid, and those were prohibitively expensive.
The challenge today is criminalizing this kind of conduct. And it’s more challenging than other kinds of criminal law in this area.
With most crimes, a victim has consented to no part of the conduct at any point. The challenge with revenge porn is often that the victim consented to some of the conduct, but not all of it.
For example, existing laws have always prohibited the peeping Tom who sets up a secret camera and captures images of nonconsenting, unknowing adults in their home or bathroom.
The law also prohibits hacking a computer and stealing images stored there.
But the situation where one adult female consents to an explicit photograph taken by another adult male, knowing he will keep the photograph? That’s a trickier one to legislate. Usually the female’s consent to the photograph is contingent upon the male’s agreement to not reveal it to anyone else. Morally it makes plenty of sense, but it might be harder to support legally as a “contract.”
First of all, these contracts are not written — can you imagine taking one to a notary? Second, there are potential free speech issues — though protecting these defendants stretches the spirit of the First Amendment. Third, and most importantly, contract remedies really don’t matter, because once a photo is posted, the harm is irreparable.
Still, criminal law has come a long way in developing penalties for these defendants. Prior to 2013, just three states prohibited the unauthorized disclosure of sexually explicit images of adults.
Now, well over 30 states and the District of Columbia outlaw it. Federal law is probably on the way too.
It’s easy to draw a line where the victims’ consent ends in these cases. They may have consented to the creation of the image. They may have consented to the continued possession and control of the image by another. If the victim sent it herself, she consented to “dissemination”—to one person.
The victim, however, did not consent to the dissemination of the photograph to everyone else in the universe. There is ultimately no consent to the invasion of privacy created by the distribution of the photos. And, as internet dissemination speeds increase exponentially, the often-analog legislatures have to try to keep pace.
