Lawmakers in several US states moved this week to outlaw so-called “revenge porn” – the act of leaking explicit sexual videos and other revealing information online without another person’s consent.
In Illinois, State Senator Michael Hastings submitted a bill Wednesday that would make it a felony for a person to knowingly place, post or reproduce on the Internet “a photograph, video, or digital image of a person in a state of nudity, in a state of sexual excitement, or engaged in any act of sexual conduct or sexual penetration, without the knowledge and consent of that person.”
The bill also would make it a crime to require a fee to get related content removed from a website. The maximum penalty would be up to three years in prison and a $25,000 fine, though judges would be able to hand down more lenient sentences at their own discretion.
On Tuesday, the Pennsylvania State Senate voted unanimously voted to approve a bill which would make revenge porn targeting minors a first-degree misdemeanor, punishable by up to five years in prison. Posting sexually explicit images of people without their permission who are 18 or older, meanwhile, would be a second-degree misdemeanor, which carries up to two years behind bars.
The bill will now be sent to the Pennsylvania House of Representatives.
Lawmakers in Arizona also submitted a bill to the state’s House of Representatives on Tuesday which would make revenge porn-sharing a Class-5 felony – the second-lowest level of felony in Arizona. If the person depicted in the footage or pictures “is recognizable,” however, the charge would be upgraded to a Class 4 felony.
Revenge porn is often uploaded by jilted lovers, although hackers often obtain comprising images of individuals as well. The sexually explicit images and video are often accompanied by personal information, including the pictured individual's full name, social media contacts and other personal information.
Apart from acute emotional stress which has pushed some victims to suicide, the practice has also contributed to offline stalking and physical assault.
Support for banning revenge porn, however, is not universal. The American Civil Liberties Union (ACLU) has often argued against it on free speech grounds, claiming the material should not be illegal as long as it does not violate child pornography or stalking laws.
In regard to a recently introduced bill in Arizona, University of Arizona law professor Derek Bambauer says the bill has First Amendment problems and is “almost certainly unconstitutional,” The Phoenix New Times reports.
“This is the trouble with some of the draft legislation floating around out there that gets copied and pasted without the intervention of legal analysis. This bill is plainly unconstitutional – it offers no exception for matters of public concern or newsworthiness,” Bambauer said.
“Here's the hypo that shows why it's DOA: I have an image of Monica Lewinsky and President Bill Clinton engaged in a sex act. I publish it in the newspaper. Can I be prosecuted? Clearly not – it's a matter of public concern (the president is having an affair with an intern, a government employee), so the First Amendment blocks the prosecution.”
US courts have a tendency to overturn legislation that restricts free speech.
So far, New Jersey and California are the only states which have enacted laws to make revenge porn a criminal offense, although bills are pending in 13 other states, according to the National Conference of State Legislatures, the Chicago Tribune reports.
New Jersey’s law makes it a felony for a person to distribute "sexually explicit" photographs and films of an individual when they know they don’t have the subject’s consent.
California’s law, which was passed this past October, makes the distribution of “intimate” photographs or films taken of a victim “with the intent to cause serious emotional distress” a misdemeanor. Unlike New Jersey, however, in California the distributor must also be the photographer to be criminally liable, and the distribution of "selfie" images is still permissible.
Last week, the FBI arrested Hunter Moore, who has been dubbed the "king of revenge porn," and an alleged accomplice in California on suspicion of hacking into email accounts to steal sexually explicit photos of their alleged victims.
Another alleged revenge porn godfather, Kevin Bollaert, was arrested in California in December on similar charges.
In January, Israel became the first country to pass a law that classifies revenge porn as a sex crime. Several EU states also have broad privacy statutes that may be applicable to revenge porn.