healthmedicinet

If you pose for a nude photo or make a sexual video of yourself should your ex-partner be allowed to post it on a “revenge porn” site without your consent?    And if this happens to you, what are your options?

Revenge porn is becoming more prevalent as lawmakers in several states look for ways to deal with it.  Monitor on Psychology (January 2014) reports that according to 2013 data from McAfee, “10% of ex-partners have threatened to post sexually explicit photos online and about 60% of those threats became a reality.”  That’s a lot of revenge!

The fact is our sexual lives are becoming less and less private.  This is an era of endless reality TV, amateur porn and social media seduction.  And of course there’s the sexual “selfie” which is practically becoming part of our courtship ritual.  One fourth to one third of young adults have received sexts according to a pew study.

Revenge porn, also known as “cyber rape”, has the potential to use this homemade sexual material to do great harm.  Laws that would make revenge porn postings a crime are under consideration in New York, Maryland, Wisconsin, Virginia and Rhode Island.

Sexual abuse or free speech?

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Despite the fact that the American Civil Liberties Union has defended revenge porn as constitutionally protected speech, New Jersey passed a law criminalizing revenge porn in 2004, and California did so in 2013.  But according to law professor Mary Ann Franks of the website End Revenge Porn,  California’s law is inadequate in that it is limited to images that were taken by someone else for the purpose of causing emotional distress.  New Jersey’s law is described as “fairly comprehensive.” 

According to Ms. Franks, existing harassment laws won’t work because they require that a broader pattern of harassment be established.  Laws against voyeurism/invasion of privacy exist but require that the material be obtained without the victim’s consent. And other avenues such as civil suits by the victim or civil liability on the part of the website are generally deemed ineffective.

Ms. Franks believes that revenge porn is a form of sexual abuse.  She also makes a strong argument that criminalizing revenge porn will not violate first amendment rights.  She states:

“There is no constitutionally protected right to consume or distribute sexually graphic images of private individuals without their consent any more than there is a constitutionally protected right to distribute obscenity or to engage in threats, harassment, or defamation.”

If revenge porn is a form of “speech” it could be considered a form of hate speech, meaning it “may incite violence or prejudicial action directed at a protected individual or group.” But hate speech laws don’t apply to revenge porn.  According to the article in Monitor on Psychology, revenge porn is not a “women’s issue” and in fact men are more likely than women to report being victims of this form of violation.

Criminalizing revenge porn

Leaving aside the question of the responsibility of those who operate revenge porn websites, It seems to me inevitable that new and better laws against revenge porn will begin to provide some deterrence.

A recent Washington Post opinion article states:

“Criminalizing nasty and uncivil conduct is not always the best course, but it is justified for revenge porn…  Whether images were made with or without a victim’s knowledge — and even if they were “selfies” sent to a lover — the nonconsensual publication of private, sexually explicit material is an act of aggression akin to sexual harassment.”

A recent Huffington Post article argues that posting explicit materials of someone without their consent should be seen as the crime of sexual harassment.  The article goes on to catalogue some of the very damaging affects that these postings have had on real people.

Sexual Harassment

The idea that someone posting explicit images of you without your consent is guilty of sexual harassment or sexual abuse seems to be the best fit so far.  But the existing laws about harassment and abuse are evidently inadequate.

If you are the victim of revenge porn, should you have to prove that you were harmed by it?  Should you have to prove that it was abusive? Or that it was posted without your consent?  Or that it was part of a larger pattern?

It seems to me that laws which criminalize revenge porn should be based primarily on the fact that it is explicit material and that it is posted non-consensually. And importantly, such laws should apply to photos and videos even if they were taken by the subject or with the subject’s consent.

 

 

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And they are apparently too stupid to realize how easy it is to ensure they are called out for their bad behavior.

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    Last reviewed: 26 Jan 2014