Katie Hill's Potential Revenge Porn Claim Will Be Tough to Make — Because California's Law Is Weak

Rep. Katie Hill demanded the Daily Mail take down a group of graphic, intimate images on Thursday, including one of her nude and holding a bong. The California Democrat’s lawyers argued that the tabloid committed a criminal act under California’s revenge porn law by publishing the photos.

“You have also exposed your publication to grave legal consequences for California has some of the strongest criminal laws in the United States against the secretive generation and distribution of private, sexual images,” her team wrote in the letter to the Daily Mail, according to a copy of it obtained by Politico.

But successfully prosecuting a revenge porn case in California isn’t necessarily the slam dunk her lawyers have suggested it is.

That’s because California, often lauded as boasting some of the toughest protections for people who have seen sexually explicit photos of them leak, has adopted cumbersome statutes that make it more difficult for victims to argue their cases in court.

READ: The Katie Hill sex misconduct scandal keeps getting worse

Forty-six states plus D.C. criminalize the distribution of revenge porn. But the definition of what revenge porn is — and the penalties it carries — varies significantly from state to state.

Though California was an early adopter of revenge porn laws in 2013, the state is far from possessing the most progressive form of the law.

Unlike several other states, the penalty for revenge porn in California is only classified as a misdemeanor, which carries the possibility of a six-month jail sentence and $1,000 fine. “It’s a pretty minor charge,” said Mary Anne Franks, a criminal law professor at the University of Miami who drafted the criminal statute on which many states’ revenge porn laws are modeled.

Other states, like Arizona and Connecticut, make the distribution of revenge porn a felony punishable by up to three to five years in state prison. Franks points out that crimes with relatively low penalties make them less urgent to judges, who may view the issuance of a search warrant as more trouble than it’s worth for a crime that carries such a small charge.

California also requires prosecutors to prove that the entity leaking or publishing the explicit images did so with malice, and sought to inflict distress or harm on the subject. (States like Illinois don’t carry this statute.)

“When you have these statues that have these motive requirements, you really make it hard on victims to bring successful cases, because as with all criminal laws, every element would have to be proven beyond a reasonable doubt,” Franks said.

“For instance, if you have to show that someone did this to cause you to stress, that's really hard to prove. Because a defendant can say, ‘Look, I didn't do it to cause stress, I did it because I thought it was an interesting news story,’” she continued.

It’s for these reasons that Franks said California’s revenge porn laws aren’t actually used all that frequently.

“What we have heard anecdotally, from California, is that the [revenge porn] law does not get used very often precisely because it's so hard to prove,” she said.

The Daily Mail justified publishing the photo of Hill holding a bong by claiming that it was taken several years ago, before California legalized the recreational use of pot. It also characterized a tattoo of Hill’s as “Nazi-era.”

Publication of the new photos came just a day after the House Ethics Committee opened an investigation into Hill over allegations that she had a sexual relationship with her legislative director, an affair she denies. The congresswoman has also been trying to contain the initial fallout after a conservative blog published nude photos of her with a 24-year-old campaign aide last week.

Hill strongly implied that her estranged husband, who she is in the process of divorcing, leaked the photos, in a statement she made to the Washington Post this week.

“The fact is I am going through a divorce from an abusive husband who seems determined to try to humiliate me,” Hill said. She also said that she referred the case to the U.S. Capitol Police for review.

(A spokesperson for Hill did not respond to VICE News’s requests for comment, and a spokesperson for the Capitol Police declined to comment on an ongoing investigation.)

Because revenge porn is so difficult to prove in California, plaintiffs tend to prosecute them using identity theft or computer fraud laws, which tend to be more successful in court.

If prosecutors in California decide to sue the entities that leaked and published the photos, Franks said it would be a fascinating case study in a revenge porn case being litigated in the public sphere.

“There's often extraordinary prejudice against people like her, especially women, because there's so much judgments that are often made by law enforcement officers about whether she should have ever had these pictures to begin with, whether or not it's not her fault that they were issued,” Franks said. “We've already seen the kind of really ugly sort of framing of this.”

Cover: Rep. Katie Hill, D-Calif., speaks at a press conference to introduce ACTION for National Service outside of the Capitol on Tuesday June 25, 2019. (Photo by Caroline Brehman/CQ Roll Call)