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Why Is It So Hard to Write a Decent Revenge Porn Law?

The first federal law against revenge porn could be in the works. Too narrow and victims won't be able to get justice; too broad and the law will nail innocent parties.

Steven Yoder

Image by Sarah MacReading

If you were betting on a proposal that would become law this year, few seemed less controversial than the Rhode Island bill to outlaw revenge porn. The bill, sponsored by Democrats in both state chambers, passed the Senate unanimously in late May. A few weeks later, it won in the House by 68 to 1.

But just one vote was needed to kill it—that of Governor Gina Raimondo, a Democrat who vetoed the bill on June 20. It was her first veto in 18 months in office.

The language of Raimondo's veto message closely followed that of opposition letters written by the ACLU and two state-media coalitions, which warned, among other objections, that the bill was overly broad. The legislation would have criminalized, for example, a person who forwarded to a friend the hacked nude photos of Jennifer Lawrence after they'd been posted online.

So now there's no law, and it's the victims of revenge porn in Rhode Island who are paying the price, according to Amy Kemp, spokesperson for State Attorney General Peter Kilmartin, who told VICE that victims continue to contact the attorney general's office asking for help. Last January, Kemp said a woman went to the state police to report that her ex-partner had posted her nude photos online. Those were still public as of last December, and without a new law, there's nothing the attorney general can do about it.

No one disagrees that revenge porn—distributing private sexual photos and videos to get back at an ex—is wrong and should be punished. When sexually explicit photos and videos are shared online, victims lose jobs, are forced to change their names, and may contemplate or attempt suicide. In a 2014 survey of 361 revenge porn targets, about a third said they'd been harassed or stalked in person as a result. More than one in ten quit or were fired from their jobs or dropped out of school, and half thought about suicide.

The problem, though, is figuring out how to effectively criminalize it—an issue yet again on display now that a federal revenge porn bill has been introduced in the United States House of Representatives. If the language is too narrow, groups like the Cyber Civil Rights Initiative (CCRI), an advocacy group for revenge porn victims, argue many of those who are victimized won't be able to get justice. If it's too broad, groups like the American Civil Liberties Union say the law will nail innocent parties.

On Motherboard: Why Isn't Revenge Porn Illegal Everywhere?

Representative Jackie Speier, who announced the Intimate Privacy Protection Act last month, is hoping to toe the line. The legislation is her second try at a federal nonconsensual porn bill, after last year's version went nowhere.

"What makes these acts... despicable is that many predators have gleefully acknowledged that the vast majority of their victims have no way to fight back," Speier said in a press release shortly after the bill was announced on July 14. "Even more disturbing is the number of victims who have mustered the courage and strength to pursue criminal charges, only to learn there is no law that protects them."

Image by Sarah MacReading

The legislation would federally criminalize the "knowing" distribution of sexually explicit photos or videos of a person with "reckless disregard for the person's lack of consent." Mary Anne Franks, vice president of the CCRI and a University of Miami law professor, told VICE she worked closely with Speier's office on the bill. She also said she "went several rounds" with the ACLU to iron out their objections.

But the ACLU is far from satisfied. "Right now, this bill doesn't come close to being narrow enough [to pass constitutional scrutiny]," Lee Rowland, an ACLU senior staff attorney, told VICE. Rowland also denies that Speier's office made any effort to take their critiques seriously, adding that "there have been no meaningful changes made to the bill" in the year since the ACLU contacted Speier's office.

Rowland claims three omissions put the bill at odds with the First Amendment. First, prosecutors should have to prove that a perpetrator actually intended to harm the victim. Second, they should have to show that the accused knew the victim didn't consent to the image being shared. And third, they should prove that the victim expected the image to stay private.

Without those, she says the margin for error is too high. Consider a woman goes on a date, after which the date sends her a nude photo of himself (not an uncommon scenario). The woman feels harassed and forwards the picture to a friend to get advice. Voila, Rowland says—she's just committed a crime under Speier's law.

But Franks says that's unreasonable. True, the woman could theoretically be charged, but police and prosecutors aren't going to take that case. "We can't get [prosecutors] to take cases in which women are being stalked, harassed, and sexually assaulted," she told VICE. "There's no evidence to suggest they're going to be chasing down cases like that." (Rowland pointed out that courts don't uphold laws that depend on prosecutorial discretion to not catch unintended victims in their net.)

Franks also argues that the ACLU's suggestions—particularly the "intent to harm" provision—would prevent prosecutors from going after many cases of revenge porn. Take a revenge porn website that traffics those images for profit. With an "intent to harm" clause, the operator couldn't be charged if he could show that profit was his motive. Other perpetrators are motivated by publicity or status, all of which would remain "legal" forms of nonconsensual porn.

"Many prosecutors believe it's almost impossible to prove intent when it comes to the disclosure of these photos because the motives are so mixed," Franks told VICE. (Rowland disagrees—even with an intent to harm clause, she says a reasonable jury would convict someone who posted another person's nude photos.)

Related: How to Protect Your Nude Selfies From Vengeful Ex-Boyfriends and Trolls

Jeff Hermes, deputy director of the Media Law Resource Center, a nonprofit serving the media industry, says it's not surprising that opponents have taken on new nonconsensual porn laws.

"The tricky thing about this legislation is that you're applying serious criminal penalties to really private interactions—understandings that happen in the bedroom," Hermes told VICE. "That's always a thorny place for legislators to go."

For now, there are 34 states with nonconsensual porn laws. Twenty-three have the "intent to harm" requirement in their laws; the other 11 don't. Neither Rowland nor Franks could point to research showing the effect of these provisions one way or another. But on the state level, laws have been challenged for being overly broad. In Arizona, a 2014 revenge porn law was put on hold by a federal judge, who ruled the law was unconstitutional and could punish, for example, a professor who shows his students "the iconic Pulitzer Prize-winning photograph, 'Napalm Girl,' which shows a girl, unclothed, running in horror from her village.'"

In March, Arizona passed a new version of the law, this time with an "intent to harm" clause. A few months before it passed, the bill's sponsor, J. D. Mesnard, got a call from a woman whose ex-boyfriend was threatening to post her nude photos online.

Mesnard told the woman to have a lawyer to advise her ex that the new bill was on its way. And it worked. The woman called him back to say that the ex never followed through.

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