“The moral of the story is he doesn’t respect me . . . . If you can’t respect me, you have to respect the law.”1
INTRODUCTION
“Quick go in bathroom take quick pic for me . . . Do it u know u beautiful always to me,” he said.2 She obliged.3 The very next day, the picture was on Instagram: “This is from Chyna yesterday to me. I never been so disrespected in my life . . . . This woman is so disrespectful and I don’t care.”4 Calls of “revenge porn” ran rampant in the press: Rob Kardashian posted revenge porn to “slut-shame” his ex, Blac Chyna.5 The pictures, which Kardashian allegedly posted in response to learning that Chyna, his former fiancée, was dating someone new, went viral, with images of Chyna’s naked body seemingly ubiquitous on the internet. As one may expect, an abundance of sexually-charged slurs and other disparaging comments followed.6
It is a story that is becoming increasingly familiar: an ex-paramour is overtaken by jealous rage and resorts to sharing sexually explicit content online to seek vengeance.7 Although content of this nature can be uploaded in a matter of seconds, the effects on its subjects are devastating and long-lasting. Victims are not, however, without legal recourse. Revenge porn,8 known less colloquially as “non-consensual pornography,” is a nascent legal doctrine that seeks to impute criminal liability to those who engage in behavior analogous to that of Kardashian.9 Generally, revenge porn occurs when an individual knowingly or intentionally disseminates an image depicting nudity or sexually-explicit content without the consent of the pictured subject.10 It is not dispositive, as regards liability, whether the image was initially obtained with the subject’s consent; rather, it is the absence of consent to the image’s distribution that renders the perpetrator in violation of the law.11
This dispositive factor—namely, the lack of consent to the image’s dissemination—was decidedly at play within the Chyna-Kardashian episode, and it is on this ground that Chyna is empowered to initiate a criminal action against Kardashian.12 She is able to do so because California, where the scandal occurred, is one of forty-three states plus Washington, D.C. to have criminal revenge porn legislation.13 Under the California statute,14 then, Kardashian may face potential jail time and/or fines15 should Chyna elect to take him to court.
The growing criminal framework for revenge pornography, coupled with the prevalence of social media use for sexual purposes,16 is invaluable in its capacity to provide legal recourse for victims of revenge porn. This becomes apparent through analysis highlighting the infectiveness of available civil and copyright means.17 The particular shortcomings of those legal channels affirm that the criminal law is the best legal forum within which victims of revenge pornography can seek remedies for their suffered wrongs.18
There is, however, among the existing criminal statutes, a spectrum of efficaciousness by which victims can achieve rectification. One strand of legislative thought proffers a legislative prototype quite narrow in scope—one which, in effect, renders the perpetration of revenge porn a specific intent crime through its requirement of the “intentional infliction of emotional distress” and its actual effectuation.19 This type of revenge porn statute is problematic in that it: (1) necessarily precludes a finding of criminal liability for perpetrators who acted under other, non-affective motivations; (2) gives rise to an additional, onerous evidentiary burden that requires proof of mental state; and (3) speciously frames revenge porn as a crime of vengeance rather than as the grave breach of privacy that it is.20
In its place, this Note proposes the widespread adoption of an analogue to Illinois’ statute,21 which, among several other redeeming facets, does not possess a specific intent element such as the “intentional infliction of emotional distress.” A statute of this nature more effectively allows for the successful prosecution of perpetrators who acted not to inflict emotional harm on their victims, but rather to achieve pecuniary gain, sexual gratification, notoriety, and the like.22 The Illinois statute’s framework, and its more inclusive and comprehensive scope, better situates victims of revenge porn to attain remedies for the harms incurred through the breach of their reasonable expectations of privacy.23
Part I of this Note lays out the elements and effects of the perpetration of revenge porn. Part I additionally highlights the inadequacies of civil and copyright channels for remedying revenge porn perpetration and sets up the preconditions and justifications for the criminalization of revenge porn. Part II presents an overview of the current state of the criminal revenge porn scheme and analyzes the shortcomings of statutes employing specific intent provisions. Part II posits that vindictive motive clauses do more to hinder victims’ access to justice than they do to facilitate it, as they are problematically narrowing, duplicative, and even superfluous from a constitutional standpoint. Part III proposes the ubiquitous adoption of a statute comparable to the Illinois statute, as its lack of a vindictive motive clause, among other redeeming elements, appropriately makes the criminalization of non-consensual porn less about revenge and more about privacy, which more comprehensively imputes liability to those in violation of the law. Part III also suggests that the Illinois legislature amend the statute to include a provision for the use of pseudonyms to ensure confidentiality for victims so as to not re-traumatize them, and so as to incentivize victims to utilize the legal system as a means of relief. This Note recommends that the Illinois statute, which lacks a specific intent clause, be deemed archetypal legislation, notwithstanding its current lack of a pseudonym provision, so as to more strongly deter potential perpetration of revenge porn and better achieve justice for revenge porn victims.
I. BACKGROUND
A. The Elements and Prevalence of Revenge Pornography
Revenge porn involves “the distribution of sexually graphic images of individuals without their consent.”24 This includes images and videos originally obtained with (like in an intimate, romantic partner relationship) and without (like by hidden recordings or phone hacking) the consent of the pictured subject.25 It is not significant from a legal standpoint whether the creation of the image or video was consented to: it is only significant that its public distribution was not.26 This is a powerful standard. First, it avoids victim blaming and “slut shaming.”27 Second, it accounts for the fact that many revenge porn victims never willingly made their pictures available to anyone in the first place, like in the case of a recorded rape, a hidden camera, or even hacking.28 Finally, it escapes imbuing the law with a moral agenda that simply forbids taking “sexy” pictures, which would do more to shame the victim than to punish the perpetrator.29
Celebrity cases of revenge porn are high-profile30 and serve as the most publicly recognizable form of revenge porn scandals. However, revenge porn is ubiquitous in scope and affects average Americans en masse.31 Fifty-seven percent of men and forty-five percent of women have received an explicit photograph from a partner.32 These are the very images that later become wielded as weapons of destruction in the perpetration of revenge porn.
This is not just a celebrity issue, but an epidemic that plagues many individuals.33 A 2016 study revealed that one in twenty-five Americans has been a victim of threats or posts of nearly nude or nude images without their permission.34 In spite of this, 94% of Americans believe that their data and nude and/or sexual photos are safe in the hands of their romantic partners.35 In actuality, one in ten ex-paramours have threatened exposure of sexually explicit photos online (with these threats being actualized approximately 60% of the time).36 The study also found that 25% of the population has, post break-up, regretted sending intimate content, causing 32% of people to ask former partners to delete all personal content hitherto received.37 Interestingly enough, despite the known risks, 36% of Americans surveyed still planned to send sexy or romantic photos electronically to their partners on Valentine’s Day.38
This demonstrates that despite an awareness of the potential for non-consensual dissemination, many Americans continue to transmit sexually explicit photos to their partners. Why? Likely because technology has emerged as a platform for experiencing sexuality, with sexting39 as a modern manifestation of flirtation and love.40 Although newfangled in medium, the transmission of sexy pictures is far from a newfound dating ritual: the exchange of intimate photographs has long served as an expression of sexuality in the fabric of American culture.41 Consider the iconography of the pin-up girl and its deployment in boosting military morale during World War II.42 It was then commonplace for women to give soldiers intimate images as motivation to carry on; they were reminders of who they were fighting for.43 In this sense, the place of pictures in intimacy is time-honored and long-established.44 Therefore, there is precedent for respecting the barebones of what is ultimately transformed into revenge porn; to do otherwise would be to transgress enduring traditions of intimacy, and consequently, to infringe upon a fundamental piece of the human experience—sexuality.45 This phenomenon only bolsters the notion that it is both inappropriate and ineffective to place the onus on those who choose to send sexy photos.46
Revenge porn disproportionately afflicts women, who constitute 90% of revenge porn victims.47 Conversely, men are most commonly the perpetrators and consumers of revenge porn.48 Victims are most commonly between the ages of eighteen and thirty,49 and perpetrators are most commonly between the ages of eighteen and twenty-five.50 Moreover, revenge porn is undeniably a gendered issue, and its prevalence is insolubly tied to age in a fashion commensurate with the use of technology more generally.51 The intersection of age, gender, and the internet positions revenge porn as a prevalent52 legal and social issue, and such primacy only exacerbates the harms incurred by its victims.
B. The Effects of Revenge Pornography
The effects of revenge porn on its victims are pervasive and enduring. They can be socially slanderous, psychologically profound, physically endangering, and professionally and academically fatal.53 In short, revenge porn can wield extensive damage to which every sphere of life is vulnerable, and none are exempt.
Revenge porn can not only destroy victims’ intimate relationships, it can also become engrained in them.54 Revenge porn can constitute domestic violence when it is used to prevent a partner from ending a relationship, reporting abuse, or obtaining custody of children.55 It can be wielded by rapists who record their sexual assaults in order to humiliate victims and deter them from reporting the crime to the authorities.56 Revenge porn is also used by sex-traffickers and pimps to coerce individuals into entering and remaining in the sex trade.57
Revenge porn can also have deleterious effects on employment and education opportunities, and can even result in the termination of employment and expulsion from school.58 Additionally, revenge porn victims are routinely threatened with sexual assault, bullied online, and solicited for sex by strangers because of their perceived promiscuity.59 Many are stalked, as their contact information60 is often published alongside the images.61 This can compel some victims to change their names, and some are even forced to move.62
These detrimental effects contribute to the profound psychological harm that revenge porn victims often suffer.63 They manifest in anger, guilt, paranoia, depression, feelings of isolation, and even suicide.64 Victims also experience low self-esteem and feelings of worthlessness.65
A case study illustrating the tragic psychological effects that revenge porn has on its victims is that of Rehtaeh Parsons.66 Rehtaeh, fifteen years-old, went to a party where she was raped while vomiting out of a window after consuming too much alcohol.67 The rape was photographed, and an image of Rehtaeh being sodomized went viral around her school.68 Slurs of “slut” and propositions for sex followed, notwithstanding the fact that this was rape—not consensual sex.69 Approximately one and a half years later, Rehtaeh attempted suicide.70 Her failed attempt left her in a coma, and she was taken off of life support shortly thereafter.71 Rehtaeh’s story serves as a tragic illustration of the grave, sometimes fatal effects of revenge porn, and its overtly non-consensual nature.72 Unfortunately, Rehtaeh is not alone; many women have faced similar realities, the circumstances often different, but the consequences eerily the same.73
For women in particular, the harassment endured can take a formidable and enduring toll on sexuality.74 If sexual autonomy is to be treated as an insoluble part of liberty, a woman’s liberty is necessarily infringed upon when she is compelled to repress her sexuality for fear of retribution.75 Moreover, revenge porn and the shame and harassment it provokes can suppress a victim’s sexuality, which in turn can suppress her sense of liberty.76 This liberty has been deemed a precondition to gender equality; where it is lacking, there simply cannot be equality for women.77
The inconceivable and potent detriment to revenge porn victims takes shape physically, psychologically, socially, occupationally, and sexually. Coupled with the prevalence of revenge porn within society, the profundity of these harms necessitates an effective and fruitful legal framework through which victims can seek justice and reclaim the facets of their lives that were unilaterally stripped from their control.78 Although legal action will not rectify all of the damage incurred by victims, an effective legal regime can help to achieve closure for victims and provide the psychological, sociopolitical, and economic tools with which victims can begin to put the pieces back together.79
C. Recourse Prior to Criminalization: The Civil and Copyright Schemes
Prior to the criminalization of revenge porn, victims had to seek legal recourse through civil and copyright means.80 More specifically, victims could bring tort claims under the theories of invasion of privacy or intentional infliction of emotional distress, or could bring infringement of copyright claims under copyright law.81 These approaches are inadequate for several reasons,82 many of which are common to both civil and copyright claims, and many of which are unique to one or the other.83
Civil and copyright laws inadequately deter the perpetration of revenge porn.84 This is evinced by the fact that we continue to see frequent incidents of revenge porn and an abundance of revenge porn websites.85 If the function of the law and the punishments it prescribes is to be understood as a deterrent against wrongful actions, then civil and copyright law can be understood only as ineffective in preventing revenge porn perpetration.86 With the increasing online presence of revenge porn,87 the threat of litigation and monetary damages is insufficient to dissuade perpetration of revenge pornography.88 Criminal penalties have a more persuasive effect.89 Given their staying power, criminal convictions are much more likely to be contemplated prior to perpetration, engendering a stronger proclivity for avoidance.90
Additionally, civil and copyright suits are costly.91 Many victims do not possess the means necessary to pursue litigation.92 This is largely due to the fact that many victims lose their jobs as a result of the pornography and cannot afford everyday living expenses, much less attorney’s fees.93 For those who can afford to bring suit, they may be limited in doing so to the degree that the perpetrator is insolvent, or is possessed of relatively scarce assets.94 In this way, victims with limited access to the justice system face monetary hurdles in seeking justice under civil law, and those who have the necessary means to bring a legal action are limited by the corollary means of their assailants, who may be financially “judgment proof.”95 This gives rise to an imperfect system that obfuscates victims’ ability to attain legal judgments regardless of the means with which they are equipped, and whereby a perpetrator’s insolvency can further victimize the victim by re-inscribing her powerlessness and lack of control over her situation.96
Civil and copyright suits are also time-consuming,97 and throughout the litigation process, sexually-explicit images of the victim can continue to be disseminated while the case is in adjudicatory limbo.98 This allows for further reputational, professional, physical, and emotional damage to be incurred by the victim.99 This also enables the increased frequency and scope of unlawful distributions, affording rather comprehensive impunity to those responsible downstream.100
In addition, a civil suit—even one that garners a successful outcome—cannot stop the spread of an image already disseminated.101 Civil tort law does not effectively provide removal as a facet of recourse, as an injunction commanding that the poster remove the image does nothing to stop the hordes of individuals that have downloaded and reposted the image.102 This, at its core, suggests the inappropriateness of civil remedies for revenge porn victims, as most victims view removal of the material as paramount—not the recovery of damages.103 Therefore, civil antidotes do little to ameliorate the plight of revenge porn victims as they do not accomplish their foremost priority—the removal of the slanderous material.104
Relatedly, civil and copyright means are inadequate in that they require the dissemination of the images that the plaintiff seeks to eradicate.105 The very process by which relief is being pursued re-inflicts the harm for which rectification is sought.106 There is thus a counter-productivity inherent in civil suits brought on behalf of revenge porn victims that mandates a shift to criminal processes and/or a shift to confidentiality and pseudonymous litigation.107
In addition to the limited recourse that can be successfully sought against the individual distributors, there is an even less likelihood of success in attaining a judgment against the websites that hold and enable viewership of the images.108 Such websites can claim immunity under § 230 of the Communications Decency Act (CDA),109 which grants websites protection from tort liability stemming from content belonging to a third party.110 This means that the unlawful distribution of sexually explicit media to a revenge porn website cannot ground liability for the website displaying it because the content was not provided or solicited by the website.111 Revenge porn websites are granted broad immunity, ostensibly insulating them from criminal and civil claims.112 As websites house the pornography and enable mass viewership and downstream distribution, they are uniquely positioned as having the most remedial clout, and are thus logical targets for victims attempting to strip the content from the internet.113 Additionally, websites are far less judgment proof than individual purveyors, rendering them ideal targets for victims seeking monetary damages.114 Their protection under the CDA is therefore problematic, as it precludes victims from successfully bringing lawsuits,115 leaving them with little available recourse.
The CDA, however, does not immunize websites where copyright is at issue, as it does not cover federal intellectual property claims.116 Therefore, a victim may fare better in seeking relief under a copyright claim should she wish to bring suit against a revenge porn website.117 The conundrum there, however, raises another ground for inadequacy: a victim is barred from bringing a copyright claim if she did not take the picture or video in question, as she would not possess copyright ownership.118 This facet augments the onerousness of the copyright channel of recourse.119 While the vast majority of victims possess copyright ownership through the images’ status as “selfies,”120 several victims do not capture or take the images, themselves.121 Those victims are deprived of a means of remedy under copyright law.122 As such, this scheme lacks the comprehensiveness to effectively serve all victims of revenge porn and is therefore insufficient as a general remedy.
Those victims who do possess copyright ownership are precluded from suing for infringement until they register the image(s) with the U.S. Copyright Office.123 This is problematic in that even though the registration process124 is not particularly difficult, it can be time-consuming and triggering for victims, as it requires further submission of the explicit image, in this case, to the government.125
Once a victim legally possesses copyright ownership, she may submit a notice under § 512 of the Copyright Act, upon receipt of which the online intermediary would be required to take down the allegedly infringing content.126 It has been observed, however, that revenge porn websites often ignore requests for removal, because they know that many victims are without the monetary means to sue and they can thus proceed relatively unscathed.127 There is, therefore, little incentive for online intermediaries to responsively engage with § 512 filings, and as such, copyright methods are once again rendered ineffective as a means of legal relief for victims.
Even if a victim does prevail on a copyright infringement case, the pornography does not really disappear from the internet.128 Although the defendant host website may be forced to take it down, the victim may find herself playing a game of virtual whack-a-mole, in which for every one website that removes the content, it pops up on several more.129 Indeed, one victim reported that despite a successful copyright suit, she still finds many websites displaying the same sexually-explicit content of her.130 The internet, then, is an entity where removed material is never truly removed, and where replications of content are made instantaneously and relatively permanently.131 Copyright remedies, therefore, are not really remedies at all.
There are many qualities inherent in civil and copyright fora that render them inadequate means through which victims of revenge porn can achieve justice.132 This is not to say that civil or copyright claims are wholly unfruitful as a curative means for victims;133 rather, it is to suggest that the costs inherent in civil and copyright suits tend to outweigh the benefits emanating therefrom.134 This reality, and the gaping holes it leaves in the reparative scheme for revenge porn victims, necessitates a shift to another, more effective venue for justice: criminal law.135
II. THE SHORTCOMINGS OF CRIMINAL REVENGE PORN STATUTES WITH SPECIFIC INTENT PROVISIONS MANDATING THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The wanton nature of its perpetration has caused state legislatures to begin criminalizing revenge porn, crystallizing it as taboo.136 It is not merely the insufficiency of other legal and adjudicatory means that merits its criminalization, but also the overtly non-consensual, sexual nature of revenge porn’s core.137 While the criminal scheme has recently—and laudably—proliferated, it has splintered into two distinct statutory schemes, one of which—the specific intent model—is innately flawed and hinders the effectuation of a fruitful criminal framework.
A. An Overview of the [Bifurcated] Criminal Scheme
For proponents of revenge porn’s criminalization, what was once merely aspirational became reality when New Jersey became the first state to criminalize revenge porn in 2004.138 The New Jersey law—the first of its kind—made it a crime of the third-degree to disclose a nude or sexually-explicit photo without the consent of the subject.139 Since 2004, and at the time of this writing, forty-three states140 and Washington, D.C. have enacted revenge porn laws.141 These laws typically make it a misdemeanor for one to willfully disclose media depicting nudity or acts of a sexual nature if the disclosure occurred without the consent of the pictured party.142 Although statutes vary in content across state lines, they overwhelmingly threaten jail time or the incurrence of fines should a determination of guilt be made in a court of law.143 Although those punishments remain constants from state to state, a prevalent distinguishing factor amongst state laws is that of motive, particularly in those statutes that make revenge porn a specific intent crime. More specifically, several statutes, like those in California,144 Colorado,145 and Arkansas146 mandate that sexually explicit media be disseminated without consent in order to inflict psychological and emotional harm. Indeed, as of August 2016, twenty-three states had “intent to harm” requirements in their revenge porn statutes.147 The inclusion of such specific intent provisions is troubling. To see why this is, it is helpful to examine the Florida statute.148
Florida’s non-consensual pornography statute defines “sexual cyberharassment” as the non-consensual publication of a sexually explicit image with the intent of causing “substantial emotional distress to the depicted person.”149 In the state of Florida, then, a perpetrator will be convicted only if it can be proven that he disseminated sexually explicit media principally with the intent to inflict “substantial emotional distress.”150 Even more, perpetrators will likely evade liability if they posted explicit content with the expectation that the subject would never find out,151 which is frequently the case.152 By definition, then, if a perpetrator disseminated non-consensual pornography with the intent of pecuniary gain, or really for any reason other than vengeance, he will not be held criminally liable in the state of Florida.153 This exclusivity has the practical effect of insulating many perpetrators from criminal convictions, and thus leaves many victims without recourse under the criminal law.154
Alternatively, some states like New Jersey155 and Illinois156 omit such intent clauses, instead relying on language of mens rea like “knowingly” or “intentionally” disseminating illicit content, or some variation thereof, which effectively includes the requisite degree of agency and recklessness, yet fittingly does not mandate the infliction of emotional distress of any kind. This distinction in statutory thought is located at the junction of motive and mens rea; the former specific intent approach blurs the two, treating them as one, and the latter approach separates them, subscribing to the value of mens rea while not being particularly concerned with motive.157
B. The Incompatibility and Superfluity of Specific Intent Provisions Within the Criminal Revenge Pornography Scheme
While the infliction of emotional distress is often the practical effect of revenge porn,158 its inclusion within revenge porn laws has a narrowing effect. It neglects and precludes criminal culpability for other prevalent motives behind engagement in revenge porn, including those of pecuniary motives, sexual gratification, entertainment, and the attainment of notoriety.159 In so doing, these specific intent laws erroneously characterize revenge porn as a crime of vindictiveness rather than as a crime of the gravest invasion of privacy.160
In recognition of this, another strand of legislative thought does not include vindictive motive within its statutory bounds. The revenge porn law in Illinois, for example, makes no mention of intent.161 Rather, it focuses on the known, or reasonably discoverable, absence of the subject’s consent in dissemination as the dispositive factor for liability.162 This practice better achieves justice for revenge porn victims and serves to more strongly deter the future dissemination of revenge porn by acknowledging that other factors, in addition to the infliction of emotional distress, motivate the unlawful distribution of revenge porn.163
Further, malicious motive clauses are not mandated by the Constitution and are thus unnecessary from a jurisprudential and constitutional standpoint. The First Amendment is often cited as counter-authority to revenge porn laws, as some find the criminalization of revenge porn to run counter to the free speech and press guarantees enshrined therein.164 However, the First Amendment does not mandate malicious motive clauses, and thus their inclusion does not serve any particular constitutional purpose.165 The U.S. Supreme Court has even suggested that the attachment of motive requirements may make otherwise constitutional statutes, unconstitutional.166 In light of this, the inclusion of an “infliction of emotional distress” clause is rendered obsolete from a constitutional standpoint, and its narrowing effects are rendered vulnerable to attack.167
Additionally, the inclusion of a motive such as the “infliction of emotional distress” blurs the line between motive and mens rea.168Alex Jacobs, supra note 157, at87–88. It is argued that the operative mental state is cognizance of the lack of consent of the victim—not any particular sense of mal-intent.169 This as an important distinction. It will preclude a finding of liability for those who act innocently and prudently, and enable convictions for those who do not, such as in the case of non-consensual pornography.170 Moreover, the law should, in this arena, be less concerned with motive and more concerned with mens rea so as to impute liability to those who knowingly and recklessly act in contradiction to the law, and so as to not render criminal those who do not.171
The push for the exclusion of intentional infliction of emotional distress clauses from revenge porn legislation, and the movement against those statutes that make revenge porn a specific intent crime more generally, is substantiated by empirical data regarding the actual motivations behind the dissemination of non-consensual pornography.172 Indeed, one study revealed that the leading reason—capturing 79% of perpetrator participants—for distributing non-consensual porn was the desire to share a sexy photo they received with friends, not to hurt the pictured subject.173 It would appear, then, that perpetrators frequently share sexy photos not out of malice, but in a reckless display of their perceived sexual prowess.174 The push for intent-less statutes, therefore, is grounded in a factual basis that better accords with both reality and the needs of the victim than does a more restrictive, motive-driven statutory regime.175 Should specific intent statutes prevail, hordes of perpetrators will walk away unscathed, leaving victims without relief.176 Granted, this Note does not advocate for giving the State more power to put people in jail; rather, it suggests that individuals who unlawfully disseminate revenge porn merit criminal punishment because of the severity of the harm that they inflict. The law should provide penalties where penalties are due.
Finally, legislation mandating the intentional infliction of emotional distress places substantial barriers in a victim’s path to justice and grossly mischaracterizes the essence of revenge porn.177 To emphasize malicious intent is to shift the focus away from the victim and her consent—or the lack thereof—and towards the perpetrator and his vengeful mental state, which is notoriously difficult to prove.178 A specific intent provision imposes an onerous evidentiary burden that can potentially hinder a finding of liability on mere grounds of inadequate proof.179 Additionally, legislation making revenge porn a specific intent crime fundamentally misrepresents revenge porn, which is at its core an egregious invasion of privacy—not a form of revenge, despite its colloquial name.180
This characterization of revenge porn—i.e., as fundamentally an issue of privacy—comes up against criticism that cites to instances where privacy has been “waived.”181 These include cases of once consensually shared porn (e.g., where the subject is a former commercial porn star) and deliberate nudity by professional strippers.182 This sort of proposition—that, for example, former porn stars cannot object to the dissemination of old, consensual pornography—posits that consent to formerly shared media can never be rescinded, and that subjects are without the right to later demand removal of future disseminations of that same content.183 This notion is both judgmental and gendered184 and fundamentally mischaracterizes revenge porn as a tool to be used to shame and suppress sexuality.185 Privacy is not a permanently waivable, binary entity, and consent granted on one occasion is not eternal.186 Although the internet may forever remember, that does not automatically invalidate an individual’s choice to forget. Moreover, revenge porn is a matter of privacy, and the inclusion of a specific intent provision disallows several such invasions of privacy from being criminalized through the imposition of an evidentiary burden unrelated to the crime’s most central facet.
III. PROPOSAL: THE ILLINOIS REVENGE PORN STATUTE SHOULD BE TREATED AS MODEL LEGISLATION TO BETTER ACHIEVE JUSTICE FOR REVENGE PORN VICTIMS
The ideal revenge porn legislation is that which lacks a specific intent element. Accordingly, the Illinois statute criminalizing revenge porn should be used as a model for all state revenge porn laws,187 including those states without revenge porn laws, and those with their own revenge porn laws already in effect. The Illinois statute’s lack of a specific intent clause188 allows for a less restrictive, more just basis for the prosecution of perpetrators of revenge porn. As other motives beyond the infliction of emotional distress often drive an individual to disseminate nude and/or sexual imagery of another without their consent,189 and because the effects on the victim are ostensibly the same despite the motivation behind the crime,190 justice calls for the elimination of vindictive motive clauses within revenge porn legislation so that all cases of revenge porn may be properly adjudicated and resolved.
Apart from its omission of a malicious motive clause and its abstention from treating revenge porn perpetration as a specific intent crime, the Illinois law is exceptional for several other reasons.191 For example, the Illinois law includes selfies, extending the application of the law to those images taken by the victim, herself.192 This is significant given that the majority of the content distributed in revenge porn is in selfie form.193 The inclusion of selfies within the scope of qualifying media is significant in that requiring the distributor and the photographer to be one in the same would exclude several incidents of non-consensual pornography from susceptibility to prosecution.194 This provision is also a precondition to exemplary legislation in that it does not shame and reprimand the victim for taking a sexy, explicit picture of herself by insulating such picture from justiciability.195
In addition, the Illinois law imposes robust punishments for perpetrators, creating a substantial deterrent against revenge porn perpetration.196 Illinois makes revenge porn a Class 4 felony, punishable by one to three years in prison, fines of up to $25,000, restitution to victims, and the forfeiture of any profits gained from the distribution of the material.197 These penalties are less forgiving than those inscribed in many statutes.198 Their severity is more conducive to deterring revenge porn and adequately punishes those who, undeterred, proceeded to disseminate non-consensual pornography.199
Illinois also allows images that do not feature nudity to come under the purview of the statute.200 While some laws require a victim’s “sexual” or “intimate” parts to be exposed, or nudity more generally,201 the Illinois law “recognizes [that] victims can be deeply harmed by non-consensually distributed sexual images regardless of nudity.”202 Take, for example, the depiction of one performing oral sex or having been ejaculated upon.203 Both of those instances can show body parts other than “sexual parts,” or can be performed while clothed or partially clothed, but are irrefutably sexually explicit.204 In those cases, disseminated proof of both acts would have extensive physical, psychological, and social effects on the victim commensurate to those resulting from the circulation of nude imagery. As such, the Illinois law is consummate in its inclusion of depicted conditions other than mere nudity.
Additionally, the Illinois statute provides liability for third-party “downstream” distributors.205 Through its inclusion of a “reasonable person” standard, the Illinois law allows for the imputation of liability to one who would reasonably understand that the image was intended to remain private, and that consent had not been given to its circulation, but elects to circulate it anyway.206 Under this clause, one who continues to disseminate imagery can be held liable, even if they were not the initial and principal distributor, if it was relatively discernable that the content was understood to be for private use.207 This provision is significant in that it augments the deterrent quality of such legislation by discouraging reproductions of what can reasonably be inferred as representing non-consensual pornography.208
Lastly, the Illinois law contains beneficial provisions against doxing,209 or the posting of personal contact information.210 This means that the Illinois law does not apply only when a victim is facially identifiable, but also in cases where identifying information211 is displayed adjacent to an image wherein the subject is not physically identifiable. This allows for greater breadth in ameliorating the harms suffered by revenge porn victims, as it recognizes that revenge porn is harmful despite the degree to which the subject is facially identifiable within the images.212 As doxing is generally what enables downstream distributors and third parties to stalk the subject—both online and in person—and provided that stalking is a common and endangering side effect of the dissemination of revenge porn,213 the statute’s prohibition against doxing is powerful both as a deterrent and as a basis for penalty.
There is one element missing from the Illinois statute that would bolster its preeminence: the ability of victims to use pseudonyms in a court of law.214 In this sphere, California is distinct.215 The California legislature recently signed a bill permitting victims of revenge porn, in civil actions, to use pseudonyms in order to abate further breaches of privacy and to preclude increased harm.216 This provision mandates that a victim’s pseudonym be used in all pleadings, documents, proceedings, and other case records, and further posits that any personal contact information or images of the plaintiff must be either redacted or excluded from court files.217 These confidentiality measures are laudable in that they curb the enduring criticism of legal channels in the handling of revenge porn perpetration: that victims seeking legal relief must endure further dissemination of the very images that have harmed them.218 Additionally, these privacy protections may induce more victims to come forward and seek legal relief by virtue of the promise of confidentiality.219 While the images may still need to be produced in court, the ability to use pseudonyms and the requirement that images and contact information be excluded from court files are significant in limiting the degree to which further harm can be inflicted on victims who take legal action.220
The advancement of confidentiality measures such as those in California’s Civil Code properly frame non-consensual pornography as a matter of privacy rather than as a matter of malice, and thus it logically follows that they should be included in any scheme seeking to ameliorate grave breaches of privacy.221 The expansion of such confidentiality provisions to the criminal revenge porn channel would have a profoundly positive impact on the victims who look to legal mechanisms for relief, and as such, should be implemented to better achieve justice for revenge porn victims.222
In this regard, the Illinois statute is, admittedly, deficient. Should the Illinois legislature amend its statute to allow for the use of pseudonyms in legal actions, the Illinois statute would be even more archetypal. Given the fact that the provision of pseudonyms in revenge porn legislation is a recent development, and further, that it currently exists in the civil, not criminal context, it is possible that Illinois will soon follow suit—a likelihood evinced by the statute’s progressiveness in its current form.223
Due to its lack of a specific intent provision, and for the foregoing reasons, the Illinois law should be treated as model revenge porn legislation. The emphasis that it places on consent rather than depravity appropriately frames the crime as one of privacy, and not one of mere wickedness or retribution.224 The Illinois statute is exemplary even without the provision of pseudonyms for victims, but this Note urges the Illinois legislature to consider amending it to include a pseudonym provision like that of California’s civil law.225 The lack of a pseudonym provision notwithstanding, the Illinois statute should be used as a template for all other states, and perhaps even in the eventual implementation of a federal law criminalizing the unlawful dissemination of revenge porn,226 to best achieve justice for revenge porn victims.
A. Potential Objections
A criminal revenge porn statute akin to Illinois’ may be viewed as infringing upon First Amendment guarantees.227 More specifically, it may be argued that criminal prohibitions on the dissemination of protected media violate the freedom of expression necessary to a democratic system.228 In response, there are two avenues of rebuttal, one pertaining to the statute itself, and the other to the fundamental essence of the crime. First, the Illinois statute is carefully drafted so as to honor the First Amendment.229 It achieves this objective by exempting the dissemination of sexually explicit content in order to report illegal conduct230 or to serve other “lawful public purpose[s].”231 The inclusion of such exceptions232 precludes journalists from incurring liability for posting images depicting nudity or sex acts in connection with their work233 and enables pornography enthusiasts to continue to peruse and share commercial, federally sanctioned pornography websites with one another, free from criminal liability.234 By excepting dissemination under such enumerated circumstances, the statute avoids running afoul of protections relating to speech, the pursuit of justice, and the press.235 Consequentially, the Illinois statute passes constitutional muster.236
Second, the Illinois statute does not infringe upon a constitutional right to share sexual photos without the consent of the subject because no such right is afforded under the Constitution.237 Any proposition to the contrary willfully ignores the non-consensual nature of revenge porn distribution, under which it is without import that an image was freely given and received.238 It is the very unilateral essence of revenge porn perpetration that ought to insulate any piece of revenge porn legislation from First Amendment challenges.239
It may also be submitted that the right to privacy finds friction in a capacious online world.240 Opponents of Illinois’ statutory scheme may claim that, in the context of the internet, privacy “waived” once is eternally so, and that as an archive, the internet remembers without regard to one’s desire to forget.241 Specifically, critics may point to instances of the unknowingly illicit dissemination of once consensually shared pornography.242 In this instance, it may be argued that the line of criminal culpability proffered by the Illinois statute becomes difficult to navigate. Opponents will caution against the potential for unknowing purveyors to be swept up by the statute’s downstream distribution provision.243
This concern is rebutted by the statute’s inclusion of the “reasonable person” standard, under which criminal liability is imputed only in such instances where a reasonable person would or should have known that the image’s initial dissemination was not consented to.244 In practice, then, innocent people will not be picked up by Illinois’ criminal scheme if they exercise reasonable prudence in the circulation of sexually explicit media.
CONCLUSION
Revenge porn wields profoundly devastating impact on its victims. Given the pervasive and abiding nature of these effects, victims deserve a legal scheme whereby they can effectively, and with relative ease, seek legal and equitable rectification for their suffered wrongs. The Illinois statute effectively creates a structural framework whereby all victims, despite the minute particularities of their cases, can be venerated in a court of law, and can begin to heal and pick up the pieces. Should every state possess a revenge porn statute akin to Illinois’, fewer women would suffer the sorts of devastation incurred by Blac Chyna and Annmarie Chiarini on one end of the spectrum, and by Rehtaeh Parsons and Audrie Pott on the other. Should analogues to the Illinois statute be enacted, more women would be able to take down their virtual and physical assailants more painlessly, effectively, and successfully, and those assailants would not abscond with impunity. Through this form of model legislation, revenge porn victims are empowered to seek revenge on their attackers through the law, and ex-paramours and perpetrators of other kinds are in turn disempowered from pressing “send.”