NonConsensual Pornography: Prevention is Key

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Matthew Edward Carey*

Introduction

Adults today are sharing intimate content with each other at a rate never before seen: nearly half have used their mobile device to share or receive “intimate content,” 16 percent have sent intimate content to a complete stranger, and 14 percent have filmed “sexual content” on their mobile devices.1 In the United States, one in three adults has filmed sexual content on a mobile device,2 and teenagers film and share sexual content at an even higher rate.3 But what happens to this content after it has been willingly shared? These consensually shared images are frequently used by their recipients in the manner intended by the sender, but oftentimes the images are further shared by the recipients without the sender’s permission in what has come to be known as “revenge pornography”4 or nonconsensual pornography (NCP).5 While NCP has rapidly grown from an emergent genre into a major national concern,6 the legal framework in the United States has yet to see an approach that adequately protects NCP victims.7

NCP is best described as the distribution of sexually graphic images8 of an individual without his or her consent.9 In 1980, Hustler magazine published intimate photos of a woman that were taken by her husband during a camping trip in what was one of the first instances of widely distributed NCP.10 By the year 2000, the online sharing of intimate images had been identified as an emerging genre.11 Modern communications, including ubiquitous access to cell phones and social media accounts, have contributed to the now-meteoric rise of NCP by making it much easier to commit these offenses.12 Although national figures are not available for the United States due to the lack of a national NCP law, there were over 1,200 cases of revenge porn in the United Kingdom between April 2015 and January 2016.13 This number only includes the reported cases of revenge porn14 in a country that has barely one-fifth the population of the United States.15

The troubling reality of the current legal framework in the United States is that once a person shares an image, it is likely out of his or her control, and that person is reliant on someone else to protect the image.16 In today’s digital era, sharing an image might not equate to sharing just one copy: there is no limit to the number of times a digital image can be shared or how quickly it can spread.17 If the image makes it to the internet, the internet never forgets.18 To make matters worse, if an NCP victim attempts to remove an image from the internet, he or she runs the risk of causing the image to receive much more attention than it was previously receiving.19

Much like it is difficult to measure how many people an intimate image reaches once it is posted online, it is difficult to measure the harm suffered by NCP victims. However, a recent online discussion on the website Reddit gave many NCP victims the opportunity to share how their lives have been affected.20 The feelings reported by victims included humiliation, concern for personal safety, a need for hypervigilance, fear of being watched during sex, and body shame.21 The harm doesn’t stop there: one NCP victim shared that she quit her job and moved away because she was being harassed at work and couldn’t bear to see or hang out with any of her friends.22 And she is not alone.23 At its worst, NCP can drive some victims to take their own lives.24

Despite the fact that some NCP victims have been awarded damages as high as $500,000,25 the law is currently ill-equipped to handle NCP.26 This is best illustrated by People v. Barber,27 which was one of the first NCP cases brought in New York.28 In Barber, an NCP victim alleged that her boyfriend had posted naked pictures of her online, without her consent, via his Twitter account and that he had also sent the images to her employer and to her sister.29 Because NCP is not criminalized in New York,30 the state had to bring ancillary charges of (1) aggravated harassment, (2) dissemination of an unlawful surveillance image, and (3) public display of offensive sexual material.31 Before the first hearing, the judge granted the boyfriend’s motion to dismiss all charges because (1) harassment could not be shown because the intimate images were not sent directly to the NCP victim,32 (2) unlawful surveillance could not be shown because the intimate images were obtained with the NCP victim’s consent,33 and (3) public display of offensive sexual material could not be shown because nudity is not in and of itself offensive.34

The Barber case represents only one example of how the current state of the law does not provide sufficient protections to NCP victims. Even in the thirty-four states that have directly criminalized NCP,35 NCP victims are not sufficiently protected because those laws require a showing of the NCP sharer’s36 intent to harm.37 While the media38 and some commenters39 have suggested that NCP is perpetuated primarily due to the NCP sharer’s intent to harm the subject of the shared images, an assumption that frequently appears hand-in-hand with the use of the term “revenge porn,”40 this assumption falls short of the reality of the situation because many NCP sharers have not done so with a demonstrable intent to harm the subject of the images.41 Federal copyright law presents another potential avenue for relief, but has its own shortcomings: notably, it only applies when the NCP victim took the photo themselves.4243

Part I of this Comment discusses the current remedies available to NCP victims and shows how these remedies are insufficient and fail to sufficiently protect NCP victims. Part II examines some current proposed solutions to the shortcomings of NCP law and how those solutions also fail to sufficiently protect NCP victims. Part III argues that a criminal strict liability approach solves this problem by directly attacking NCP sharers in the first instance of sharing—that is, strict liability for the crime of NCP if the NCP sharer (1) was an initial possessor of an intimate photo of another person, whether by taking the photo themselves or having it shared with them by the subject of that photo, and (2) shared that photo without the subject’s consent. This solution directly attacks the root of the problem—the first instance of sharing—because once the photo is shared it can be impossible to remove it from the public eye.

I.  The Current State of the Law and Its Failures

NCP can encompass a range of acts that may violate state or federal criminal laws concerning harassment, stalking, blackmail, child pornography, extortion, surveillance, hacking, fraud, wire fraud, unlawful use of personal identifying information, identity theft, and more.44 However, this Comment focuses on laws that target NCP itself rather than ancillary laws that may or may not have been broken by an NCP sharer. This Part of the Comment discusses the laws that NCP victims can presently leverage in an attempt to find some form of relief.

A.  Current Criminal Law Approach to NCP

Thirty-four states have directly criminalized NCP,45 and there are some advantages to using state criminal laws46 to punish and prevent NCP when a state criminal remedy is available to an NCP victim. To begin with, the vast majority of criminal prosecutions occur in state courts, as opposed to federal courts.47 State prosecutions are advantageous to NCP victims because direct enforcement of individual cases by federal law enforcement agencies is unlikely due to the lack of manpower and general focus on larger cases with more than just one victim.48 Additionally, state agencies and law enforcement officers are not bound to follow federal law, but they are bound to follow state law, which leads to more uniform enforcement of a state statute.49 Finally, because states enforce their own criminal laws, the victim does not have to fund an often prohibitively expensive civil litigation campaign.50

Despite these apparent advantages to using state law to criminalize NCP, there are numerous shortcomings. To begin with, most of these states’ NCP laws mirror their harassment laws in that they require some form of intent to harm.51 Additionally, some states’ NCP laws require that an NCP sharer attempt to obtain a pecuniary benefit as a result of the sharing of the intimate image.52 These laws leave an NCP victim without recourse when the NCP sharer neither had an intent to harm nor attempted to profit from the sharing. Some states have even added a requirement that an NCP victim must have been in a “dating relationship” with the NCP sharer (which explicitly excludes a “casual relationship”).53 This leaves no legal remedy for the 16 percent of adults who have sent intimate content to a complete stranger.54

Some commenters have suggested that there is no need for a separate criminal statute that targets NCP because NCP frequently encompasses a range of acts that already violate state or federal criminal laws.55 Under this theory, these ancillary crimes present the avenue for relief.56 In fact, the operators of the largest NCP website in history were charged under ancillary federal crimes, including unauthorized access to a computer, identity theft, and extortion.57

However, this approach falls short of protecting many NCP victims because it requires the NCP sharer to have actually committed a crime when sharing the NCP victim’s intimate image. While this may have worked to convict the operator of the largest NCP website in history,58 this approach is not easily applied when prosecuting individual NCP sharers because oftentimes they have not committed a crime in the process of sharing the NCP victim’s intimate image.59 Because using state criminal laws to target NCP has not provided sufficient remedies for NCP victims, the victims must look elsewhere for relief.

B.  Current Copyright Law Approach to NCP

Federal copyright laws provide an alternative form of relief for NCP victims, but they too are a less-than-perfect solution. To begin with, because copyright is assigned to the photographer and not the subject of a photo,60 copyright protection for intimate images only applies when the subject of the photo took the photo themselves. Second, to be eligible to initiate a lawsuit for statutory damages under federal copyright law, an NCP victim must first register his or her intimate image with the United States Copyright Office,61 which places the image in a publicly searchable database.62 Third, showing an image to only family or a small group of your friends is generally a permitted activity under copyright law.63 And finally, enforcement actions typically require that a copy of the image has been illegally made and distributed or that the image has been publicly shared, such as when it is posted online.64

Even if an intimate image was shared online and the subject of the image owns the copyright to the image, the relief available under federal copyright law remains an imperfect and convoluted process. Under the Digital Millennium Copyright Act (DMCA), the first step towards obtaining a remedy is for the NCP victim to submit a DMCA takedown request to the hosting website of the intimate image.65 A DMCA takedown request is submitted directly by a copyright owner, does not involve the courts, and provides the image’s host the opportunity to remove the image from its website without being subject to monetary liability.66 However, utilizing the services of a lawyer to ensure that even a single DMCA takedown request is properly submitted will typically cost an NCP victim between $1,500 and $3,000.67

If the host of the intimate image chooses not to respond to the DMCA takedown request or sends a DMCA counter notification claiming the NCP victim is not the owner of the image’s copyright, the NCP victim must then either convince the thinly spread DOJ to take an interest in his or her individual case (unlikely)68 or file an action themselves in court to enforce their copyright.69 However, copyright enforcement cases typically involve a great deal of time and expense:70 attorney’s fees and costs in these cases can be well into the six-figure range.71 Additionally, “[a] lack of familiarity with these laws, combined with the fact that revenge porn lawsuits are not lucrative, leave many attorneys unwilling to spend time on these lawsuits. By one estimate, there are only four or five attorneys in the country who actively represent revenge porn victims.”72

As yet another hurdle to enforcement, section 230 of the Communications Decency Act (CDA) provides a safe harbor to website owners by granting immunity to them for content that is submitted to their sites by third parties.73

Because of these limitations, federal copyright law only provides a remedy to NCP victims when (1) they took the intimate image themselves, (2) the image was publicly shared, and (3) the infringer either responds to a takedown request or the NCP victim has enough money to pursue civil litigation. Additionally, damages are only available to NCP victims if they publicly register their intimate photo with the Copyright Office, which places the image in a publicly searchable forum. Due to these limitations, federal copyright laws do not provide a sufficient, accessible remedy for NCP victims.

C.  Current Tort Law Approach to NCP

It is possible—and, for the NCP victim seeking recourse in a state without a criminal NCP statute, perhaps necessary—to pursue legal action against an NCP sharer directly under tort law. Tort law can compensate an NCP victim under numerous circumstances, which include: mental anguish, mental or physical pain and suffering, lost wages, and medical expenses.74 However, compensatory damages still require a showing of mens rea on the part of the defendant.75 As discussed above, the NCP sharer frequently lacks intent to harm the subject of the photo,76 making it difficult for the NCP victim to prevail under tort law.

Intentional torts also do not provide an avenue for relief because consent to recording or photographing sexual acts in a private place typically precludes these types of suits.77 This consent also precludes the NCP victim from pursuing claims under invasion of privacy torts.78 Finally, the tort of defamation might not be an option for NCP victims because if the images are “substantially true”—even when the images contain sexually explicit material—they can be shared without the subject’s permission.79

II.  Current Proposed Solutions and Their Shortcomings

Numerous commenters have noted deficiencies in the current legal system for an NCP victim who desires to take legal action80 and have proposed solutions to address these deficiencies. This Part of the Comment discusses the proposals that best illustrate the deficiencies and shows how each remedy is insufficient and fails to sufficiently protect NCP victims.

A.  Proposed Changes to Criminal Laws

Numerous commenters have proposed criminal solutions at the state and federal level. State statutes have gained traction in recent years: thirty-four states and the District of Columbia have criminalized NCP81 since California passed the first such statute in 2013.82 However, such statutes as proposed—and as actually implemented in various states—almost unilaterally require some form of intent to harm to be proven on the part of the NCP sharer,83 a problem discussed in depth above.84

One commenter’s proposed solution to the problem of NCP is a new federal criminal statute.85 However, the proposed statute still requires a showing of intent to harm on the part of the NCP sharer.86 This means the same issues that plague the current state statutes that criminalize NCP will carry through to this proposed federal statute: namely, that NCP sharers frequently lack a specific intent to harm NCP victims.87 Additionally, direct enforcement of individual cases by federal law enforcement agencies is unlikely due to the lack of manpower and general focus on larger cases with more than just one victim.88 Finally, state agencies and law enforcement officers are not bound to follow federal law, so uniform enforcement of a federal statute is by no means guaranteed.89

B.  Proposed Changes to Copyright Law

Commenters have also discussed changes to federal copyright law as an avenue to afford more protections to NCP victims. Copyright law is an excellent place to start because it is applicable nationwide and can be used to quickly remove images from the public eye via DMCA takedown notices.90 This section discusses two such proposals: a proposal to remove copyright law’s registration requirement and a proposal to assign a partial copyright to the subjects of intimate photos.

1.  Removal of the Registration Requirement

One commenter’s proposed solution is to remove the registration requirement for copyrighted images that contain content of a pornographic nature.91 This solution would remove the catch-22 inherent in having to publicly register an intimate image in order to be eligible to bring a copyright infringement suit for the unauthorized use of that same image.92 While removing the registration requirement would remove one of the current hurdles for NCP victims who use copyright law for a legal remedy, it is an insufficient remedy on its own because it does not address copyright law’s other limitations in this context: that (1) copyright ownership only belongs to the photographer, (2) an intimate image must have been publically shared, and (3) pursuing private litigation under the Copyright Act is costly.93

2.  Assigning Copyright to Subjects of Intimate Photos

Another commenter has proposed a different amendment to the federal copyright statute to offer further legal protections to NCP victims.94 Such an amendment would include two primary changes. First, the amendment would grant a waivable-yet-unalienable partial copyright to the subject of intimate photos, where the subject of the photos would need to give permission before the photographer could exercise their own copyright rights.95 Second, it would expand copyright protections to the private viewing of intimate photos.96 While this would address photos not taken by the subject, it would not address the public registration problem or the problems of private civil enforcement.97

III.  Strict Liability Attacks the Root of the Problem

This Comment argues that NCP is best punished and discouraged through a criminal strict liability statute because strict liability for initial NCP sharers provides an ideal solution to the law’s current shortcomings. Under this framework, an NCP sharer would be held strictly liable under criminal law if he or she (1) was the initial possessor of an intimate photo of another person, whether by taking the photo themselves or having it shared with them by the subject of that photo, and (2) shared that photo without the subject’s consent. This part of the Comment briefly discusses the justifications for and concerns with the use of strict liability in the criminal context, then argues that the primary concerns can be overcome in the criminalization of NCP under a strict liability regime.

A.  Strict Liability

A strict liability crime is “[a]n offense for which the action alone is enough to warrant a conviction, with no need to prove a mental state.”98 The use of strict liability in the criminal context is most commonly associated with “public welfare offenses,” also known as malum prohibitum offenses—”minor violations of the liquor laws, the pure food laws, the anti-narcotics laws, motor vehicle and traffic regulations, sanitary, building and factory laws and the like.”99 However, there are two notable circumstances where strict liability has been applied broadly nationwide to malum in se offenses—”crime[s] or act[s] that [are] inherently immoral”:100 statutory rape101 and child pornography.102

Strict liability is used in malum in se offenses to protect those who we as a society have deemed cannot protect themselves, such as minors in statutory rape and child pornography scenarios.103 Its application to statutory rape has been upheld by courts in a majority of states because it is considered that a person below a certain age is legally unable to consent to sex,104 and its application in child pornography cases has been upheld by all federal circuit courts in part due to the same reasoning.105 Likewise, people who are in possession of intimate images of others are in a position to take advantage of the images’ subjects, and those subjects are unable to withhold consent and unable to protect themselves because they no longer have the ability to physically control the images. This makes strict liability the ideal vehicle for addressing these concerns because of the parallels between NCP, statutory rape, and child pornography.

B.  Criminalizing NCP Under a Strict Liability Regime

1.  Removal of the Intent Requirement

By their nature, strict liability statutes do not contain an intent element, making the commission of a criminalized act enough to bring forth a charge.106 Removing the requirement of a mental state would address the issues noted above regarding (1) proving a mental state and (2) the fact that many NCP sharers do not have an intent to harm even though their actions do cause harm.107 The harm caused by NCP is similar to the harm caused by the distribution of child pornography in that NCP “victims suffer due to continued circulation of their images or the ongoing potential for circulation of their images.”108 Because this possibility of harm is so great, whether it be the initial harm of having the image viewed by others or the recurrent victimization through the existence of the images, it is essential that we must remove the element of intent. Strict liability is the best way to do so. This would not only provide NCP victims with an effective remedy, but would also serve to disincentivize individuals from committing the crime in the first place.

2.  Requirement of Consent

One difference in NCP that stands in stark contrast with statutory rape is that the consensual sharing of pornography is not considered a malum in se offense in any jurisdiction, as opposed to consensual sex between an adult and a minor. In the majority of states, “it does not matter [in a statutory rape case] that the victim consented, or that he or she may have initiated the contact, or that he or she fully appreciated the nature and consequences of sexual intercourse.”109 Unlike a minor’s legal inability to consent to statutory rape, the subject of an intimate image is able to consent to the sharing of that image. However, due to the unique inability to withhold consent once an intimate image is shared, I propose that any law criminalizing NCP prohibit a reasonable and good-faith mistake as to the consent of the subject of the photo, much like how a majority of states do not permit a mistake-of-age defense in statutory rape laws. The law must also specify that the consent required to avoid punishment is express consent to sharing the intimate image with third parties, with the burden on the sharer to show that express consent was gained. It is not enough for an NCP victim to have consented to the taking of the image to defeat charges under a proposed statute. This will sufficiently recognize the difference between consent to view or possess an image and consent to the disclosure of that image to third parties, address the unique powerlessness of NCP victims to protect themselves once their intimate image has been shared, and normalize the stance that the sharing of an intimate image is done so under the legal expectation of privacy.

3.  Limiting to the Sharer in the First Instance

While criminalizing actions under a strict liability regime runs the risk of casting an overly broad net,110 one way a strict liability statute can be sufficiently tailored to the most harmful actors in an NCP scenario is to limit the strict liability element to the sharer in the first instance. Such a limitation is “needed to more fully differentiate among offenders based on their culpability and . . . dangerousness.”111 For example, because it is almost impossible to remove an image or file from the internet after it is first uploaded, deterring future uploads is more important than simply punishing uploaders after the fact. Similar to the current sentencing recommendations for child pornography, this limitation will more accurately “reflect current offense conduct, evolving modes of electronic communications and other technologies used by offenders, and knowledge gained from emerging social science research.”112

Extending strict liability beyond these sharers in the first instance to second-order sharers of NCP—that is, NCP sharers who neither generated the intimate image themselves nor had the intimate image shared with them by the subject of the image—would run the risk of being an overly broad implementation. First, one of the major rationales for applying strict liability to NCP sharers is to prevent the initial dissemination of an image onto the internet. By the time the second-order sharer has had the photo shared with them, the photo is already out there. Additionally, while one reason for applying strict liability to second-order sharers of child pornography is to prevent the “normaliz[ation] and valid[ation] [of] the sexual exploitation of children,”113 that logic simply does not apply to pornography involving adults—it has already been validated as normal, with just one of the many online pornography networks receiving approximately one hundred million visits per day.114 Applying strict liability to second-order NCP sharers runs the risk of punishing someone who might not be aware of the source of the photo and therefore could believe they were sharing a normal commercial pornographic image of an adult. Therefore, extending strict liability to second-order sharers of NCP would be an impermissibly broad implementation. Because of the above reasons, any proposed NCP statute should only apply to a sharer in the first instance—that is, a proposed strict liability criminal statute should only apply to a person who either (1) received the image directly from the subject of the image or (2) took the image themselves.

Conclusion

While adults today are sharing intimate images at a rate never seen before, the law has been unable to keep up and sufficiently protect NCP victims. The current and proposed laws that criminalize revenge porn all include an intent element, but NCP sharers frequently do not show the required intent. The current and proposed copyright laws require the NCP victim to have taken the photo themselves, require the NCP victim to publicly register their intimate image to seek relief, require the intimate image to have been viewed publicly, and copyright litigation is prohibitively expensive. Due to the above limitations, neither criminal law nor copyright law provides a sufficient, accessible remedy for NCP victims.

However, as this Comment demonstrates, a state law criminalizing revenge porn as a strict liability crime can provide a sufficient, accessible remedy for NCP victims much as similar laws have provided remedies to the victims of statutory rape and child pornography. A properly worded law can provide the deterrence needed to prevent the unstoppable harm to NCP victims once their intimate image makes it to the internet. This law must (1) remove any intent requirement, (2) require the express consent of the subject of the intimate image, and (3) limit enforcement to the sharer in the first instance.

 

* J.D. Candidate, 2018, University of Colorado Law School; Forum Editor, University of Colorado Law Review. This note was inspired by my friend’s personal fight with nonconsensual pornography, which introduced me to the inadequacies of the current legal framework and led me to realize there is much work to be done in this area.