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Is California's bill for a 'revenge porn' ban good public policy?

Most of us are disgusted when people post explicit photos of ex-lovers online in order to express their scorn and humiliate them. This practice, called “revenge porn,” is not only hurtful, but it can also have destructive consequences for its victims, mostly young women. Strangers make catcalls after recognizing the victims. Family relationships are strained. Professional reputations are destroyed and jobs are lost.

Senate Bill 255, which awaits Governor Brown’s signature, would extend California’s disorderly conduct by invasion of privacy statute to posting revenge porn, defined as images of the intimate body parts of an identifiable person, even those visible through clothing, which were taken when the parties agreed they would remain private. It would now be illegal to post or distribute such images with the intention of causing serious emotional distress, if it in fact does so.

Like other criminal invasions of privacy, revenge porn would be a misdemeanor, with a first offense carrying a penalty of up to six months in jail and/or a $1,000 fine. A second or subsequent offense, or if the victim was a minor when the images were taken, would carry double the penalty. In the case of underage victims, the defendant could also face child pornography charges.

Currently, only New Jersey has a criminal anti-revenge porn law, passed after a Rutgers University student committed suicide upon discovering a video of his sexual encounter was posted online. New Jersey’s law makes sharing explicit images of others without their consent a felony.

Yet while revenge porn may be despicable, criminal justice scholars disagree about whether criminalizing it is workable even good public policy. Victims can already file civil suits against their tormentors, and increasing the potential lawsuit damages might be an effective deterrent. A criminal statute, on the other hand, could be invalidated if found to violate the First Amendment.

One law professor, who has drafted a model statute for states to adopt, however, argues that revenge porn should be criminalized because of its discriminatory impact on all women -- not just direct victims. It carries on the bias that punishes women for “where they walk, how they dress, how much they drink,” she says, and makes women fear engaging “in any form of consensual sexual activity that any person could possibly ever use against them.”

Do you think posting revenge porn should be a crime?

Source: ABA Journal, “How to battle revenge porn? Calif. lawmakers pass law; prof sees no-nude-photo solution,” Debra Cassens Weiss, Sept. 25, 2013

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