"Revenge Porn:" A Crime or a Civil Action?

Les Demoiselles d'Avignon, 1907 by Pablo Picasso
(One of Picasso's girlfriend's - Revenge Porn?)

Last month, we sent legislation to the Governor about "revenge porn."  Much of the media has focused on legislatures making it a crime, but has not provided much analysis about this issue.

There's no question that ex-boyfriends or ex-girlfriends posting naked pictures of each other on the internet is stupid behavior.  However, whether the Commonwealth of Virginia should invest taxpayer resources in putting people in jail and then housing them for a period of time for that behavior it is a much more complicated issue.

First, here's what the "revenge porn" statute says:

§ 18.2-386.2. Unlawful dissemination or sale of images of another; penalty.    

    A. Any person who, with the intent to coerce, harass, or intimidate, maliciously disseminates or sells any videographic or still image created by any means whatsoever that depicts another person who is totally nude, or in a state of undress so as to expose the genitals, pubic area, buttocks, or female breast, where such person knows or has reason to know that he is not licensed or authorized to disseminate or sell such videographic or still image is guilty of a Class 1 misdemeanor....

It is important to remember that the courts review criminal statutes that deprive liberty and major life consequences totally different than civil statutes.  Criminal statutes must be very precise and carefully drawn.  In the civil world, almost anything is game because the only thing at issue is money.



The first big problem with this statute is that revenge porn situations frequently involve websites in other states.   There are several websites promoting this material who are the targets of this legislation.  Just Google "revenge porn" to get an idea.  This statute makes revenge porn a misdemeanor.  In the seventeen years I've been licensed to practice law, I have never seen a Commonwealth's Attorney jump through the legal hoops necessary to extradict an accused person for a misdemeanor.

Because state prosecutions are limited in jurisdiction and procedural tools, interstate crimes are normally the responsibility of the federal government, not state government.  A state-based misdemeanor charge for this kind of behavior is not practical - it won't work unless both parties and all of the conduct occurred within the Commonwealth.

Proving a case like this is challenging.  Rules of evidence do not allow the government to simply put on evidence that something exists on a website somewhere in the world.  The U.S. Supreme Court has repeatedly affirmed that a criminal defendant has a right to confront their accuser and subpoena witnesses in their defense.  Websites are not automatically admitted into evidence and nor does the existence of a website prove beyond a reasonable doubt who either supplied or placed the picture.

The U.S. Court of Appeals for the Fourth Circuit and the Supreme Court of Virginia have often looked skeptically upon criminal statutes focused that criminalize speech intended to "coerce, harass or intimidate" because they run into First Amendment issues.  Civil causes of action regarding this kind of behavior receive less scrutiny, but criminal statutes must be drafted with sufficient precision to put people on notice of what is illegal.

For example, someone posting a picture of a "plumber's butt" could be prosecuted under this statute depending upon the person's intent.  Picasso's Les Demoiselle's d'Avignon pictured above could be argued to be revenge porn if his ex-girlfriend revokes her consent to be displayed in a picture.  I'm not sure whether making fun of something or displaying artwork that the subject later finds to be unflattering is for purposes of "coercion, intimidation or harassment."

Freedom of the Press is also enshrined in both the Virginia Declaration of Rights and the U.S. Bill of Rights.  In theory, this statute could criminalize a newspaper publishing a picture of a celebrity in a "cheeky" bathing suit.  That probably would not pass constitutional muster.

The better way to approach this problems is to create a civil cause of action.  Harassment, coercion and intimidation are concepts that are readily approved in the civil sphere.  It is also much easier to sue people across state lines and judgments are easily enforced in other states.  Taking a huge judgment against some of these revenge porn kingpins will be more likely to change their behavior rather than a misdemeanor conviction.

Lastly, there has been a propensity to over-criminalize conduct in recent decades and I always look upon new crimes skeptically.  In his last two years, U.S. Senator Jim Webb introduced legislation to create a commission focused on reducing the number of crimes on the books and looking at rationalizing sentences.  Criminalizing conduct is expensive and often counter-productive.  From my point of view prosecutors core responsibilities ought to focus on violent crime and large scale financial crimes that inflict far more harm on our society than many of the conduct that is the subject of new criminal statutes that gain much press.

Most "revenge porn" is bad behavior, but enabling our criminal justice system to go after is not the best deterrent.