States respond to ‘revenge porn’

Texas may join an increasing number of states considering legislation to address what is known as “revenge porn.” The term usually refers to electronic distribution of sexually explicit images of someone without the subject’s permission. The images, sometimes taken without consent, may be posted on websites or emailed to employers, schools, family members, and others. Sometimes contact or identifying information, including names and Social Security numbers, are included.

According to the National Conference of State Legislatures (NCSL), most state laws criminalizing these activities are misdemeanors, with subsequent offenses sometimes felonies. In 2013, California became the first state to enact a law specifically to address recent cases. Another 12 states since have approved new laws, and about half considered legislation in 2014, according to NCSL. A compilation of state efforts to enact these laws appears on the NCSL website.

Current Texas criminal laws

While Texas law does not specifically make distributing revenge porn illegal, aspects of it may currently be crimes. Harassment is a class B misdemeanor under Penal Code, sec. 42.07, which includes sending repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. Impersonating another through online communications ranges from a class A misdemeanor to a third-degree felony under Penal Code, sec. 33.07. This offense can involve using someone else’s name without consent to create a web page on a social networking or other site or to post or send messages with an intent to harm, intimidate, or threaten.

Texas’ improper photography law, under Penal Code, sec. 21.15, includes photographing, recording, broadcasting, or transmitting images without consent and with intent to arouse or gratify sexual desire. It is a state-jail felony. This law has been challenged in court as vague, overbroad, and violating the First Amendment. The Texas Court of Criminal Appeals heard oral arguments in May in Ex Parte Thompson, which challenges the law.

Should states address revenge porn with new criminal laws?

Criminal laws recently enacted in other states may prohibit posting or distributing sexually explicit images without the subject’s permission. Another approach is creating a cause of action for civil damages. The 83rd Legislature in 2013 considered HB 3627 by M. González, which would have made individuals liable to certain victims for “promotion of an improper visual image.” It died in the Judiciary and Civil Jurisprudence Committee.

Supporters of new criminal laws to address revenge porn say current laws provide inadequate deterrence and punishment. Victims can suffer threats, harassment, stalking, and sexual exploitation that intrude into their work, school, or personal lives. Harm is difficult to remedy because removing images from the Internet rarely prevents continued distribution. Website operators can deny knowing who posted the content, while those who post or distribute it may deny responsibility for its viral spread.

Civil lawsuits may provide inadequate compensation. Websites and defendants may have limited resources, making damage recovery difficult. Victims may lack resources to pursue lawsuits or be unwilling to attract further attention. Copyright law may provide ineffective redress because the photographer, not the subject, often owns the image’s copyright. Website operators can sometimes use federal laws to deny responsibility for content posted by others.

New criminal laws could be narrowly drafted with exemptions to ensure they were not overly broad or vague and did not unconstitutionally infringe on free speech. They could require intent and proof of harm or could include exemptions for matters of public importance or for certain commercial or law enforcement actions.

Critics of new criminal laws to address revenge porn say that in many cases, current statutes, including those for harassment, impersonating another, and improper photography, already criminalize these activities. In addition, victims currently can seek redress through civil courts, critics say. In February 2014, a woman was awarded $500,000 by a Harris County jury for intentional infliction of emotional distress, invasion of privacy, and defamation in such a case. A 2014 California civil case resulted in a $250,000 jury award. Copyright laws also could be used in some cases to require removal of images from websites.

States should be cautious about creating new crimes for nonviolent behaviors. While distributing these images may be reprehensible, critics say, these cases generally should be handled outside the criminal justice system, whose resources are better spent dealing with dangerous criminals.

It would be difficult to craft an effective law that did not also lead to free speech violations or unfair convictions. Definitions of “revenge porn” could be overly vague, laws criminalizing normal speech or activities could be overly broad, and laws too narrowly drawn could be inadequate to help most victims.

by Kellie A. Dworaczyk

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