Is Revenge Porn a Crime?

Unless you’re a celebrity, it’s not likely you’re intentionally releasing a sex tape and in fact, you may be one who would never even make a sex tape, much less add it social media. But what happens if a tape exists and an ex has decided to commit the ultimate betrayal of uploading that video to all of his followers, including your Aunt Jane who follows him on Instagram and your mother who is Facebook friends with him?

It can be a devastating reality, but there are laws that protect residents of California from revenge porn. It is certainly a crime and one with serious consequences. The law designed was passed to dissuade those from posting private pictures and videos online without the express permission of the other person.

In California, revenge porn is a misdemeanor. The punishment can include a 6-month jail sentence and a fine of $1,000. Repeat violations mean more fines.

Proving the crime can be challenging.

The prosecutor must provide evidence that the images or the video that shows one’s intimate body parts were made with the understanding that they would remain private and no one else would be given access. The images, that show the victim and identifies him or her, were released with the knowledge that doing so would be detrimental and would cause emotional distress to the victim and the victim suffers the distress. It can be challenging prove these elements.

One reason is in the small print: if the victim takes the pictures or records the video, the law will not apply. In other words, sending a compromising selfie you took just out of the shower and then text it to your significant other can never be deemed revenge porn, even if the ex distributes it to the world.

If the images or video is stolen from your ex’s computer, the ex cannot be liable for what a hacker has done. He or she has no liability since they did not distribute the images. Here’s a wildcard that many may not know: if your ex hands his phone to a friend to look at a picture online or to read a text and this friend finds the image or video and distributes it himself, the ex cannot be liable for what his friend did – even if your ex took the images or shot the video.

California law is clear in terms of intent, which can be challenging to prove in a court of law. Proving intent on many things is subjective. For instance, someone may have uploaded the images or video into his cloud and had it stolen. The fact that it was “stolen” by a friend may prove difficult to prove that the two worked in concert to avoid liability, thereby complicating the intent element.

Finally, in California, proving distress is challenging. Like intent, it can be subjective and impossible to ascertain.

If you have been a victim of revenge porn, there are a few things you should do. The first is to contact law enforcement. Meet with them in person. Don’t email or text. It’s imperative that they see you taking this seriously and nothing says that better than a face to face meeting. Document everything – all communications with your ex, text messages, screen shots of Facebook or other social media posts and of course, emails. They may prove valuable to your case. Finally, keep all paperwork associated with any guidance you sought in dealing with the distress. Providing appointment slips or receipts of payments won’t jeopardize confidential information shared with a psychologist.

Understand – revenge porn in California is increasing. The laws aren’t going to ever be enough to stop it entirely. Be proactive – avoid anyone wishing to video or take still shots of compromising positions. That will always be your first best move to protect yourself.