Volume 57
Issue 4
Fall '20

Deconstructing the Statutory Landscape of "Revenge Porn": An Evaluation of the Elements That Make an Effective Nonconsensual Pornography Statute

Written By: Jonathan S. Sales and Jessica A. Magaldi

Abstract

Changes in social mores and technology have yielded the phenomenon of sext-ing, which includes the capturing and forwarding of intimate images through the Internet. Research reveals that nearly fifty percent of adults in the United States have sent or received intimate digital content. At the same time, the confluence of these changes has spawned new violations of privacy and predatory actions when these images are made available on the Internet without the subject’s consent. The re-distribution or dissemination of these intimate images without the consent of the subject and without a legitimate purpose (such as a law enforcement investigation) is referred to as nonconsensual pornography (“NCP”).

NCP has caused victims to suffer substantial harm. In some cases, NCP incidents have precipitated a victim’s suicide. Prior generations might have concluded that a person who allowed such images to be captured and placed in the possession of another person assumed the risk of re-distribution; in essence, a negligence, recklessness, or constructive consent argument. In contrast, in the twenty-first century, capturing or sharing of intimate images is often regarded as an acceptable private activity that is part of the current social contract (for example, within intimate, romantic relationships). As such, violations are worthy of punishment and consequent deterrence.

Since 2013, forty-eight jurisdictions (forty-six states, the District of Columbia, and Guam), have enacted criminal statutes to deter and punish acts of NCP. This suggests at  least a  general  societal agreement that NCP  should be a  criminal offense. However, the significant differences in the construction of the criminal NCP statutes (particularly regarding essential elements) disclose the absence of consensus over the exact nature of the new social contract regarding the sharing of intimate images. Additionally, challenges to the validity of NCP statutes raise the issue as to whether the U.S. legal system, including the U.S. Constitution, is capable of adapting to this new intersection of society and technology.

This Article examines these issues by deconstructing the regulatory schema of the jurisdictions that criminalize NCP into fundamental elements. Part I addresses background facts, representative incidents, and damages to victims. Part II analyzes the general construction of criminal statutes into actus reus and mens rea elements. Part III sets forth a review of the statutory schemes that criminalize NCP. Part IV reviews the circumstances of jurisdictions without NCP statutes. Part V considers some sources of differences in the elements included in the various NCP statutes.

This analysis reveals that the more numerous the essential elements of an NCP statute, the more likely the statute will allow substantial NCP conduct to escape prosecution. Conversely, statutes that focus on the issue of the victim’s lack of consent for the defendant to distribute the intimate image and that have fewer additional essential elements allow fewer perpetrators of NCP to escape prosecution.

This Article also examines the underlying factors that resulted in these disparities, including the rigors and compromises inherent in the political process underlying the enactment of such statutes, and the influence of the First Amendment to the U.S. Constitution.

As described herein, the twenty-first century is characterized by constant technological innovation and an increased pace of change in social values. The shortcomings of these NCP regulatory schema raise the prospect that the U.S. legal system is struggling to protect the general public from bad actors that exploit these technological and social developments.

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