Victims of Revenge Porn

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New York has recently put into law the criminalization of revenge porn.  

The Unlawful Dissemination or Publication of an Intimate Image law was put into effect in 2019 and found in the New York State Penal Law § 245.15. 

This NY law has the following elements:

Elements of New York’s Revenge Porn Law

1. If a person intentionally
2. Causes a person any emotional, financial, or physical harm
3. By the dissemination or publication of a personal, intimate, or sexually explicit photo or video,
4. Which the victim is identifiable
5. And without the consent of the victim. 

Mistakes can be a defense to this crime, as the person accused of the crime must have known they were not allowed to distribute the images or videos.  The accidental release of such images or videos without the intent to harm a person is not a crime under the law.

The law requires that the victim of revenge porn suffer some form of harm, which can be emotional, financial, or physical.  Typically, revenge porn is released to humiliate the victim and cause them emotional distress.  But the harm can also be financial or even physical.  

For example, if a victim is threatened with the release of a sexually explicit photograph to her family, unless she pays money to stop it, she is facing financial harm.

“The dissemination or publication of personal, intimate, or sexually explicit photos or videos.”

The release of sexually explicit pictures or videos can be to just one single person or published in a public way for everyone to see.  This element just requires that the image or video be shared with another person.  

For example, if  a boyfriend sent his friend sexually explicit photos of his girlfriend, knowing she did not consent to him showing such photos, he has now met the element of distribution for revenge porn. Sexually explicit photos or videos are any depiction of a person with their clothes off or exposed intimate parts, or a person engaging in sexual conduct.

In order to be considered revenge porn, New York requires that the photos or videos objectively reveal the identity of the victim.  If the photo or video does not show the person’s face, it may not meet the requirement of the law, even if the victim knows it is them.

However, even if the face is hidden, but the victim is still identifiable by some way, it would meet the identification element for revenge porn.

The most obvious way for a victim to not give consent to the release of their sexually explicit images or videos is if they do not know they exist or if somebody has possession of them.

For example, if a hacker steals pictures from a victim’s computer, obviously that person has not given consent for those pictures to be released.  If the victim did give the pictures or videos to another person, it is a matter of fact as to whether that person has permission to release those pictures.

Typically, intimate pictures and videos are shared with the intent to keep them private, but it will be a determination of fact as to whether the victim gave any sort of consent for their release or if they intended for them to remain private.

Up to 364 days in jail and a fine of up to $1,000

New York Penal Law Section 245.15 classifies revenge porn as a Class A Misdemeanor.  This is for the criminal offense of revenge porn.  

Civil penalties may also apply in favor of victims of revenge porn.  

Section 52-B - Private Right of Action for Unlawful dissemination or Publication of an Intimate Image.

The court may award injunctive relief (the taking down or destruction of the photos or videos), punitive damages (money awarded to punish offenders of revenge porn), compensatory damage (money lost by the victim due to the revenge porn), and reasonable court costs and attorney’s fees.

Imprisonment between 1 year and 30 years per offense, with fines of up to $250,000

The production of child pornography carries a potential prison sentence of up to 30 years for violations of the federal child pornography laws.  

Registration as a sex offender is also mandatory.

Federal law provides for up to 5 years imprisonment for Cyber-Stalking with a “Direct Threat of Violence.”  The penalties are often dependent on the age of the victim.

Even without the threat of violence, cyber-stalking offenses can carry 1 year in prison and fines of up to $5,000. 

Elements of Computer Hacking

1. Knowingly accessed;
2. A computer;
3. Without authorization or in excess of authorization;
4. And that access leads to obtaining information protected by the United States Government, information contained in a financial record, information from a protected computer, 
5. or; with the intent to commit fraud,  extort an individual, cause damage,  or steal passwords. 

Elements of Cyber Stalking

1. Interstate or foreign communications
2. Made by a means of telecommunications devices
3. Knowingly made, created, or solicited,
4. Any comment, request, suggestion, proposal, image, or other communication which is obscene, or made without disclosing his or her identity, or made repeatedly or continuously,
5. With the intent to abuse, threaten, or harass another person.

Elements of Child Pornography

1. Possession or creation
2. Of the visual depiction
3. Of a minor (under 18 years old)
4. Engaging in sexually explicit conduct.

The possession or creation of such depictions does not need to be knowingly.  This is considered a per se offense, which means you can be charged with child pornography even if you do not know the age of the person in the depiction.

To meet these requirements, the illegal material must be in your possession or be readily available to you.  For example, undeveloped film which has not been made into a photo yet could still meet this requirement, since it could easily be made into a photo with the illegal material.

Visual depictions can include photos, videos, and computer generated images indistinguishable from an actual minor.  This has been expanded to include digital creations of life-like pictures that depict minors.  This means that the photos or videos do not even have to involve real people.

According to federal law, a minor is anyone under the age of 18.  It does not matter if that person is old enough for the age of consent for sexual activity.  

For example, in the state of New York, the age of consent is 17 years old, but any sexually explicit photographs of a 17 year old would be considered explicit pictures of a minor under the federal law.

Sexually explicit conduct is any activity which could be considered obscene or of a sexual nature.  The activity does not even need to be active - nudity of a minor has by itself been considered sexually explicit for the purposes of child pornography.

In 2014, the state of California brought charges against a man in Tulsa, Oklahoma who was running a website called WinByState.com.  Casey Meyering created the website which invited users to submit nude photos of ex-girlfriends or other random women, which he then posted on the website categorized by their location.  

If the women contacted him to take down the photos, he would require them to pay $250 before he would do so, otherwise they would remain posted. 

Complaints were made about the website to police, with at least one victim having her photos stolen from her computer by other hackers, who then sent the photos in to the website.  Even though the website was operated from Oklahoma,  Meyering took payments from victims to send to a bank located in California.

Based on this, Meyering was charged with 27 separate charges and plead guilty to 4 of them, including extortion, attempted extortion, and the state’s revenge porn law. He was sentenced to 3 years in prison and the website was shut down permanently.