image5

Victims of Revenge Porn

The Unlawful Dissemination or Publication of an Intimate Image - NYPL Section 245.15


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. 

Revenge Porn Definition


Revenge porn is the distribution or release of personal sexually explicit media involving a person who has not consented to their release. 


“Media”


The media may consist of photographs, videos, or any other recording.  

Elements of Revenge Porn

“Intentionally”


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.


“Emotional, Financial, or Physical Harm”


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.


“Identification”


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.


“Consent of the Victim”


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.

 

Penalties for Revenge Porn


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.


Penalties for Child Pornography, Hacking, or Cyber-Stalking  


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.


Penalties for Cyber Stalking with a "Direct Threat of Violence"


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. 

Crimes Related to Revenge Porn

Computer Hacking


The Computer Fraud and Abuse Act -  Title 18 of the United States Code § 1030 -  The illegal access of a computer or electronic device of a victim.  This may be committed  in order to steal a victim’s private sexually explicit pictures


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. 


Cyberstalking


Federal Anti-Cyber-Stalking Law - 47 U.S.C. § 223 - The use of electronic means to establish continuous unwanted contact. The United States Federal Code has a specific law criminalizing cyberstalking, found in the Anti-Cyber-Stalking Law, 47 U.S.C. § 223.  This law contains the following elements:


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.


Child Pornography -  If the victim is underage, possession of sexually explicit photographs of them might in itself be illegal under federal child pornography laws. 


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.


California v. Casey Meyering and “WinByState”


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.


Final Charges


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.   

Defenses to Revenge Porn


  • Consent


One of the most important defenses to revenge porn charges are that the photographs or videos were shared with consent of the alleged victim.  If consent is given, either affirmatively or implied, the offense of revenge porn cannot exist.  


Affirmative consent is when a person directly communicates that something is ok to do - for example, if someone sends a nude photo of themselves via text to a friend and then says it is ok to send that photo to others, that is affirmative consent.  Implied consent is when no direct consent is given, but a person has a reason to believe they have consent to do something.  


For example, if someone receives nude photos of a friend often and in the past was given permission to share those photos, it would be reasonable to believe they have consent to do so for a new photo they received.


  • Mistake


The mistaken release of explicit photos is another important defense to revenge porn.  A mistake can be made when sexually explicit photos or videos are accidently released.  This can happen if a picture is inadvertently attached to an email, is sent to the wrong person or group, or if the photo or video is stolen from a person that has a legal right to possess it.


  • The Victim is Not Identifiable


The identity of the victim must be apparent in order for a crime of revenge porn to have been committed. This defense may be very subjective based on the facts of the situation.  If a person’s face is blurred or not in the frame of a photo or video, it may be argued that identity of that person could not be possible.  However, if some other form of identity is possible (ie a noticeable physical characteristic or location), the identity of the victim may still be established.


Civil Damages for Revenge Porn


Revenge porn is not only a criminal offense but can also give rise to civil lawsuits for monetary or injunctive relief from the courts.  In order to obtain such damages, a civil suit must be made and found to meet the elements of revenge porn or other related civil offenses.


Jane Doe v. David K. Elam II, District Court of California, filed December 22, 2014


A significant civil case for revenge porn was filed in Federal Court in California in 2014  In this case, the victim, named anonymously only as “Jane Doe”, shared explicit photos of herself with her then boyfriend, David Elam.  


Jane Doe and Mr. Elam broke up afterwards, however Mr. Elam still had the photos.  After the breakup, Mr. Elam posted the photos on the internet in several different locations, including publicly shared social media pages and revenge porn websites.  He also directly sent the pictures to friends and family members of the victim.


The court found, through a default judgment, that judgement should be made to Jane Doe in the amount of $6.4 million.  The court awarded $450,000 for copyright infringement, $3,000,000 for stalking and impersonation, and $3,000,000 for emotional trauma based on California’s revenge porn laws.


Revenge Porn Rights and Protections


Victims of revenge porn often feel humiliated and embarrassed about what is happening to them.  It can be a very emotional event, where a victim feels anger, humiliation, and depression with feelings of hopelessness.  If you or someone you know is facing a situation you believe to be revenge porn, you should ensure that you protect your rights.


Revenge porn can not only take an emotional toll, but also have financial consequences.  You can lose your job or feel forced to pay off criminals in the hopes embarrassing pictures or videos are not released.   It is important to seek out an experienced professional with a deep understanding of revenge porn cases to help you at this vulnerable time in your life.


Many important decisions and actions may need to be made quickly and having an attorney who has previously handled these types of matters can provide the help you need.


Attorney Consultations


Many people who have faced your situation have come to our law office for help.  


We provide consultation and representation for those looking to protect their rights and safety.  Every case is treated carefully to ensure our client is well informed of their situation and all options are explored including prosecutions and civil filings. 


Our office strives to keep all sensitive information confidential and private, with particular care to ensure our client’s needs are met.  Contact our office today to speak with an experienced professional to set up an immediate consultation to discuss your situation.


Contact Us


Revenge porn can be a devastating situation for victims.  The embarrassment and fear can be overwhelming.  


Often, victims feel confused and alone.  But you are not alone.  It is important that you contact us immediately to help you.  


Time may be a factor if someone is threatening you with embarrassing photos or videos or if they have already released them.  

Contact Us

Drop us a line!

Better yet, see us in person!

We love our customers, so feel free to visit during normal business hours.

Reputation Attorneys