The internet has made life easier in a lot of ways. It has made it much easier to communicate with people who are far away – even on the other side of the world. It has made it easier to share information, like photos and videos, in real-time. It has put a world of information at our fingertips.

It has also introduced several somewhat new crimes. Revenge porn is one of them.

Surveys reveal that as many as 60 percent of adults in the United States have taken a sexually explicit or nude photo or video of themselves and shared it with another person. It is also estimated that US adults send 20 intimate or sexually explicit photos every second. That’s a lot of photos out there, but sometimes those photos wind up in the hands of people who were NOT the subject’s intended recipient.

Then it becomes criminal.

If you have been charged with a revenge porn offense, you should not mistake it as a minor offense just because it is a misdemeanor. There can be fines and civil action attached to it and a bill is out there that, if passed, would make revenge porn a federal crime with up to two years in prison.

Revenge porn is serious, and it could put a black mark on your record forever. Potential employers may not hire you and potential landlords may not rent to you. If a potential romantic interest runs a background check on you, they will see that conviction. That would likely not bode well with someone who is considering having a relationship with you.

Defending someone against a revenge porn charge is something that not all criminal defense attorneys are trained to do.

When You are Facing Revenge Porn Charges You Need an Attorney Who Knows the Ropes

Revenge porn is part of a new and evolving group of laws centered around the internet and online activity. The newness of it can have both positive and negative effects. Positive because there are few if any precedents set and the laws are in the process of being enacted. Negative because there are few precedents, so prosecutors will be looking to make an example out of someone, to set a precedent.

Don’t let anyone tell you, “Oh, it’s just a misdemeanor” or “It’s not that big of a deal.” It’s your life, your livelihood, your reputation on the line. It is a big deal.

When you find yourself fighting a revenge porn charge, do not do it alone. You need an attorney who understands and has experience in cyber laws. You need someone who has the knowledge and education to address this offense head-on and fight for you. You need the Litvak Law Firm.

Overview of Revenge Porn

Revenge porn, or “nonconsensual porn,” is the distribution, posting, or sharing of at least one sexually explicit photograph of another person without their permission. It doesn’t matter if the subject of the photo took the photo, if someone else took the photo, or if the person sharing the photo was behind the camera. If the subject did not give their permission for the photo to be shared, then sharing it, is against the law and is a punishable offense.

Often the person sharing or distributing the photo is an ex-spouse, ex-partner, or ex-romantic interest. However, former roommates, ex-friends, hackers, or anyone who has access to the photos can become guilty of revenge porn if they share the photo with even one person.

The majority of victims of this crime are female.

There are revenge porn websites where people can post revenge porn images and videos. In many cases, the sites are not liable for the content posted on the site, thus not implicated in the crime of revenge porn. 

Many states have made revenge porn a crime and now the federal government is trying to pass a law that would make it illegal at the federal level with prison time and fines.

Deepfake Pornography

Deepfake pornography hovers on the line between legal porn and illegal revenge porn. The person creating deepfake porn uses specific technology to superimpose a person’s face onto another person’s body to create a composite photo that looks authentic. 

While it can be argued that this is done for artistic reasons or some other benign reason, sometimes it can come dangerously close to being considered revenge porn. The only way that a person can be violated by deepfake porn (and the only way it would become illegal) is if someone recognized the person. The person would have to be identified and known so they could press charges.

Federal Revenge Porn Offenses

Revenge porn is not a federal crime – yet. There is currently a bill that is moving through the process to make it a law. The “Shield Act” (Stopping Harmful Image Exploitation and Limiting Distribution Act) is an amendment to the Violence Against Women Reauthorization Act of 2021. The Shield Act makes the nonconsensual distribution of sexually explicit or nude images illegal.

It would make it a crime “to knowingly use any means or facility of interstate or foreign commerce to distribute an intimate visual depiction of an individual” if the offender has a reckless disregard for the victim’s lack of consent or reasonable expectation of privacy.

Under this amendment, revenge porn would carry a maximum sentence of two years for distributing nonconsensual images — or even just threatening to distribute them.

Under the proposed law, there are exceptions such as legal proceedings, reporting illegal activity, public concern, and law enforcement activity. As of August 30th, 2021, the amendment was under review.

New York Revenge Porn Offenses

Bill number S1719C was passed by a unanimous vote and was signed by the New York governor on July 23, 2019. It amended the New York penal law, criminal procedure law, the family court act, and the civil rights law by making the unlawful dissemination or publication of an intimate image a crime.

Section 1 adds a new section, 245.15 to the Penal Law, which provides that a person is guilty of unlawful dissemination or publication of an intimate image when with intent to cause harm to the emotional, financial or physical welfare of another person, he or she intentionally disseminates or publishes a still or video image of such other person, who is identifiable from the still or video image itself or from the information displayed in connection with the still or video image, without such person’s consent.

Additionally, the dissemination must depict an unclothed or exposed intimate part of such other person; or such other person engaging in sexual conduct with another person, and such still or video image was taken under circumstances when the person depicted had a reasonable expectation for the image to remain private, regardless of whether the actor was present when the still or video image was taken.

The bill was also added to the Criminal Procedure Law and to Section 812 of the Family Court Act which provides concurrent jurisdiction to both the criminal and family courts over any proceeding that would concern unlawful dissemination of publication or an intimate image.

It was also added to the Civil Rights Law of New York to allow victims a private right of action.

The law is very specific and covers both the person who is accused of publishing or disseminating the image or images and the website or internet services provider that is involved:

Section 1 – Regardless of whether or not the original still or video image was consensually obtained, a person depicted shall have a cause of action against an individual who, for the purpose of harassing, annoying or alarming such person, disseminated or published, or threatened to disseminate or publish, such still or video image, where such image was taken when such person had a reasonable expectation of privacy, and it depicts an unclothed or exposed intimate part of such person, or such person engaging in sexual conduct with another person, and it was disseminated or published, or threatened to disseminate or publish, without the consent of such person.

Any website or internet service provider that hosts or transmits a still or video image, viewable in this state, taken under circumstances where the person depicted had a reasonable expectation of privacy, which depicts an unclothed or exposed intimate part of a resident of this state, or a resident of this state engaging in sexual conduct with another person and which reveals an unclothed or exposed intimate part, and such still or video image is hosted or transmitted without the consent of such resident of this state, shall be subject to personal jurisdiction in a civil action in this state to the maximum extent permitted.

Sexually explicit images may include:

  • Exposing intimate parts of the body, including
    • Genitals
    • Buttocks 
    • Erect male genitals 
    • Pubic area
    • Female breasts
  • Sexual conduct, including:
    • Sexual intercourse
    • Contact with a person’s intimate parts (clothed or unclothed) for sexual gratification
    • Masturbation
    • Deviate sexual intercourse
    • Sadomasochistic abuse
    • Lewd exhibition of the genitals

Websites that publish and distribute revenge porn have some immunity under the federal Communications Decency Act.  That is why New York lawmakers pressed for stronger state laws with more consequences for the offender. 

This is also why provisions were made to allow for the victim to pursue a civil case that includes the torts of intentional infliction of emotional distress and harassment. While this civil action is designed to work in conjunction with criminal law, there does not have to be a criminal charge or conviction for the victim to pursue it. The choice is left to the victim if they want to pursue a civil case, criminal case, or both.

Penalties for Revenge Porn Offenses

There are several penalties that can come with a conviction of unlawful dissemination or publication of an intimate image. These are dependent upon what the judge believes to be the best course of action:

  • Maximum 1 year in jail
  • Probation
  • Community service
  • Order of Protection or Restraining Order against them (Family Court)
  • Pay the victim punitive damages, injunctive relief, compensatory damages, and reasonable attorney’s fees and court costs (Civil Court)

If you have a family court case, custody, visitation, or other types of cases, that can be affected by a conviction of unlawful dissemination or publication of an intimate image. It also allows the victim to get an immediate order of protection. 

Revenge Porn Defenses

There are four statutory exemptions to unlawful dissemination or publication of an intimate image charge:

  1. Reporting unlawful conduct
  2. Dissemination or publication of an intimate image made during lawful and common practices of law enforcement, legal proceedings, or medical treatment
  3. Images involving voluntary exposure in a public or commercial setting
  4. Dissemination or publication of an intimate image made for a legitimate public purpose

Other defenses that your attorney may use include:

  • Mistaken identity
  • The victim gave their permission or encouraged you to publish or disseminate the images
  • Evidence against you was illegally obtained

Criminal cases are complex. It is easy to become overwhelmed, especially with the complexity of this offense. At the Litvak Law Firm, we will answer your questions and work with you to explore possible defenses. Then we will aggressively fight for your rights to achieve the best possible outcome. If you are facing a revenge porn charge, do not wait. Get an attorney who knows the laws and has the experience. Call our office at (718) 989-2908, for your free consultation and get the legal representation you deserve.