Monday, November 3, 2014

Revenge Porn, Sexting & The First Amendment--Not Made to Mix

Revenge porn involves posting sexually explicit material online to get even with a former partner. For example, if partners make sex tapes of themselves together, when they break up, one gets even with the other by uploading such a video to the internet to share it with others. The vast majority of  victims of this are women. Even more commonly they send nude photos of one another over their cell phones. I have a complete legal presentation of this at Teachers Pay Teacher here. One could forward that presentation to one's relatives if and when this subject arises. I explain further on about how one's children and grandchildren might get caught up in this dilemma.

Usually the perpetrator wants to cause harassment of the victim so he also posts her full name, links to Facebook and other social media, place of employment, home address and so forth. It is a good way for a woman to end up with stalkers or worse. Some women have lost their jobs over this or had to change names, residences and everything else which is a way of tracking them.

But women can offend too. Take the case of girlfriend #2 jealous of girlfriend #1. Rachel Craig, left, is a girlfriend #2. She was the first person to be charged in Virginia under its new 'revenge porn law’. She stole a nude photo of her boyfriend’s ex girlfriend from his phone and posted it on Facebook. She was jealous of this woman. This criminal law carries a $2,500 fine and a one year prison sentence. However, law enforcement is lukewarm to making any of this a crime. They don’t mind chasing down pedophiles but the last thing they want to do is get in-between people who have been voluntarily sending nude pictures to one another who are now miffed about it, or their new people are, and want them to solve the problem.

Cyber Civil Rights was formed to fight against revenge porn. The group focuses on the non-consensual status of the victim with the intent to humiliate the victim. Its website is endrevengeporn.org and it seeks to make revenge porn a criminal offense. I listened to the Miami attorney who helped found this on a podcast. I did have one problem with her focus though. She believes this behavior should be criminalized largely because she was burned by an ex-boyfriend in this fashion after she voluntarily sent him her own explicit sexual imagery. She believes that this is the new way love operates with our having the online world in our lives and that it deserves protection. I disagree. I think you take your chances if you decide to join the growing number of people doing this.

The ACLU agrees with me. It has filed suit against the Arizona revenge porn law which took a sledgehammer to the First Amendment right of freedom of expression when it outlawed revenge porn. The ACLU contends that Arizona is criminalizing non-obscene speech. To read more about this case go here.

After listening to a panel of lawyers debate this subject, I agree with the majority of them that is probably next to impossible to draft a revenge porn law which would work which would not be struck down by the Supreme Court on First Amendment grounds.  We have spent a long legal time to getting to the point where nude imagery is legal. We cannot stuff all of that law back down the rabbit hole because some adult men and women are sending such images of themselves to temporary partners. For those of you who do not believe in enlarging government every time something takes place in society, this is such a time when you ask yourself, "Why does the government need to become involved in this?"
Which leads to the question of what is the difference between revenge porn and sexting. (Sexting is a verb referring to the sending of sexually explicit messages, usually between mobile phones.) The proponents of criminalizing revenge porn say the difference is malign intent (which has got to be about the hardest thing to prove in a court of law). 

Let's look at a sext example which could become a revenge porn example with just a bit more intent:  a guy receives a sext from his girlfriend, turns to the guy(s) next to him, with whom he is at the bar, pub or game, and shows the picture to them. What legal offense is that? We can’t really call it revenge porn because there is no intent to get revenge or cause harm.The guy is bragging! How are we going to legislate against that and, even worse, make it criminal and throw someone in jail for it? And what if someone looking over his shoulder snaps it with his own phone and starts sending it around. Or someone in the bar has the knowledge to hack into his phone and steal what he is showing to his friends. This hacker then disseminates the image. Hacking is illegal but how in the heck are you going to catch this hacker in the bar, especially if you multiply his fellow hackers who are hanging out and hacking hither and yon around the entire country?
And how does this matter to you? Even assuming you don't engage in any of this, you might have children or grandchildren who do. They might come to you intent on pursuing this legally, with your help, to the ends of the earth. You are probably going to hugely regret getting involved in this. And what if such relative is underage? That is a completely different matter.

If the person posting this imagery online victimizes a minor in this fashion, this is already against the child pornography laws. If minors are sexting one another, that is not child pornography. A juvenile judge might consider the juveniles are engaging in ”unruly behavior” or some other catch all juvenile offense and penalize the minors under the juvenile laws. What arguably is really going on for adults is that a moral double standard continues in our society. Women still have some need to be seen as a “good girl”. Sexually explicit pictures online work against that image. Yet if a guy’s sexually explicit imagery is posted online, he typically does not care very much except if he is being thrown out of the closet for being gay or if he is married and worried his wife will catch him cheating. He is hardly going to go to the police if he is in either of those categories though.

Perhaps the most cringe worthy event which happened in this realm is when Travis Alexander sent a photo of his erect penis over the phone to his girlfriend. She later murdered him (Jodi Arias in Arizona) and this photo was used as evidence in the trial. The photos were also used as real world exhibits, shown here in actual trial.  At one point when the victim's family looked around the courtroom, every monitor at every angle in the courtroom showed that picture in full blown size. There was no objection to make as the nature of the relationship between the two of them was the essence of the defense's case. The defendant was portraying herself as a victim of his sexual abuse and this was her example of his continual sexual harassment. To not let it into evidence would have been reversible error.  The lesson on sexting is this: trust no one and don't do it.

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