Revenge Porn Is Still Legal in Most of America

A law banning the practice took effect Tuesday in Colorado. In the rest of the country, though, there’s no law stopping you from posting sexually revealing pictures of your ex.

National Journal
Lucia Graves
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Lucia Graves
July 1, 2014, 8:50 a.m.

Col­or­ado on Tues­day be­came the most re­cent state to make re­venge porn il­leg­al. But in much of the coun­try, post­ing com­prom­ising pho­tos or videos of former ro­mantic part­ners as a form of re­venge car­ries no leg­al pen­al­ties.

The prac­tice was made in­fam­ous in 2010 by Hunter Moore, whose web­site Is Any­one Up? garnered na­tion­al at­ten­tion for pub­lish­ing nude im­ages of young girls, the pho­tos gleaned from the cell­phone archives of spurned ex-boy­friends. (The site of­ten in­cluded vic­tims’ identi­fy­ing in­form­a­tion, such as names, em­ploy­ers, and even ad­dresses.) The blo­go­sphere erup­ted in angry fire, and groups like Cy­ber Civil Rights Ini­ti­at­ive star­ted on­line cam­paigns ban­ning the prac­tice. Moore’s web­site was shut down on April 19, 2012, after a series of law­suits and polit­ic­al cam­paigns went after it.

The is­sue has been rap­idly gain­ing trac­tion among wo­men’s-rights act­iv­ists, as the pho­tos are dis­pro­por­tion­ately of wo­men and the pho­tos that do ex­ist of men are more likely to be pos­ted as a joke.

“There aren’t pop­u­lar re­venge-porn sites with pic­tures of na­ked men,” ex­plained one writer in The Guard­i­an, “be­cause, as a so­ci­ety, we don’t think it’s in­her­ently de­grad­ing or hu­mi­li­at­ing for men to have sex.” Aman­da Collins, the twentyso­mething New Jer­sey per­son­al as­sist­ant who main­tained Moore’s Face­book page, told Slate‘s Aman­da Hess in 2012 that men who ap­peared on Moore’s web­site were not something to be taken ser­i­ously, while wo­men were ripped apart: “At­tract­ive fe­males will get a bunch of guys drool­ing over their bod­ies, and also get a hand­ful of haters based on pure jeal­ousy. Un­at­tract­ive fe­males def­in­itely get verbally torn to shreds.”

Col­or­ado is one of nine states to ex­pressly bar re­venge porn this year, ac­cord­ing to the Na­tion­al Con­fer­ence of State Le­gis­latures. And more than two dozen oth­ers are con­sid­er­ing le­gis­la­tion (a pro­pos­al in Wash­ing­ton, D.C., called the Re­la­tion­ship Pri­vacy Pro­tec­tion Act, would make dis­trib­ut­ing re­venge porn a mis­de­mean­or pun­ish­able by up to a year in pris­on and a $2,500 fine).

Cali­for­nia was ahead of the curve, passing a law in the fall of 2013 to pro­hib­it the dis­tri­bu­tion of “in­tim­ate” im­ages taken “with the in­tent to cause ser­i­ous emo­tion­al dis­tress.” But some ar­gue the law, which pro­tects any im­ages that were taken with the sub­ject’s con­sent if the dis­trib­ut­or of the im­age is also the pho­to­graph­er, don’t go far enough.

Oth­er schol­ars have ar­gued that le­gis­la­tion com­bat­ing re­venge porn is likely to be too broad. Sarah Jeong, then the coed­it­or-in-chief of the Har­vard Journ­al of Law & Gender and a third-year stu­dent at Har­vard Law School, re­cently made the case in Wired:

Crim­in­al­iz­ing re­venge porn solves one prob­lem while po­ten­tially gen­er­at­ing many more. An over­broad crim­in­al law is a threat to the pub­lic, runs the risk of be­ing struck down by a court (for vi­ol­at­ing the First Amend­ment), or, even worse, be­comes the basis of ques­tion­able con­vic­tions and im­pris­on­ments. But an overly nar­row law — like the fi­nal ver­sion of the Cali­for­nia re­venge porn law, which does not cov­er selfies sent to the venge­ful ex or li­ab­il­ity for web­site op­er­at­ors — is little more than lip ser­vice to the harm suffered by vic­tims.

Of course, there is room for leg­al re­course through oth­er av­en­ues. As Jeong notes in her piece, oth­er rem­ed­ies against venge­ful exes in­clude civil tort ac­tions and crim­in­al stat­utes against ex­tor­tion. But the bur­geon­ing phe­nomen­on sug­gests that those av­en­ues aren’t enough.

Demo­crat­ic Rep. Jack­ie Spei­er of Cali­for­nia has taken the lead on craft­ing fed­er­al le­gis­la­tion, so­li­cit­ing ex­pert­ise at the state level and feed­back from so­cial-me­dia web­sites. But crit­ics note any such law could face chal­lenges un­der the First Amend­ment. “The great prob­lem le­gis­latures are fa­cing is that they really want to do good here … and are un­der pres­sure to act sweep­ingly and broadly,” Neil Richards, a law pro­fess­or at Wash­ing­ton Uni­versity in St. Louis, told The Chris­ti­an Sci­ence Mon­it­or. “But the best thing to do is to act care­fully, be­cause you can reg­u­late re­venge porn in a way … that re­spects the abil­ity of ma­jor [news out­lets] to re­port the news.”

If what’s be­ing pro­tec­ted here is the sac­red con­sti­tu­tion­al right to snark about things like An­thony Wein­er’s dick pics and link to them, I’m with Aman­da Mar­cotte, who deems it a good trade for a world where men have few­er weapons to stalk, ab­use, and con­trol wo­men.

Spei­er’s of­fice was un­able to con­firm any timeline on fed­er­al le­gis­la­tion. Con­gress, for the time be­ing, is avoid­ing the con­ver­sa­tion.

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