Revenge Porn Is Still Legal in Most of America
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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.
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, toldSlate'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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