Recently, a number of state legislatures have either passed – or have had bills introduced – seeking to regulate what is dubbed “revenge porn.” Revenge porn is taking nude photos or videos of another person, surreptitiously or without their consent, and then disseminating them via the Internet or elsewhere with the intent to cause harm or embarrassment to the person represented.
California’s ‘Revenge Porn’ Law
California is one state that has enacted such legislation, known as SB 255, which can be viewed by following this link. Under California’s law, a person is guilty of a misdemeanor “disorderly conduct” for disseminating “revenge porn.” In order to violate California’s statute, the images or video must be taken without the represented person’s consent, although the statute does not clearly define what constitutes consent when the parties dispute whether the images were meant to be private.
Moreover, the California law only covers the original maker of the image. The law does not apply to website owners or others who republish images.
Finally, the images must have been disseminated with the intent to cause the represented person severe emotional distress – and – the person must have, in fact, suffered severe emotional distress. This is often difficult to prove.
Wisconsin’s ‘Revenge Porn’ Law
The Wisconsin Legislature has also proposed its own version of “revenge porn” legislation. However, unlike California’s law, Wisconsin’s version shows just how far-reaching these laws might become when legislators get caught up in the broad-based morality arguments about pornography and lose their focus on what these specific laws are supposed to combat.
Similar to California’s law, a person is guilty of a Class A misdemeanor if they disseminate nude images or video of another person without their consent via the Internet or other means. However, in sharp contrast to California’s law, the Wisconsin law is violated even if the person publishes the images or video without any particular intent to do harm. In other words, accidentally tweeting your boyfriend’s nude photos instead of photos the two of you took of your newborn kittens would violate Wisconsin’s statute. It would not violate California’s version.
Even more troubling, the Wisconsin statute appears to possibly criminalize the electronic publication of nude photos or videos for any non-commercial purpose. Under the statute, “consent” as a defense to criminalization appears to apply only when a person consents to the taking of nude photos or video as part of a commercial transaction; e.g., professional modeling or films. Otherwise consensual sexual situations, where the parties decide to take pictures or videos, potentially run afoul of the statute if the images or video are later distributed to a third-party.
For More Information
California and Wisconsin are by no means the only states with laws such as these already on their books or under consideration. If you are interested in this topic, you can read more about California’s law here and Wisconsin’s law here. Each article contains references or links to the actual language used in either state’s legislation. The California legislation will also be put into the Jox Box.