A few different state statutes govern California’s revenge porn laws, from harassment to unlawful distribution. In today’s blog, we cover the elements of a revenge porn charge in California and potential defenses you could argue in court.
What Constitutes Revenge Porn?
California has specific laws in place that outlaw “revenge porn.” It is a crime in the state to post or otherwise electronically distribute a digital image of another person in order to harass, cause fear in, or lead to injury of that person. Revenge porn, also called “cyber exploitation,” is a form of nonconsensual pornography (NCP).
California also has statutes that outlaw the unauthorized access of electronic devices or data by a person who does not have permission for such access. Anyone who has experienced the nonconsensual distribution of their image may sue in civil court.
Any individual who uses an electronic communication device can be charged with a misdemeanor if they intended to distribute or send the pornographic material depicting another person. Note that as used in the California statute, an “electronic communication device” “includes, but is not limited to:
- telephones,
- cell phones,
- computers,
- Internet Web pages or sites,
- hybrid cellular/Internet/wireless devices,
- personal digital assistants (PDAs),
- video recorders,
- fax machines, or
- pagers.
Any person who engages in harassment by electronic communications may also be charged with misdemeanor stalking under California law. As used in the California statute, “harassment" refers to knowing and willful conduct directed at a specific person that a reasonable person would consider seriously alarming, annoying, tormenting, or terrorizing and that serves no legitimate purpose.
Prosecutors can charge someone with a misdemeanor offense if they can prove, beyond a reasonable doubt, the following elements:
- Intentional distribution – the defendant intentionally distributed an image of the intimate bodily parts of another identifiable person, or an image of another identifiable person engaged in a sexual act.
- Intention of the parties – the persons involved with the distribution agreed or understood that the image was to remain private.
- Likely consequence – the individual distributing knew or should have known that distributing the image would cause serious emotional distress.
- Actual harm – the person depicted in the images suffered serious emotional distress.
For the purposes of the California unlawful distribution statute, a person “intentionally distributes” an image when they personally distribute the image or arranges, specifically requests, or intentionally causes another person to distribute that image. The court further includes in the definition posting a photograph of another person on the public social network page of the alleged victim’s employer.
The state statute also defines “intimate body part” as any portion of the genitals, the anus, and any portion of the breasts that is either uncovered or clearly visible through clothing. Additionally, note that the term “sexual act” refers to:
- sexual intercourse,
- sodomy,
- oral copulation,
- sexual penetration, or
- an image of masturbation by the person depicted or in which the person depicted participates.
Penalties and Sentencing
The nonconsensual distribution of images of another, harassment by electronic means, and unauthorized use of electronic devices are all serious crimes punishable by jail or prison time and fines.
Harassment of another person via electronic device is a misdemeanor (at the very least) in California, and a person convicted of this misdemeanor could face up to 364 days in jail and/or a fine of up to $1,000. Similarly, the unlawful distribution of a private image is a misdemeanor in California that carries up to 6 months in jail and/or a fine of up to $1,000. If the victim of the unlawful distribution was a minor at the time of the offense, the violation is punishable by imprisonment in a county jail for up to 364 days and/or a fine up to $2,000. Both harassment and unlawful distribution can be elevated to the felony level, which carries 16 months or 2-3 years in prison and/or a fine of up to $10,000.
Note that it is also a felony in California to knowingly and without permission access a computer, computer system, or computer network, or take or copy any data (e.g. images) from the computer, system, or network, and this can be a separate charge in addition to the above.
Defending Against a Charge
If you are facing a revenge porn charge, you have a few different defense arguments you could pursue. For instance, if the person depicted in an image you distributed or posted consented to the distribution, you could raise that consent as a defense against a charge of harassment or unlawful distribution of a private image. However, note that consenting to the recording of the image does not mean consenting to the distribution of the image. Additionally, if you have been accused of sending a harassing message or acting to incite harassment of the alleged victim by others, consent is not a valid defense.
If you face criminal charged for the unauthorized use of an electronic device, you could claim that you had permission to use the device, system, or network in question. However, if you posted or otherwise disclosed data (images) on this authorized device, system, or network, you must have had consent or permission from the person depicted in the images disclosed.
Another defense could be to argue that there was not a reasonable expectation of privacy in the recording or image. That is, the person viewed or recorded did not have a reasonable expectation of privacy (e.g. they were in a public place). Do note, though, that the alleged victim’s lack of a reasonable expectation of privacy is not a defense against harassment by means of an electronic device.
Charged With Distributing Revenge Porn?
If you have been charged with disseminating revenge porn in California, contact an attorney immediately. Our team at Corrigan Welbourn Stokke, APLC can take a look at your case and craft a strong defense against your charges, aiming to either mitigate your charges to a lower misdemeanor level or even to dismiss your charges.
Contact our firm at Corrigan Welbourn Stokke, APLC today to discuss your defense options.