New York’s proposed legislation to criminalize Non-Consensual Disclosure of Sexually Explicit Images

New York state assemblyman Edward Braunstein has proposed legislation to combat the growing problem of “revenge porn,” or the non-consensual disclosure of sexually explicit images. All too often, after a consensual sexual relationship ends, a bitter ex-husband or ex-boyfriend lashes out by posting sexually explicit images of his former lover on the internet. (Note: It is not illegal for websites to host these photos, as sites are not generally responsible for the content posted by non-employed users, though a number of attorneys have attempted to sue them on behalf of their clients. See Section 230 of the Communications Decency Act, at 47 USC §230[c]). The proposed bill, the text of which is below, would make it a class A misdemeanor punishable by up to one year in jail to disclose sexually explicit images when the victim had a reasonable expectation that they would not be shared outside of the relationship.

S T A T E O F N E W Y O R K
_____________________________________________________________________________________________

8214

2013-2014 Regular Sessions

I N A S S E M B L Y

October 24, 2013
___________

Introduced by M. of A. BRAUNSTEIN, BRINDISI, PAULIN, SCHIMEL, McDONOUGH, DUPREY, MONTESANO — Multi-Sponsored by — M. of A. CROUCH, SKARTADOS, WEISENBERG — read once and referred to the Committee on Codes

AN ACT to amend the penal law, in relation to establishing the crime of non-consensual disclosure of sexually explicit images

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1. Section 1. The penal law is amended by adding a new section 250.70 to
2. read as follows:
3. S 250.70 NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES.
4. A PERSON IS GUILTY OF NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT
5. IMAGES WHEN HE OR SHE INTENTIONALLY AND KNOWINGLY DISCLOSES A PHOTO-
6. GRAPH, FILM, VIDEOTAPE, RECORDING, OR ANY OTHER REPRODUCTION OF THE
7. IMAGE OF ANOTHER PERSON WHOSE INTIMATE PARTS ARE EXPOSED OR WHO IS
8. ENGAGED IN AN ACT OF SEXUAL CONTACT WITHOUT SUCH PERSON’S CONSENT, AND
9. UNDER CIRCUMSTANCES IN WHICH THE PERSON HAS A REASONABLE EXPECTATION OF
10. PRIVACY. A PERSON WHO HAS CONSENTED TO THE CAPTURE OR POSSESSION OF AN
11. IMAGE WITHIN THE CONTEXT OF A PRIVATE OR CONFIDENTIAL RELATIONSHIP
12. RETAINS A REASONABLE EXPECTATION OF PRIVACY WITH REGARD TO DISCLOSURE
13. BEYOND THAT RELATIONSHIP.
14. 1. FOR THE PURPOSES OF THIS SECTION:
15. (A) “DISCLOSE” MEANS TO SELL, MANUFACTURE, GIVE, PROVIDE, LEND, TRADE,
16. MAIL, DELIVER, TRANSFER, PUBLISH, DISTRIBUTE, CIRCULATE, DISCLOSE, PRES-
17. ENT, EXHIBIT, ADVERTISE OR OFFER.
18. (B) “INTIMATE PARTS” MEANS THE NAKED GENITALS, PUBIC AREA, BUTTOCKS,
19. OR FEMALE ADULT NIPPLE OF THE PERSON.
20. (C) “SEXUAL CONTACT” MEANS SEXUAL INTERCOURSE, INCLUDING GENITAL-GENI-
21. TAL, ORAL-GENITAL, ANAL-GENITAL, OR ORAL-ANAL, WHETHER BETWEEN PERSONS
22. OF THE SAME OR OPPOSITE SEX.
23. 2. THIS SECTION SHALL NOT APPLY TO:
1. (A) LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, CRIMINAL REPORT-
2. ING, OR LEGAL PROCEEDINGS; OR
3. (B) SITUATIONS INVOLVING VOLUNTARY EXPOSURE IN PUBLIC OR COMMERCIAL
4. SETTINGS.
5. 3. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 80.05
6. OF THIS CHAPTER, THE COURT MAY IMPOSE A FINE NOT TO EXCEED THIRTY THOU-
7. SAND DOLLARS.
8. NON-CONSENSUAL DISCLOSURE OF SEXUALLY EXPLICIT IMAGES IS A CLASS A
9. MISDEMEANOR.
10. S 2. This act shall take effect on the first of November next succeed-
11. ing the date on which it shall have become a law.

EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11834-06-3
A. 8214 2

The bill is commendable and New York needs some sort of statue to protect victims. We have some questions about this legislation, however. First, it is unclear whether a person convicted of this crime would be forced to register as a sex offender. We think that such a designation could be unduly harsh in a situation in which, for example, a boyfriend discovers that his girlfriend is cheating on him and posts these pictures in a fit of rage. Also, it would be questionable as to whether such a person convicted of a crime would need to be registered and monitored as a sex offender for twenty-five years (the minimum registration duration as a low-level Level 1 offender), since there may not be any scientifically valid basis to believe that such a person is at a higher risk of re-offending or committing some other sex crime.

Of course, there are legitimate concerns about the First Amendment being violated by this proposed criminal statute. Certainly, it is legal for a person to say terrible things about a person on a blog or website, so why should it be illegal to post photos?

We suggest that this legislation would be more sensible if it provided a civil court remedy for victims by creating a tort for the violation of this criminal statute (and thereby violating the victim’s privacy and/or dignity) and by creating a specific statute of limitation for pursuing these lawsuits that starts running when the disclosure of the images is discovered by the victim. (It would be akin to New York’s CPLR 213-c civil statute of limitation that applies to victims of certain sex crimes, or it would be an amendment of that statute). New Jersey’s statute relating to “revenge porn” does provide a civil remedy – New York should offer the same protections to victims. Some victims might not be able to pursue a claim at civil law, as attorneys can be expensive and would be necessary, and some perpetrators are so broke as to be “judgment proof,” but the option should be made available, as we think it could certainly be an effective deterrent for some people seriously considering posting sexually explicit images of their exes.

If you or a loved one have been a victim of “revenge porn” or the non-consensual disclosure of sexually explicit images, you should seriously consider contacting an experienced victim’s lawyer and former sex crimes prosecutor.