Given the increased use of internet-based mobile devices, including smartphones, reported cases of cyber-crimes have dramatically increased over the last decade. Revenge porn, which is a form of cyber-harassment, is among these ‘new’ crimes. The law defines revenge porn is defined as non-consensual sharing of another person's sexual or intimate photos or videos to embarrass them. Mostly, these images or videos are posted or shared by an estranged lover, ex-boyfriend or ex-girlfriend as a way of getting back to their former lovers. The law classifies revenge porn as a form of domestic violence due to the intimate nature of the relationship between the defendant and the victim and the fact that it puts the victim in psychological and physical danger.

In essence, revenge porn is a form of an image or video-based sexual abuse. In 2013, California became one of the first states to pass ‘revenge porn’ laws that criminalized online posting and spreading of another person’s sexually-explicit images or videos without their consent. Revenge porn is a serious crime in Los Angeles, CA, and a conviction can completely change the course of your life. In addition to the possibility of being jailed and being heavily fined, a revenge porn conviction can be stigmatizing. It could cost you potential job opportunities and significantly impact your future dating relationships.

While California seeks to protect the rights of the victim through the revenge porn law, there is also the possibility of a wrongful accusation. You may also be unaware that disseminating another person’s sexually-explicit images or videos is a crime. Considering the negative consequences of being convicted of revenge porn, you should seek the services of an experienced domestic violence attorney. If you are in Los Angeles and are facing revenge porn accusations, our skilled criminal defense attorneys at the Los Angeles Criminal Attorney will guide you through the legal process and help you obtain the best possible outcome.

History and Consequences of Revenge Porn

In the last decade, the release of ‘celebrity sex tapes’ has been a common phenomenon in Los Angeles. However, many LA residents are unaware that the non-consensual distribution of such materials is a crime under California laws. This unawareness is against a backdrop of increasing cases of non-celebrity revenge porn incidences. The rise of the internet has subsequently led to the growth of the smartphone and related technologies, including mobile apps and social media. The enhanced camera and video features on smartphones have made it easy for almost anyone to take and share images and videos via social media and other instant messaging apps. While this phenomenon has had some positive impacts, it has led to an increase in cases of cyber-exploitation, including revenge porn.

It has become common for estranged lovers to post sexually explicit images of their ex-partners after an un-amicable break-up. The estranged lovers send the photos with the intention of getting back at an ex-partner in an intimate relationship, including ex-boy/girlfriends, ex-husband/wife, and former cohabitants. In most cases, such sexual images are private and intended to be seen only by the recipient but not third parties. Therefore, the sharing of such private photos with third parties can be extremely humiliating for the victim. Since most of the revenge porn images end up on the internet, the victim has no control over who sees them meaning their employer or close relative may come across them. The lack of control can cause untold emotional distress to the victim. Additionally, the violation of trust that comes with revenge porn can leave deep psychological scars on a victim and negatively impact his/her future intimate relationships.

However, the non-consensual distribution of another person's sexually explicit images is not limited to estranged lovers. There have been cases where a victim's computer or other devices where such images are stored being hacked and their private photos ending up on the internet. Whether distributed by an ex-lover or by another malicious person, non-consensual pornography can have a long term negative impact on the victim. 

In addition to the psychological or emotional costs that revenge porn victim has to incur, he/she may incur substantial financial costs while seeking justice and the protection of his/her reputation. For example, while the justice system can force the defendant to take down the explicit materials through a legal process, it may prove hard and expensive, forcing everyone else in the internet world to take down the images. Even after expensively paying for issuance of copyright takedown requests, victims cannot be completely confident that their explicit photos are no longer on the internet. There is always the likelihood of the images resurfacing months or even years later.

The potential long-term negative consequences of revenge porn have forced many states, including California, to prosecute any individual accused of revenge porn aggressively. In Los Angeles and the rest of California, authorities treat non-consensual pornography as a serious crime.

The Legal Definition of Revenge Porn

Revenge porn or non-consensual pornography is under California Penal Code Section 647 (J) (4) with the California law defining it as follows;

  "any person a) intentionally distributes the image of the intimate body part of another identifiable person, or an image depicted them engaged in sexual intercourse, sodomy, oral copulation, sexual penetration, or masturbation by the person in which the person depicted participates,

b) in circumstances where they agree or understand the image will remain private, the person then distributes the image and knows the distribution of the image will cause serious emotional distress, is guilty of revenge porn."

According to the law, any person who commits the outlined acts is guilty of a misdemeanor. There is no legal requirement that the actions have to be revenge based or done with the sole purpose of getting even as long as the defendant intended to embarrass or cause emotional distress to the victim. The technical words non-consensual pornography mostly applies in instances where there is confusion about the word 'revenge' concerning the misdemeanor crime.

 While the jurisdiction of the law was initially limited to images taken by another person, the state has since expanded it to include pictures the victim had taken of him/herself or selfies. Although different in some aspects, the revenge porn law shares similar criminal elements with the invasion of privacy law. The significant difference is that invasion of privacy involves someone secretly recording sexually explicit images or videos of another person without their knowledge or consent.

 According to California PC 647(J) (4), there are some circumstances where, despite a person's actions or behavior meeting the legal definition of revenge porn, they are not guilty of the crime. The conditions include where a person is:

  • In the course reporting an unlawful activity. For example, a rape victim may manage to photograph their rapist during incidence and later use the images, including those of the rapist's intimate body parts, while reporting the rape. In this case, the rape victim is not guilty of non-consensual pornography as he/she is in the course of reporting an unlawful activity.
  • In the course of a public legal proceeding
  • In the course of adhering to a court order to use the explicit images in a legal proceeding

 What the Prosecutor Needs to Prove

The close relation between revenge porn and invasion of privacy means that in addition to the criminal charges, the court may also require the defendant to pay damages in a civil case. In addition to allowing victims to claim compensation, civil cases require a low burden of proof from the prosecutors compared to criminal cases. While some elements of the criminal case are applicable in the civil case, for a successful criminal conviction, the prosecutor needs to prove that:

 

  1. The defendant posted or shared material that exposes an intimate body part of the victim or shows them engaging in a sexual act. Sexual acts include oral sex, sexual intercourse, masturbation, sodomy, and any other form of sexual penetration. According to PC 647 (J) (4), intimate body parts, including genitals, anus, and in the case of females, any parts of the breast. To be considered a misdemeanor, the intimate body parts in the images or videos must be uncovered or visible through clothing.
  2. The defendant knew or should have known that the other person reasonably expected the distributed material to remain private.
  3. The defendant also knew or should have known that disclosure of such material would cause harm to the other person. The prosecutor must also prove that the victim suffered emotional distress as a result of the images or videos.

 Concerning the distribution element, the law defines distribution as any acts that aid in the publication of sexually explicit images. The actions may include personally publishing the image or arranging for their release and distribution by third parties.

 Other related elements of the crime that the prosecutor needs to prove for successful prosecution include the fact that you intentionally distributed the sexually explicit images or videos. The court has to prove there was a mutual understanding between both parties that the photos or videos would remain private.

 According to the listed elements of the crime, distributing non-sexual images of an ex-lover even without their consent does not constitute to revenge porn. For example, an estranged boyfriend may post an unflattering photo of her ex-girlfriend to get back at her for dumping him. However, as long as the image does not expose an intimate body part of the ex-girlfriend or show her engaging in a sexual act, the estranged boyfriend cannot be accused of revenge porn.

California’s Revenge Porn Penalties

Under the California laws, revenge porn is a misdemeanor offense. The penalties for a first-time offender include:

  • Up to six months in an LA county jail,
  • A fine of up to $1000 or both
  • A misdemeanor probation

Second-time revenge porn offenders face increased penalties of up to one year in county jail, a fine of up to $2000, or both. The court may also charge a defendant under the state child pornography laws in case the victim was underage. If the victim is your spouse, you may also incur additional penalties under California’s domestic violence laws.

In addition to revenge porn penalties, the offender has to deal with a criminal record if convicted. A criminal record has the potential of complicating your life, including making it hard for you to get jobs or engage in routine business transactions such as buying a house. Additionally, revenge porn convictions complicate an offender's current and future intimate relationships. Essentially, a revenge porn conviction has various indirect collateral consequences or penalties. A revenge porn offender may also be required to pay damages to the victim in a civil case.

Common Legal Defenses

California’s classification of revenge porn as a serious crime means that the state aggressively prosecutes it. Therefore, you need a skilled and experienced criminal defense attorney to defend you and minimize the collateral consequences of your potential conviction. Some of the common legal defenses that expert lawyers use to defend revenge porn defendants include:

  • The distribution of the images or videos was not intentional. To be convicted under California’s PC Section 647 (J) (4), the prosecution must prove that the defendant intentionally distributed the sexually explicit photos or videos of the victim. A skilled attorney can successfully argue that you had no intention of spreading or sharing the images with third parties. For example, you have a valid defense if your attorney can prove that you had wrongly attached the images while sending an email or posting on social media. In this case, you meant to post another photo but accidentally attached the sexually explicit ones. Similarly, as a legal defense, the attorney can argue that another person posted the images using your name or online credentials. In this case, the attorney needs to prove that the alleged hacking of the defendant's computer/device or online account.
  • Unidentifiable victim. To be convicted of revenge porn, the prosecution needs to prove that the person depicted in the materials you distributed is identifiable. If the identity of the person in the image is in question, then your attorney has a valid defense for your case. Casting doubt on the identity of the victim in the distributed materials is one of the most common forms of legal arguments in a porn revenge case. However, it is essential to note that the face is not the only identifying feature; the court may consider other identifying features including tattoos, clothing items, and other identifiable items in the background of the distributed materials.
  • The victim had consented to the distribution of the materials. One of the elements of the crime of revenge porn is that the defendant should have been reasonably aware that the victim expected the sexually explicit material to remain private. That is, he/she did not wish third parties or the public to access sexually explicit materials. However, a skilled lawyer can argue there was no mutual understanding concerning the distribution of the materials, or the victim had previously consented to such a distribution. As a defense, the attorney exploits the fact that the victim may have been initially non-committal about what happens to sexually explicit materials.
  • The image did not cause emotional distress. In addition to the intention of causing emotional pain to the victim, the prosecution must also prove that the defendant's actions resulted in actual emotional distress to the victim. Since there is no physical evidence of emotional distress, revenge porn prosecutors struggle to show this element of revenge porn. The fact that this is a difficult element for the prosecution prove makes it a common legal defense. Your attorney should be able to argue that in addition to not explicitly intending to cause emotional distress, your actions did not cause any emotional harm to the victim. Essentially, the attorney casts doubt as the reported levels or seriousness of the victim’s emotional distress.
  • Concerning the absence of emotional distress, you may argue that you reasonably believed that your actions were harmless. However, the success of this defense largely depends on the circumstances of your relationship with the victim. Your attorney needs to prove that you have a positive relationship with the victim and did not intend or had no reason to cause him/her any form of emotional distress.

Contact a Los Angeles Criminal Defense Attorney Near Me

In addition to being a new phenomenon to many Los Angeles residents, revenge porn or non-consensual pornography as a crime also has an accompanying complex legal process. Violating California’s revenge porn laws not only comes with harsh penalties but also comes with collateral consequences, including making it hard for you to find employment. To successfully navigate the legal process and minimize or eliminate the penalties and consequences related to the crime, you require the services of an experienced and skilled criminal defense attorney. If you are dealing with revenge porn accusations, our experienced and knowledgeable criminal defense attorneys at the Los Angeles Criminal Attorney will protect your rights and obtain the best possible outcome for you. To learn more about our services, contact us at 424-333-0943.