With the advent of recording devices, smartphones, and social networking sites, it is now easier than ever for intimate pictures or videos of another person to end up in unintended or wrong hands. However, most people do not know that sharing or distributing photographs or videos of another without their consent or permission could land you in jail.
Also known as cyber exploitation, revenge porn is a criminal offense that often arises in connection with domestic violence cases. If you are under investigation or arrest for allegedly distributing revenge porn, our credible attorneys at Los Angeles Criminal Attorney can help you challenge the allegations for the best possible outcome.
Hiring an attorney can make the difference between incarceration and obtaining your deserved freedom if you are in trouble with the law. Read on to learn about the crime of revenge porn and applicable defenses our attorneys could use to challenge the alleged charge to obtain the best favorable judgment possible.
Revenge Porn Definition Under Penal Code (PC) 647(j)(4)
Penal Code (PC) 647(j)(4) is the statute that makes it illegal to distribute revenge porn. Specifically, this statute makes it a misdemeanor offense to intentionally post, share or distribute sexually explicit videos or pictures of another person online without his/her consent, causing the latter to suffer emotional distress.
If the image or videos you allegedly shared contains multiple people, it will not matter if you had permission from one of the people to post the image. As long as the one individual in these pictures or videos did not give permission or consent, you could be guilty of the crime of revenge porn under PC 647(j)(4). Below are examples of acts that could attract a criminal charge under PC 647(j)(4):
- Recording another person while he/she is in a sexual act and then you upload the video on an internet pornography website
- Capturing naked videos or pictures of an intimate partner, and then after an ugly breakup, you decide to post these images and videos on Facebook
- Consensually taking upskirt videos or photos of a woman, and then you decide to post them on online dating sites or social media
Although disgruntled ex-lovers are the most frequent and common culprits in revenge porn cases, strangers can also commit this offense.
Five Primary Elements of PC 647(j)(4) Violation Offense
According to PC 647(j)(4), the prosecutor must prove the following five elements or facts to convict you for the alleged revenge porn offense:
- You had a sexually explicit or intimate image or video of an identifiable person
- You intentionally distributed, shared, or posted that intimate video or image
- You and the person depicted “victim” had an agreement that this intimate image or video would remain private
- You were aware or reasonably should have known that the distribution or posting of this nude image would cause the person depicted to suffer emotional distress
- The depicted person suffered or experienced emotional distress
If the prosecutor presiding over your case cannot prove these elements or facts beyond a reasonable using clear evidence, you will not be guilty of PC 647(j)(4) violation.
Understanding Critical Terms Used in the Above Elements of Revenge Porn Offense Under PC 647(j)(4)
Undoubtedly, the scope of particular legal terms used in the legal definition of revenge porn can confuse most people. Below is a brief definition of unique terms that apply to the crime of revenge porn under PC 647(j)(4):
- Intimate Body Parts of an Identifiable Person
For the sake of PC 647(j)(4), an intimate body part could be a portion of any of the following body parts:
- Anus
- The genitals
- Any portion or part of the female breast below the top of her areola
On the other hand, the term “identifiable person” means it is likely possible that another person can identify the victim or the person depicted in the intimate image. Typically, the court will consider the accuser “identifiable” if his/her face is in the picture or videos shared online. Birthmarks, tattoos, and items in the background of the shared picture or videos could also help identify a person.
- Intentional Distribution
Another term that will often raise questions in the legal definition of revenge porn crime is “intentional distribution.” To be guilty of PC 647(j)(4) violation, the prosecutor must prove that you intentionally distributed, shared, or posted the image. According to this statute, a person distributes an image or video intentionally when:
- He/she does so personally
- Causes or makes another individual share or distribute it
That means if you did send the alleged sexually explicit or intimate pictures to someone, but you did so accidentally, you cannot be guilty of the alleged revenge porn crime under PC 647(j)(4).
- A Sexual Act
For the sake of criminal prosecution for the alleged revenge porn charge, the court will consider any of the following as a “sexual act”:
- Sodomy
- Sexual intercourse
- An image or video of masturbation
Instances When Distributing Intimate Image of Another is Not a Crime Under PC 647(j)(4)
Under certain circumstances, sharing sexually explicit or intimate images or videos of another person could be lawful. According to PC 647(j)(4), posting or distributing a sexually explicit image of another person is not unlawful if you are:
- Reporting an illegal activity
- Abiding by a subpoena or any other court order
- Participating in a lawful proceeding
The prosecutor cannot obtain a conviction against you for the alleged PC 647(j)(4) violation charge if the above-listed facts are true. While sharing intimate images of another person with the public is illegal, sharing these images with the court or police will not make you guilty of the crime of revenge porn under PC 647(j)(4).
Penalties for a Conviction for PC 647(j)(4) Violation
The crime of revenge porn under PC 647(j)(4) is typically chargeable and punishable as a misdemeanor. The potential penalties you could face for a first-time conviction for a PC 647(j)(4) violation include the following:
- Not more than six (6) months of custody in the county jail
- A fine not exceeding $1,000
- Misdemeanor probation
However, if you are a repeat offender or the depicted person was a minor (under 18), a conviction for the offense of revenge porn will carry the following potential penalties:
- A fine not exceeding $2,000
- Up to one (1) year in jail
If the depicted person was a minor, the prosecutor could also file felony child pornography charges against you, which will attract harsher penalties upon conviction. Also, in addition to the criminal charges for PC 647(j)(4) violation, the depicted individual could file a civil lawsuit against you to recover compensatory damages.
That means you could face a hefty and burdensome civil financial payout on top of the above-listed standard penalties for the PC 647(j)(4) violation conviction.
Other Potential Negative Consequences of a Conviction for PC 647(j)(4) Violation
A conviction for PC 647(j)(4) violation will also attract other detrimental consequences even after serving your jail term. In addition to the lengthy jail time, a conviction for the crime of revenge porn will become part of your criminal background or record, meaning the public could access information about your criminal conviction.
A criminal record will carry collateral detrimental consequences that could make it challenging to live everyday life. Some of these consequences include the following:
- Difficulty finding a reliable employment
- Revocation of your business or professional licenses, especially if you are a healthcare provider or educator
- Adverse decisions or judgments on child custody issues
- Difficulties buying or renting an apartment
Generally speaking, a criminal background is a social barrier that lessens the quality of your life because these repercussions can last for years. It could even be more detrimental to disclose a conviction or criminal record for an offense that most people could associate with sex crimes.
For that reason, you can never overlook the need to have an attorney if you are in custody or under investigation for an alleged PC 647(j)(4) violation charge. In addition to being your legal advisor, your defense attorney could help you challenge the alleged revenge porn charge to convince the court to reduce or dismiss the entire case.
Conditions of a Misdemeanor Probation for PC 647(j)(4) Violation Charge Conviction
Instead of a jail term, the court could find it reasonable to sentence you to a misdemeanor or informal probation for not more than (3) years. However, this probation period will come with specific conditions that you must comply with, including:
- Participate in community services
- Enroll in a counseling session or program
- Pay the required fine and any necessary court costs
- Obey all laws, meaning you should not commit any crime while on probation
- Comply with a restraining order, meaning you should stay away from the person depicted in the sexually explicit videos or images
- Pay restitution to the victim in the sexually explicit images
- Enroll in a treatment program, for example, an anger management session
When you fail to abide by the court-set probation conditions, the judge could consider that an informal probation violation unless your attorney can provide proper convincing evidence to show him/her otherwise. However, if the court finds you guilty of a probation violation, the judge could decide to:
- Give you a stern warning and reinstate your probation
- Modify or adjust your probation’s terms and conditions
- Revoke your misdemeanor probation and send you to jail for the maximum period required for your charge’s conviction
Generally speaking, the purpose of misdemeanor probation in the criminal justice system is to rehabilitate a convicted defendant to make him/her a law-abiding citizen and protect the public. While this misdemeanor probation is often available for first-time offenders, a skilled attorney could convince the court to sentence you to probation even if you are a repeat offender.
Having a skilled and aggressive attorney in your corner can increase your odds of qualifying for misdemeanor probation instead of serving your sentence behind bars.
Common Valid Defenses to PC 647(j)(4) Violation Charges
The following are some of the applicable legal defenses a skilled and experienced attorney could raise to fight or challenge the revenge porn allegations you are up against for a favorable outcome:
You Had Consent to Distribute the Image
As mentioned earlier, you are only guilty of a PC 647(j)(4) violation if you had a mutual agreement that the alleged sexually explicit images would remain private. Hence, a skilled attorney could raise a reasonable argument that you had consent from the victim in the alleged image to share or distribute his/her intimate photos online to obtain the best possible outcome.
However, it is worth noting that having consent to take a sexually explicit image of a person does not mean you have permission to share it online.
You Did Not Have the Intent to Distribute the Images
If the distribution of the sexually explicit images of the depicted individual was accidental, the court could consider this a viable defense to the alleged PC 647(j)(4) violation charge. Furthermore, if another person accessed and distributed these images without your knowledge, you are not guilty of the alleged revenge porn charge.
The Alleged Victim or Individual Depicted in the Images is Unidentifiable
For a conviction for PC 647(j)(4) violation, you must be able to identify the person depicted in the alleged sexually explicit images or videos. Therefore, if the person is unidentifiable, your attorney can use this as a legal defense to challenge the alleged revenge porn charges for a favorable outcome.
The Individual Depicted in the Image or Videos Did Not Suffer Emotional Distress
A reliable attorney could argue in court that you did not have the intent to cause emotional distress to the person depicted in the images or videos in question for a favorable outcome. Alternatively, your attorney can argue that the victim in the alleged photos or videos did not experience any emotional distress because he/she was aware it was a prank to support this defense argument.
As you can see above, challenging the main elements of crime in the revenge porn charge is the key to securing a favorable outcome in the alleged case. If your defense attorney’s argument can raise doubt about the prosecutor’s case against you, the court could drop or reduce the alleged revenge porn charge to a lighter charge.
A seasoned and skilled defense attorney will keenly review the alleged charge’s particulars and facts to create persuasive defense arguments that could apply to your unique case for the best possible results.
Advantages of Having an Attorney in Your Corner Upon an Arrest for an Alleged Revenge Porn Charge
Undoubtedly, hiring an attorney is one of the most critical and helpful steps after an arrest for any alleged offense. Below are some of the advantages of hiring a defense attorney upon an arrest on suspicion that you are a culprit in an alleged PC 647(j)(4) violation case:
- Your attorney can help you request a jail release on bail, pending the outcome of the alleged revenge porn case
- Unlike a public defender, a private defense attorney will dedicate maximum time to your case for the best possible outcome
- Your attorney will be your legal counsel during every stage of the prosecution process
- Your attorney can apply his/her knowledge and experience of the law to your favor to achieve a favorable outcome
- An attorney can help you investigate the alleged case to prepare bulletproof defenses that are unique to your case
- Your defense attorney could negotiate with the prosecutor on your behalf to have the alleged case dropped or reduced before trial
As you can see above, there are several benefits of retaining the services of a defense attorney if you are under investigation or arrest for an alleged PC 647(j)(4) violation charge.
Due to several options available, finding a reliable attorney for your unique case could be time-consuming, especially if it is your first time needing one. To make your search for a dependable defense attorney hassle-free, you could want to consider your prospective attorney’s:
- Experience
- Qualification and area of specialty
- Schedule and availability
- Reputation and accreditations, if any
- Licensing credentials
- Courteousness and friendliness
- Communication skills
- Cost of services
The above-listed factors can significantly reduce your options to find a credible and reliable attorney without unnecessary time wastage during these challenging and confusing times.
Crimes Related to Revenge Porn Offense Under PC 647(j)(4)
Often, a criminal charge for a PC 647(j)(4) violation will attract other related offenses that the prosecutor could pursue against you in addition to or instead of the alleged underlying charge. Some of these crimes include:
Peeking While Loitering
PC 647(i) is the statute that defines the crime of peeking while loitering. According to this statute, it is a misdemeanor offense to peek into an inhabited structure or home while wandering or loitering.
Also commonly known as "unlawful peeking," peeking while loitering is a misdemeanor offense punishable by six (6) months of jail time and a fine not exceeding $1,000. For the sake of PC 647(i), a building is "inhabited" if someone lives in it, regardless of whether he or she was present at the time of the alleged unlawful peeking.
Luckily, with a reliable attorney in your corner, you could challenge these allegations using the following viable defenses for a favorable outcome:
- You were not loitering
- You were not on private property
- You were looking or peeking into what was uninhabited
Criminal Invasion of Privacy
According to PC 647(j), it is a misdemeanor offense for any person to invade someone’s privacy in any of these three ways:
- Using a concealed or hidden camera to look through or under the person’s clothing
- Using a gadget or device to peek the person through an opening or hole
- Using a concealed camera to view the person’s body or nakedness in a private apartment
It is important to note that, in all the above situations, you can only be guilty of PC 647j violation if the prosecutor can prove that:
- You did record or peek into another person
- The person in question or “victim” had a reasonable expectation that he/she has the deserved privacy
Below are some of the acts that can attract criminal invasion of privacy charges under PC 647j:
- Secretly recording or photographing someone’s else body under clothing for sexual gratification or arousal
- Using a gadget like binoculars to closely view another person inside his/her home or private room
- Secretly photographing another person in his/her private apartment or home to view his/her body or nakedness
Upon conviction at trial, you should expect the following penalties:
- Up to $1,000 fine
- Not more than six (6) months of jail time
Expungement of a PC 647(j)(4) Violation Conviction
As mentioned in the previous section, a conviction for a PC 647(j)(4) violation charge will attract other detrimental consequences like a criminal record, which can negatively impact your life’s quality. Fortunately, you could qualify for an expungement to obtain a fresh start in your life.
According to PC 1203.4, an expungement will eliminate most of the negative consequences of having a criminal conviction because it will make your criminal record invisible to the public. That means a potential employer cannot disqualify you during a job interview due to your conviction record for PC 647(j)(4) violation once you obtain an expungement.
To be eligible for this post-conviction relief option, you must complete your jail term or probation successfully (whichever is applicable in your case).
Find a Defense Attorney Near Me
We at Los Angeles Criminal Attorney are here for you if you are under investigation or arrest for an alleged PC 647(j)(4) violation charge. While it is not a felony, a conviction for the crime of revenge porn under PC 647(j)(4) could ruin your reputation and negatively impact your quality of life.
We invite you to call us at 424-333-0943 for an obligation-free consultation with our credible defense attorneys. We will be there when you call, regardless of the time, to provide you with the best legal representation possible for a favorable outcome on the alleged revenge porn charge.
