“Revenge Porn.” It sounds like a bad movie but instead it is in fact some people’s worst nightmare and the law is working to catch up with technology used to damage others. This is a new law on the books in California intended to punish those that take intimate photos or recordings of another person and then distributes the intimate picture or recording, most often seen done via the Internet.
The new law is a misdemeanor and is set forth in California Penal Code 647(j)(4), which states:
“Any person who photographs or records by any means the image of the intimate body part or parts of another identifiable person, under circumstances where the parties agree or understand that the image shall remain private, and the person subsequently distributes the image taken, with the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.”
Is the Revenge Porn Law Like Swiss Cheese?
On its face this sounds good; but, upon closer examination there are many loopholes in the statute, such as it excludes: “selfies”(the law requires someone else to have recorded the image); redistributors (the laws only applies to the person who took the photograph or recording, not others who may then redistribute the image, as often done by websites); and hackers (those who obtain these images through hacking a computer). The new law also creates disputes about agreements about privacy, and measuring sufficient intent to cause serious emotional distress. A wonderful discussion about the statute itself can be found in Eric Goldman’s article written for Forbes.
Go to Family Law Court
The discussion above highlights the criminal aspect of “revenge porn.” What about in family law? Family court is a civil court, so does this new statute, which is intended to stop revenge porn, impact a request for restraining orders in family court? Last week a judge told me “yes”; but in reality, the California Domestic Violence Prevention Act has probably always provided protection, it’s just that “revenge porn” was not in the lexicon. The reason I state “revenge porn” probably has always been protected against in family law is because the act of distributing these private images probably constitutes harassment and in California engaging in harassing activities can subject a person to restraining orders. By viewing this behavior as harassment, we potentially avoid having to address the loopholes left by the criminal statute; and we avoid seeking redress through a very difficult criminal system. In other words, even if someone took a “selfie” and then an angry ex gains possession of the “selfie”, posts the “selfie” on line or distributes it via email, this could constitute harassment. Therefore, in this example, while there may be no crime (because a “selfie” is excluded under the new criminal statute because it is not taken by another person), the victim of such public exposure may still find protection in the family courts. As for those situations where another person takes the photograph or recording and distributes such images, while that may be a crime if all of the elements of the statute are met, may also be restrained under the family law statutes.
New Awareness
Though the criminal statute’s exceptions may consume the general law thereby making its bark worse than its bite, a lot of good is done by the heightened awareness of the concern about “revenge porn”. This may lead the family courts to have heightened awareness about the distribution of indecent exposures and the fear and damage which may result from an angry ex spouse, boyfriend or girlfriend who takes what was a private moment and makes it public out of pure revenge.