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
S T A T E O F N E W Y O R K
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,
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 ASSEM-
BLY, 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,
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
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
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
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.
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.
non-consensual disclosure of sexually explicit images,
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