When your romantic relationship crumbles, it could leave you feeling angry and hurt and make you do things that could cost you later. One of the things that people do for revenge is sharing intimate videos or photos of their ex-partners. According to California law, it is a crime to share private pictures or videos of another person without the person's consent. Sharing a revenge porn post on social media or sending it to your friends could land you in jail. The California PC 647(j)(4) outlines the crime of revenge porn. After an accusation of revenge porn, you should seek immediate legal counsel. The Los Angeles Criminal Defense Attorney can advise you on the best legal action and defense.
Revenge Porn Explained
Although used frequently, the term revenge porn is somehow misleading. The majority of perpetrators of revenge porn do not have the motivation of revenge or negative feelings towards the victim. The crime of revenge porn is more of nonconsensual pornography, which involves distributing sexually graphic photos or images of persons without their consent.
In some instances, the defendant could have obtained the images without the consent of the victim. For example, a defendant could get pictures through hidden cameras, recording sexual assaults, or hacking phones. However, in most cases, the defendant acquires the images with the consent of the victim because the victim believes that the photos will remain private.
The crime of revenge porn involves revealing sexual images of unwilling persons to strangers. The defendant could be a vengeful ex-lover or any other opportunistic individual. Uploading another person's sexual image on a platform where other people can see it or share it with other websites is a crime.
Images shared in revenge porn instances could dominate pages in the search engines and cause intense emotional distress on the victim. The images could also be emailed to the victim’s family, peers, employers, or co-workers.
The California PC 647(j)(4) refers to a situation where a victim, usually the defendant's intimate partner, agrees to the recording of his/her sexual images or videos. While consenting to the recordings, the victim believes that the pictures or videos will be private. However, the defendant distributes the victim's photos on the internet or other platform without the consent of the victim.
You could be guilty of revenge porn if you share naked photos of your intimate partner on the internet after a breakup. Similar charges would apply if you record a person having sexual intercourse and then upload the video on an internet sex or porn site without the person's consent. If you take upskirt photos of a woman and post them on social media, you could be guilty of revenge porn. The charges will apply even if the victim had allowed you to take the photos as long as she did not allow you to post the pictures on the internet.
For the prosecutor to accuse you of the crime of revenge porn, the prosecutor must prove some aspects of the crime:
- It should be evident that you had an image of an intimate body part of another individual or a picture of another person engaging in sexual intercourse.
- You purposely distributed the image on the internet or other platform.
- There was an agreement between you and the victim that the image would remain private.
- At the time of distributing the image, you knew, or you should have known that the distribution of the image would cause the other person emotional distress.
- The victim suffered emotional pain due to the distribution of the image.
Despite the name revenge porn, the law does not require the victim to have committed the crime with the intent to get revenge for the charges to apply. The law only requires the defendant to have the intention to cause emotional harm to the victim.
Distribution of Explicit Images
Which actions qualify as the distribution of sexually explicit images according to California law? You could be guilty of distributing intimate images if you engage in any conduct that could aid in the publication of the sensitive images. For instance, you could spread the image personally or request another person to distribute the photos for you. The law makes it a crime to arrange, request, or intentionally cause another person to spread intimate images on your behalf.
Most people often question the legal meaning of an intimate body part of an identifiable individual and the intentional distribution. In some instances, you might not be guilty of revenge porn even if you distribute intimate images of another person as outlined under PC 647j4:
- You will not be guilty of revenge porn if you distribute intimate images while reporting an unlawful activity.
- If you are complying with a court or subpoena order while distributing the images, you will not be guilty of revenge porn.
- If you distribute intimate images while engaging in a legal proceeding, you will not be guilty of revenge porn.
However, it is essential to note that even in the above circumstances, you should not share intimate images with the public. You should only share the pictures with the police or the court to avoid violating California revenge porn laws.
Intimate Body Part
According to the law, intimate parts include the genitals or the anus of another person. For women, the intimate parts include the woman's breasts below the top of the areola. The images could depict a person's uncovered body parts; the body parts could also be visible through the clothing.
You should not share images of an identifiable person engaging in sexual behavior. Sexual behavior includes intercourse, sodomy, masturbation, oral sex, or any other act of sexual penetration. A victim is an identifiable person if there is a likelihood that another person might identify the victim.
Fake Sex Videos and Assembly Bill 602
Assembly Bill 602 is a new addition to the California legislation. The approval of this bill would make it a crime to distribute fake sex videos of another person. The victim of fake sex videos would have a chance to sue the person who created or shared fake sex videos. The person portrayed in the phony video would have a right to sue if he/she did not consent to the distribution of the video. If the person did not agree to the release of the video, he/she would have a right to sue. Fake sex videos mainly target celebrities. A defendant could graft the face of a celebrity into a pornographic video even if the celebrity did not participate in the video. You would be guilty under California law for creating fake sex videos or images.
The Harm of Revenge Porn
California law punishes the crime of revenge porn mainly because of the harm it causes to the victim. Sharing another person’s sexual images could destroy the person’s intimate relationships and their education and employment opportunities. The victims whose images appear on the internet are often victims of harassment, assault, and stalking. The emotional distress experienced by the victims could make them resign from employment or change schools. In some extreme cases, victims of revenge porn might end up committing suicide.
The crime of revenge porn is a form of domestic violence. The defendant could threaten to share the explicit pictures of a victim to prevent the victim from exiting the domestic relationship. The defendant could also threaten to share the photos to prevent the victim from obtaining custody of a child or reporting abuse.
In some instances, opportunists like sex traffickers could use revenge porn as a tool to trap unwilling persons into the sex trade. In some cases, sex abusers could record sexual images of their victims and share the photos to humiliate the victim further or to discourage the victim from reporting the crime.
The crime of revenge porn has more female victims than male; however, the victim could be either male or female. Female victims tend to face more severe consequences because of victimization than male victims. Just like other domestic violence crimes, the crime of revenge porn affects more women and girls than men. The crime undermines gender equality.
The crime of revenge porn is common in the U.S. A nationwide study conducted in 2017 revealed that 1 in every eight social media users in the United States had been a target of revenge porn. According to the study, women are 1.7 times more likely than men to be targets of revenge porn.
Consequences for Revenge Porn
According to California law, the crime of revenge porn is a misdemeanor. The consequences for the offense include jail time of six months in a county jail in California. The court might require you to pay a penalty of $1,000.
If the victim of revenge porn is a minor, the penalties will increase to jail time of one year in county jail and a fine of not more than $2,000. The enhanced penalties will also apply if you have one or more convictions of revenge porn. In some instances, you could be guilty of felony possession of child pornography.
You might face additional charges under the California PC 653.2 for using an electronic device to harass a victim. The penalties for this offense include a fine not exceeding $1,000 and jail time not exceeding one year in county jail.
If you use another person's device to share explicit sex images without the device owner's consent, you will be guilty of a felony. The California PC 502 outlines the crime of unauthorized use of an electronic device. The crime of sharing explicit images on another person's device could attract a penalty of three years in state prison and a penalty not exceeding $10,000. For this offense, the device owner could file a civil lawsuit against you. Therefore, in addition to facing hefty criminal charges, you could also incur a massive financial fine.
The crime of revenge porn will not have negative immigration consequences. Some offenses under California law could result in deportation or being inadmissible into the United States. However, the crime of revenge porn is not such a crime. It is not a crime involving moral turpitude and will, therefore, not have any negative immigration consequences.
The crime of revenge porn will also not affect your gun rights under California law. The crimes that result in the loss of gun rights under California law include violent felonies. However, the crime of revenge porn is not a violent felony.
Expungement of the Conviction
Even after a conviction of revenge porn, you could apply for an expungement of the conviction from your criminal record. According to California, law PC 1203.4, an expungement of a conviction helps to relieve the victim from the hardships associated with the sentence. It is important to note that you will only qualify for an expungement after you complete the probation successfully. You could also apply for an expungement of a conviction after successful completion of jail time.
After an expungement of revenge porn conviction, the conviction will no longer be available on public domains and will not show up even if a person runs a background check on you. For instance, when you are seeking employment, the potential employer might run a background check on you. If the past conviction for revenge porn shows up in the results, the prospective employer might be hesitant to hire you. However, after you apply for an expungement of a criminal record, you will no longer have to worry about the conviction showing up on your background check.
A conviction could also be beneficial when applying for licensing or when seeking tenancy in California. Without a negative criminal record, it will be easy for you to secure tenancy and to get professional licensing.
Common Legal Defenses for Revenge Porn in California
If the prosecutor accuses you of revenge porn, you do not have to accept the allegations against you. You should contact an experienced criminal defense attorney to help you come up with a valid legal defense. Some of the applicable legal defenses for the crime include:
You Did Not Distribute the Image Intentionally
For revenge porn charges to apply, the prosecutor should prove that you distributed the explicit images on purpose or intentionally. Therefore, if the distribution of the pictures was not intentional, you can fight the charges in court. With the help of your attorney, you can assert that even if you distributed the photos, you did not do it on purpose. For instance, you could have uploaded the image on social media by mistake, and then you took the image down. However, you will need an aggressive attorney to prove a lack of intent.
You Did Not Intend to Cause Emotional Distress on the victim.
The law states that for you to be guilty of revenge porn, you should have known that the distribution of the image would cause emotional distress on the victim. Therefore, you could fight the charges by pointing out that you did not know that sharing of the photos would hurt the victim. This defense might apply if you posted the images as a prank, thinking that the other person would find the prank funny.
Victim’s Consent
You can't be guilty of revenge porn if you had the consent of the victim to post explicit sexual images on the internet. You are only liable if you posted the pictures against the victim's will or without the victim's knowledge. In some instances, the victim might never have stated that the images should remain private. This is an essential consideration in revenge porn lawsuits. If there is no proof that the victim thought that his/her intimate images would remain private, the defendant might be able to prove that he/she had the victim's consent.
The Person in the Images is not Identifiable
California law states that it is a crime to share explicit images of an identifiable person. Therefore, if you share explicit images, but the person in the images is not recognizable, you are not guilty of revenge porn. For instance, you might have cropped the image before sharing and removed identifiable features like the face of the victim. However, it is essential to note that a victim's face is not the only recognizable feature. It is possible to identify a person using other unique features like a birthmark or a tattoo. In some instances, a person could be identifiable based on other items found in the background of the images. Therefore, it might be hard to convince the prosecutor or the judge about your innocence using this defense.
The Victim Did Not Suffer Emotional Distress
One element of the crime of revenge porn is that the victim should have suffered emotional distress due to the sharing of his/her explicit images. It is hard for the prosecutor to prove that the victim suffered emotional distress. Only the victim can confess or assert that he/she suffered emotional distress due to your actions. If the victim does not acknowledge or show any signs of experiencing emotional pain even after you shared the images, you could base your defense on this fact. However, it might be hard to convince the court that the victim did not suffer emotional distress.
Related Offenses
Three crimes under California law are almost similar to the crime of revenge porn. The prosecutor might accuse you of the related offenses alongside the crime of revenge porn or instead of revenge porn. Some of the related crimes are:
PC 647(i) - Peaking While Loitering
According to California Penal Code 647 (i) and (j), it is a criminal offense to spy on a person or to take a picture of a person in a private place without the person's consent. According to the peeking, while loitering law, you should not open the window of an inhabited structure while loitering on inhabited private property.
For instance, you could face charges under PC 647(i) if you open the window of your neighbor's bedroom window, and you look and see your neighbors making love. To be guilty of this crime, the prosecutor should prove that you were delaying, wandering, or loitering on another person's private property. It should be evident that you had no purpose of being around the person's private property. The prosecutor should also prove that while at the property, you peeked through the door or window of the structure.
The law considers a property to be inhabited as long as another person is using the property or the structure as a dwelling. You could still be guilty of this crime even if no one is inside the property at the time of the peeking.
PC 647(j) - Criminal Invasion of Privacy
According to California, law PC 647(j), it is a crime to invade another person's property and use a device to look through an opening or a hole. It is also a crime to use a concealed camera to look beneath another person's clothing. You could be guilty under PC 647(j) if you use a hidden camera to view another person's private body in a private room. You could be liable under PC 647(j) even if you did not show or distribute the images acquired through a criminal invasion of property.
The crime of criminal invasion of privacy is a misdemeanor. The penalties for the crime include jail time in a county jail in California. The court could also impose a fine that does not exceed $1,000. The judge could also recommend summary probation instead of jail time.
You can fight charges under this statute by pointing out that you did not intend to violate another person’s privacy. You could also point out that there was no reasonable expectation of privacy. You can also assert that you had the victim’s consent.
18 U.S. Code 1801 - Federal Video Voyeurism Law
According to this federal law, it is a criminal offense for a person to capture the image of another person's private part. For charges to apply, the defendant should have captured the images without the consent of the victim. You can only be guilty if you captured the images when the victim was in a place that has a reasonable expectation of privacy. According to this law, it is illegal to capture images even if you do not intend to distribute or share the pictures.
Find a Criminal Defense Attorney Near Me
Do not give up or accept fault when the prosecutor accuses you of revenge porn. The Los Angeles Criminal Defense Attorney can assist; we will evaluate your case and advise you on the way forward. We will help you come up with convincing legal defenses to help you fight the charges. Contact us at 310-564-2605 and speak to one of our attorneys.
