Let’s Make a New Law!

Any moderately well-informed person these days is aware of the shocking injustices that happen whenever criminal laws get written by people who don’t really understand what criminal law is, or how it works. (Brilliant summary here.) They tend to create crimes that are ill-defined, overbroad, and usually an overreaction to the perceived harm. The results can be pretty bad.

How much more cause for concern, then, when the proposed crime violates not only the fundamental principles of criminal jurisprudence, but cherished individual rights that have nothing to do with crime?

And how much more cause for concern, then, when those who catch potential problems are not engaged in thoughtful debate, but are instead shouted down and accused of malicious and reprehensible conduct?

It looks like that’s what’s been going on recently in an ongoing debate over proposed “Revenge Porn” legislation that’s floating around out there. At first the shenanigans were amusing to watch, but lately it’s turned into a distressing train wreck online. A law has been proposed in reaction to something with a lot of emotional pull, thoughtful people have voiced concerns that it may be a bad law, and its proponents have responded less with reasoned debate than with emotional backlash. Those who disagree are shouted down as stalkers and assholes; their comments are deleted so that others may not see them.

Ignoring whether either side is right or wrong, what a terrible blow this has been to the credibility of the law’s proponents. Think how insecure they must be in their own assertions to react so defensively. How much confidence can than inspire in the rest of us?

-=-=-=-=-

“Revenge Porn” is pretty much what it sounds like. You’re in a relationship with someone, they let you have some nude pix, then there’s a breakup and you feel bitter and to get back at them you post their nudes online for the world to see. It’s a nasty, cruel thing to do. It’s not hard to imagine society thinking the practice to be so bad that it deserves to be punished. It’s easy, in other words, to see Revenge Porn as something that might be criminalized.

Some law professors have been pushing a model statute that would criminalize the practice. So far, no big deal. This is something that law professors are expected to do.

None appear to be professors or practitioners of criminal law, though. That’s not encouraging. Those reviewing the language will therefore probably want to keep an extra-sharp lookout for things like imprecise (or missing) mens rea, over-inclusive definitions, and conflated or confused concepts, etc. Nothing personal, just a normal precaution. You get this stuff all the time.

An extra wrinkle comes from the fact that posting a nude picture of your ex counts as “speech” for First Amendment purposes. And the First Amendment doesn’t let the government criminalize speech, except in very tightly controlled circumstances. Even the most awful, painful, hurtful and distressing speech (such as that of the Westboro Baptist “Church”) is not something that gets criminalized in this country.

-=-=-=-=-

This is a criminal law blog, not a First Amendment forum, and so it’d be somewhat off-topic to get into whether or not Revenge Porn is something that can be criminalized without running afoul of Freedom of Speech. But it is pertinent to note that the professors’ interpretation of the 1st Amendment here is not universal — and it is also relevant to examine how they have reacted to the ensuing disagreement.

To be fair, the law’s proponents are from academia, where disagreement (often) = bullying and criticism (sometimes) = hate speech. Where speech is generally not very well protected, in the first place. Where debate can be frowned upon and contrary points of view shouted down, removed from newspaper bins, at times even persecuted and hounded out. You ain’t seen petty vindictiveness until you’ve seen someone challenge the orthodoxy. You don’t get this from the better professoriate, of course — there are plenty of wonderful academics who welcome healthy debate, the chance to make their case or (as the case may be) get a new point of view. But there are plenty of others who prefer to point to their credentials and their peer-acceptance as proof of their correctness, and who get the most defensive when challenged.

You can usually tell which kind of academic you’re dealing with based on how they react to a contrary position. The ones who are pushing the Revenge Porn law, sadly, seem to be falling into the lesser camp so far. This is not good for their credibility.

So to the extent that First Amendment practitioners are in dispute with these particular academics, one might be inclined to conclude that the practitioners could perhaps be more likely to be correct.

-=-=-=-=-

But again, this is a criminal law blog. So how does the law look from the perspective of our criminal jurisprudence?

Not… not so great.

Here’s what the model statute says:

Whoever intentionally discloses a photograph, ?lm, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or con?dential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.

(a) De?nitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.

(b) Exceptions:
1) This section shall not apply to lawful and common practices of law enforcement, the reporting of unlawful conduct, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.

…..

Holy cannoli, where to begin…?

The first problem is one of good old mens rea: It criminalizes disclosing the image without the subject’s consent, regardless of whether the actor knew about it one way or the other, or meant to do so without consent. It criminalizes the act where the subject had a reasonable expectation of privacy, regardless of whether the actor knew or had any reason to know it. The only mens rea here is whether the image was disclosed intentionally.

It’s a strict liability crime. Whenever you see that, huge red flags should be popping up in your head screaming “INJUSTICE AHEAD!” Sure it doesn’t criminalize accidentally dropping a photo out of your wallet, but it does criminalize showing it to people with the mistaken belief that your wife was cool with it — or without the knowledge that she had since changed her mind.

The second problem is one of conflated concepts. “Reasonable expectation of privacy” is a concept of Fourth Amendment law — of procedural rights, not of criminal liability. It is a term of art that has been defined in a fairly convoluted fashion over the years in such a way that the average layman couldn’t give you an accurate definition of the phrase if his life depended on it. His liberty would depend on it, here. The authors probably don’t mean for this phrase to have the meaning & baggage it carries in Fourth Amendment jurisprudence. They just think it sounds good. And so there is inherent confusion in the statutory language. It is not clear what is actually meant here. And where there is vagueness in criminal law, where there is room for interpretation, there is room for cops and prosecutors to screw over the regular Joe. And if you don’t think that happens, you’re not getting out enough. When you see conflated concepts and room for interpretation, those red flags ought to be screaming at you even louder.

The third problem is one of unclear writing. Seriously, what do the “consent” and “reasonable expectation of privacy” clauses modify? Does this refer to images that are disclosed without consent, or taken without consent? Does this refer to images that were disclosed under circumstances where someone had an expectation of privacy, or taken under such circumstances? Is it criminalizing pictures of sexual acts that were nonconsensual? What about images that were taken by someone else, and then given to you by your ex? What about images that someone else forwarded to you, or you found online, and had no way of knowing whether they were consensually/privately taken or disclosed (whichever verb applies)? It can be read all of these different ways.

There is literally no way of knowing for sure what conduct is criminalized here. As written, it outlaws all kinds of behavior its authors probably didn’t mean to punish. It is overbroad as hell. You hear those red flags? Since when do flags scream? These are. Get some earplugs.

Strictly from a criminal perspective, this is a god-awful statute. It’s another one of those “think of the children” “take back the night” “let’s name a statute after the victim” kinds of legislation that pave an eight-lane superhighway to hell with their good intentions.

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You want a statute that works? (Again, ignoring any First Amendment concerns.) Here’s one I banged out in court this morning while waiting for a case to be called. Zero research or deep thought went into it:

…..

DEFINITIONS:

(A) “Private Sexual Image” = any media containing:

(i) an image taken in a non-public place, and in a non-commercial setting…

(ii) of a living person whose identity is readily ascertained from the contents of the image…

(iii) and depicting that person’s unclothed genitalia, buttocks, or female breasts, or depicting that person engaged in sexual intercourse, oral sex, manual-genital contact, or other such sexual behavior…

(iv) and which has not previously been “distributed” as that word is defined herein.

 

(B) “Distribute” = make publicly available by any means, including displaying in public or in a publicly-accessible medium, sharing via any communication or peer-to-peer arrangement, and any other method that makes a duplicate of the image available to others. Excluded are private acts of showing the image, without duplication or transmission, to individuals or small groups of people.

 

CRIMES:

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person; and

(3) thereby does harass, shame or defame that other person

is guilty of a Fucking Nasty Crime.

 

Any person who, with the intent to harass, shame, or defame another person:

(1) distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of that other person;

(2) when he knows, or a reasonable person similarly situated would know, that he does so without the consent of that other person

is guilty of a Nasty Crime.

 

Any person who

(1) intentionally distributes an image he knows, or a reasonable person similarly situated would know, to be a Private Sexual Image of another person;

(2) when he knows that, or recklessly disregards whether, he does so without the consent of that other person

is guilty of a Crime.

 

DEFENSES.

It shall be an affirmative defense to all of these crimes that, when the image in question was originally taken, it was reasonable to expect that it would later be viewed or possessed by people other than those who were a subject of the image, the person taking the image, and the person accused of distributing the image.

It shall be an affirmative defense to the Fucking Nasty crime that the image in question was transmitted to the accused via electronic or other means whereby the image could be “forwarded” or otherwise duplicated and transmitted to third parties.

…..

There, quick and easy. There’s probably stuff to fix in there, as well, and again who knows if it’d pass constitutional muster on other grounds, but it’s hardly as overbroad or prone to injustice as the one those professors are promoting.

I bet you can do it even better. You are cordially invited to tear my suggestion apart in the comments, and provide your own language. Have at it!

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7 Responses

  1. Ryan says:

    “Holy canolli…”

    Extra sassy today, I see.

  2. shg says:

    Before getting to your statute, this is either a particularly cool existential post or the by-product of passive-aggressiveness. With all those names, dates, places and links that others might consider necessary to support the story, the question arises why none appear here. Without them, someone might think you were either making the whole thing up, or that you were creating strawman characterizations to avoid dealing with the real arguments. Is it possible, as your post suggests, that you alone ware so neutral as to be above the fray?

    Now as to your law, the first hurdle — not the only one but the very first — is whether it passes the Anthony Weiner test. If the woman who disclosed the images of Carlos Danger’s manliness would violate the law, then it is, by definition, poorly constructed. Would she be a criminal under your law? You bet. She revealed it to shame and humiliate Weiner, and well she should. So how many years in prison would you give her?

    And no, I don’t have any solution, because I’m both not that smart and can’t find any way to avoid the pitfalls of creating a law the criminalizes the evil without criminalizing conduct that shouldn’t be included. And frankly, it’s not entirely clear that, as despicable as the evil may be, it’s sufficiently evil to warrant being a crime.

    • Nathan says:

      Links would have been a good idea. I must be getting old; I figured everyone must already know what I was talking about.

      Here’s a few from the profs’ turf, Concurring Opinions (don’t skip the comments) [1] [2] [3]. Note the preemptive threat to remove comments at the outset, and the ad hominems at the end.

      Here’s a few others from around the blogosphere [Mark Bennett] [Scott Greenfield] [Scott Greenfield] [Scott Greenfield]

      As to the Weiner test, I’m not sure I see why he’s any different from anyone else just because he’s a public figure. This isn’t a defamation test. What if an ex-boyfriend of the First Lady were to post embarrassing photos of her, with similar motive — why should that ex’s speech be more protected than that of any other jerk?

      There may be instances where such speech might fall into some other protected category, of course, but that could be dealt with by a statutory exception or one imposed by a court’s interpretation (better to write it into the statute, though).

  3. shg says:

    The Weiner test comes into play because it revealed impropriety by a public official running for Mayor of New York City. Had the woman who disclosed his selfies been subject to conviction for doing so, we would have been denied material information about the person asking for our vote. It’s newsworthy. It’s valuable for the thoughtful exercise of the franchise. And it would be criminal.

    The question it raises is whether revealing important information about a person running for public officer is something we want to criminalize. Or to put it another way, is she the bad dude we’re trying to lock up? If not, then the law isn’t sufficiently narrow to limit it to the bad dudes, and laws the sweep good people within their ambit together with the bad dudes are bad laws.

    And this is the easiest test of the law’s efficacy and propriety. There are still far more difficult and nuances questions. But if it can’t pass the Weiner test, then it’s back to the drawing board.

  4. Nathan says:

    It does exclude showing pics to others individually or in small groups, so I guess there’s nothing preventing the recipient of a Weinergram from showing it to a reporter. And there’s clearly nothing preventing the reporter from reporting on it. The impropriety is the important content, not what the body part actually looked like. They couldn’t post it to facebook or reddit, but they could certainly talk about it and show it to others who could talk about it.

    There’s also an escape valve for when the person sending nudes of himself did so via means that lend themselves to forwarding or duplication, such as texts and emails. Perhaps that could also be extended to all of the offenses — by sending something instantly forwardable, even by accident, you’ve assumed the risk that it might happen.

    This is fun. Constitutionality aside, and ignoring whether it’s even a good idea, how else might one tinker with the language to minimize vindictive complaints, injudicious prosecution, and unjust outcomes?

  5. Andrew M. Farrell says:

    A bill attempting to criminalize revenge porn has recently passed the New York state senate.
    http://open.nysenate.gov/legislation/bill/S5946A-2013

  6. Andrew M. Farrell says:

    STATE OF NEW YORK
    ________________________________________________________________________

    5946–A

    2013-2014 Regular Sessions

    IN SENATE

    October 4, 2013
    ___________

    Introduced by Sens. BOYLE, GRISANTI, KENNEDY, MAZIARZ, ROBACH — read
    twice and ordered printed, and when printed to be committed to the
    Committee on Rules — recommitted to the Committee on Codes in accord-
    ance with Senate Rule 6, sec. 8 — committee discharged, bill amended,
    ordered reprinted as amended and recommitted to said committee

    AN ACT to amend the penal law, in relation to creating the crimes of
    unlawful dissemination of an intimate image in the first and second
    degrees

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
    BLY, DO ENACT AS FOLLOWS:

    Section 1. The section heading and the opening paragraph of section
    250.40 of the penal law, as added by chapter 69 of the laws of 2003, are
    amended to read as follows:
    Unlawful surveillance AND DISSEMINATION; definitions.
    The following definitions shall apply to sections 250.45, 250.50,
    250.55 [and], 250.60, 250.70 AND 250.75 of this article:
    S 2. The penal law is amended by adding two new sections 250.70 and
    250.75 to read as follows:
    S 250.70 UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN THE SECOND
    DEGREE.
    A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN
    THE SECOND DEGREE WHEN, WITH INTENT TO HARASS, ANNOY OR ALARM ANOTHER
    PERSON, HE OR SHE INTENTIONALLY DISSEMINATES AN IMAGE OR IMAGES OF THE
    SEXUAL OR OTHER INTIMATE PARTS OF ANOTHER PERSON WITHOUT EXPLICIT
    CONSENT OF SUCH PERSON TO DISSEMINATE SUCH IMAGE.
    UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN THE SECOND DEGREE IS A
    CLASS A MISDEMEANOR.
    S 250.75 UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN THE FIRST
    DEGREE.
    A PERSON IS GUILTY OF UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN
    THE FIRST DEGREE WHEN HE OR SHE COMMITS THE CRIME OF UNLAWFUL DISSEM-
    INATION OF AN INTIMATE IMAGE IN THE SECOND DEGREE AND HAS PREVIOUSLY
    BEEN CONVICTED WITHIN THE PAST TEN YEARS OF UNLAWFUL DISSEMINATION OF AN
    INTIMATE IMAGE IN THE FIRST OR SECOND DEGREE.
    UNLAWFUL DISSEMINATION OF AN INTIMATE IMAGE IN THE FIRST DEGREE IS A
    CLASS E FELONY.
    S 3. Nothing in this act shall be construed to impose liability on an
    interactive computer service for content provided by another person. The
    term “interactive computer service” means any information service,
    system, or access software provider that provides or enables computer
    access by multiple users to a computer server, including specifically a
    service or system that provides access to the Internet and such systems
    operated or services offered by libraries or educational institutions.
    S 4. This act shall take effect on the one hundred eightieth day after
    it shall have become a law.

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