Ravages of Revenge Porn Spur Federal Crime Push

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Credit: Rachel Johnson on Flickr, under Creative Commons

(WOMENSENEWS)– When her high school boyfriend contacted her in 2009, 19 years after they’d graduated and parted ways, Annmarie Chiarini said all of her old teenage feelings came rushing back.

"It was that high school fantasy," said Chiarini, 44, a community college English professor and single mother. "We rekindled the relationship."

They dated for about seven months, commuting between her home in Maryland and his in New Jersey, she said.

During that time, Chiarini had reluctantly acquiesced to her boyfriend’s repeated requests to photograph her nude. "At the time I didn’t want to," she said. "I thought my discomfort was body image stuff, but in hindsight I realize I didn’t trust him."

When her boyfriend began to reveal a jealous controlling side, Chiarini told him it was time to end things. That is when her nightmare started, she said.

Her ex accused her of sleeping with the men he saw on her Facebook page and told her if she didn’t confess to the affairs, he’d auction her nude photos on eBay, she said.

The eBay posting went up the day after he made the threat. Chiarini’s ex-boyfriend used her eBay and email accounts to tell friends and family about the auction, and he posted links to the eBay auction on the Facebook pages of the college where Chiarini still teaches, she said.

She was able to get eBay to take down the auction, but the photos kept popping up on other sites. "It was like cat and mouse," she said.

Chiarini is one of an estimated tens of thousands of revenge porn victims – 90 percent of whom are women — whose nude and sexual images are posted without their consent to roughly 30 designated revenge porn sites, other websites and social media forums, according to surveys by McAfee, the Silicon Valley-based global computer security software company, and the End Revenge Porn campaign.

The McAfee report, found that 50 percent of people have shared personal or intimate images with friends or loved ones, 1-in-10 surveyed had been threatened by ex-partners that their intimate images would be posted online and 60 percent of those threats were carried out.

Law Enforcers See No Crime

Chiarini appealed to local and state law enforcement as well as the FBI, but all told her that no crime had been committed. At the time of her attack, only three states had specific criminal penalties for nonconsensual pornography. Although harassment and stalking laws as well as civil penalties against invasion of privacy and copyright infringement can be applied in many of these cases, there is an education gap in the law enforcement community, say lawyers and advocates, who attribute this in part to a reluctance to recognize or prosecute crimes against women.

Chiarini’s revenge porn scourge lasted more than a year — as her photos spread across the Internet, including her full name, hometown and the college where she teaches — and caused her depression and anxiety so severe she had to take a semester-long medical leave from her teaching job.

In September 2011, 14 months after the original eBay posting, she Googled herself and found the photos on a porn website with her full name, the name of the college where she works and the solicitation "Hot for teacher? Well Come Get it!" It had been posted for two weeks and had already received more than 3,000 hits.

"Technology is making it easier than ever to ruin someone’s life with the click of a button, by publishing private images of someone without their consent," said Democratic Congresswoman Jackie Speier of California, who is working with the Miami-based End Revenge Porn campaign on legislation to make nonconsensual pornography a federal crime. Speier plans to introduce this legislation in the next few months.

Started in 2012, the End Revenge Porn campaign has helped 11 state pass laws criminalizing revenge porn.

Today 16 states have criminal remedies for revenge porn, with more in the works. Though advocates say federal law is also essential to combating this vicious online crime, which is boundary-less like the Internet.

"With our patchwork of current laws, people victimized by revenge porn often have no recourse and their images can continue to circulate on the Internet indefinitely," Speier said. "The current framework doesn’t prevent or punish this abuse, and while states are starting to pass their own laws, the only sufficient solution is to criminalize these destructive acts at the national level."

Today Chiarini is a victim advocate for the Cyber Civil Rights Initiative, the Miami-based umbrella organization for the End Revenge Porn campaign. She lobbied for Maryland’s revenge porn law, and when it passed last year, she said she felt like her own revenge porn nightmare was finally over. "Our stance is that we want to write good laws," she said, "not ruin some 20-year-old’s life."

First Amendment Concerns

Some First Amendment proponents, however, raise concerns about criminalizing such online expression. They argue that it is sometimes difficult to determine the intent of the images’ original creators and distributors. And they say civil laws addressing the publication of illegally obtained content, or public disclosure of private information, may offer a better remedy for revenge porn.

Lee Rowland, a lawyer for the American Civil Liberties Union Speech, Privacy, and Technology project, said she has "real concerns about passing new criminal laws targeting revenge porn."

With child pornography, you can clearly determine what it is by looking at the images, whereas revenge porn generally starts out as a consensual exchange, Rowland said.

Laws that punish those publishing nude or sexual photos without the subjects’ consent can blur the distinction between malicious activity and the sharing of "valuable newsworthy nudity," such as the Abu Ghraib prisoner abuse photos of 2003, or the 2011 tweets of former New York Congressman Anthony Weiner, Rowland said.

Other concerns with criminalizing nonconsensual porn have to do with how and why these photos are sometimes created and distributed. It’s not uncommon, for example, for men or women on dating sites to send unsolicited nude images, Rowland said. If a woman receives such a photo, should she be criminally liable if she forwards it to a friend? What if she turns her phone and shows the image to a friend sitting next to her?

The ACLU is currently representing plaintiffs challenging Arizona’s revenge porn law for concerns that it sweeps too broadly and could censor newsworthy material.

"It’s extremely hard to get this kind of legislation right and focus on the real bad guys," Rowland said.

Copyright and invasion of privacy laws apply to a broad range of behavior including revenge porn, Rowland said. These civil remedies, she said, can also resolve the issues by requiring that the images get taken down. Laws against stalking and harassment may also be applicable to revenge porn.

Civil Remedies ‘Impractical’

Mary Anne Franks is legislative and technology director for the End Revenge Porn campaign, which has heard from more than 1,000 revenge porn victims since 2013. She contends that civil remedies are not practical.

"Ask any victim if the remedies are already in place (when she’s) just found out her pictures are displayed, she’s lost her job and she’s getting 10 harassing calls a day," Franks, a professor at the University of Miami School of Law who is working with Speier’s office on the federal legislation, said in a recent phone interview.

"The disclosure of sexually explicit images without consent and for no legitimate purpose . . . causes immediate, devastating and in many cases irreversible harm," Franks wrote in January in a guide for state and federal legislators. "A vengeful ex-partner, opportunistic hacker or rapist can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it."

Franks said nonconsensual pornography should be legislated similar to child pornography or identity theft. "It’s one type of behavior that’s so destructive we should criminalize it," she said.

It doesn’t work to tell her to hire a lawyer and pay the legal fees for a years-long process, Franks added. "It’s not possible for a normal person to win a (revenge porn) suit."

Franks said the pending federal law – like many well-written state laws including those in California and Illinois — will specifically address intentional disclosure of images that the poster knew were supposed to remain private.

"It’s clearly not just forwarding a bunch of links," she said. "We’re talking about someone you trusted with your picture with, like handing a waiter your credit card, or talking to the doctor."

If they misuse your private information, they are not exercising their First Amendment rights, Franks said.

Long Lasting Trauma

of the report She emphasized the damage caused by revenge porn.

"The trauma reaction (associated with revenge porn)–fear, anxiety, depression, isolation–is mirroring what we see with other types of harassment," said Kolmes, in a recent phone interview. Kolmes added that revenge porn victims’ suffering is generally prolonged. "It’s public, archived, and it doesn’t go away."

Unlike similar offline crimes, Kolmes said, research suggests revenge porn also takes a toll on bystanders to the episode. "Others feel shaken up, fearful, hyper-vigilant and anxious witnessing it in real time."

Miami-based psychologist Holly Jacobs founded the End Revenge Porn campaign after her own experience of revenge porn was so persistent it prompted her to change her name, only to find that the name change was also posted online.

"Nonconsensual porn is used as a means of controlling and overpowering its victims," Jacobs said. "Victim blaming – ‘that’s what she gets for sharing those kinds of pictures’ – is also ever-present in nonconsensual porn, just as with other forms of sexual abuse."

"This is more hostile than isolated instances of harassment," said the End Revenge Porn campaign’s Franks. In her article published in the Columbia Journal of Gender and Law, describes the creation of "unwilling avatars" as a "particular discriminatory phenomenon (that) involves invoking individuals’ real bodies for the purpose of threatening, defaming or sexualizing without consent."

Although Speier’s office would not confirm the specifics of the pending legislation, expects the federal law will follow her guideline, "Drafting An Effective ‘Revenge Porn‘ Law: A Guide for Legislators." It will be "narrowly tailored" and will honor the First Amendment, Franks said.

According to the guideline: "The law should clearly set out the elements of the offense: the knowing disclosure of sexually explicit photographs and videos of an identifiable person, when the discloser knows or should have known that the depicted person has not consented to such disclosure."

Additionally, according to Franks’ guideline, the federal law should take into consideration whether a reasonable person would understand that the image was supposed to remain private; and it is expected to exempt images distributed as part of lawful criminal investigations, reporting of unlawful conduct or other lawful public purposes.

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