A push by some state lawmakers could give victims of revenge porn — sexually explicit photos, audio or videos of someone distributed without the subject’s consent — a way to legally seek justice.
Under a proposal introduced earlier this month, criminal and civil consequences for the dissemination of images that a reasonable person would expect to remain private would be created. But some worry that legislation could impact free speech.
“This is a reprehensible crime, which has far reaching impact on its victims and their loved ones,” said Rep. John Lesch, DFL-St. Paul, the bill’s author.
A similar bill has been introduced in the Minnesota Senate.
If passed, the distribution or dissemination of private sexual images without the subject’s consent would be punished as a gross misdemeanor, with more severe penalties under more extreme circumstances. It would also criminalize threats to publish or distribute such sexually explicit images.
In a 2013 survey, almost all victims of revenge porn reported emotional distress, negative social and occupation impacts and often were harassed or stalked by people who had seen the material, according to the Cyber Civil Rights Initiative. Many feared that their reputations could be tarnished.
The same survey found that 90 percent of victims were women.
Lesch said the issue needed to be addressed after the Minnesota Court of Appeals struck down the state’s criminal defamation statute, which had been used to prosecute a revenge porn case in Isanti County.
Currently, 26 states and Washington, D.C., have some form of revenge porn law.
But some say the legislation could infringe on First Amendment rights.
Benjamin Feist, legislative director of the American Civil Liberties Union of Minnesota, said that while the ACLU takes the issue of revenge porn seriously, its criminalization might lead to a restriction on free speech.
“The issue ends up being one where you are punishing speech rather than direct conduct,” he said. “Under the constitutional analysis, there are a number of places that you can kind of run into trouble with that.”
Feist said that for the ACLU to be able to support any revenge porn legislation, the law would have to specifically penalize individuals acting with malicious intent or with the direct purpose of doing harm to someone.
Lesch said he doesn’t expect the legislation to become a slippery slope to restrictions on other forms of free speech.
“I expected the ACLU to vigorously defend civil liberties,” he said. “I am proposing simply this [bill] that demands that it be criminal conduct to put your ex-girlfriend’s nude pictures up on the web because you’re mad at her. And there’s really no law against that right now in Minnesota.”
Patrick McGeehan, a Florida-based attorney who has handled these types of cases in the past, said state statues on revenge porn have to find a middle ground between the protection of free speech and the protection of victims.
“It’s very much a balancing act,” he said. “How much can you infringe upon somebody’s speech to protect the victim?”
