In 2019, Congressional Representative Katie Hill announced she was resigning from her position after nude photographs of her were published in an online publication. Hill alleged that the photographs were released by her husband, with whom she was going through a divorce.
With the proliferation of smartphones and the convenience of having a high-powered camera in one’s pocket at all times, there has also been a proliferation of amateur, home-made explicit photos and videos. Often these photos and videos are exchanged between romantic partners or spouses. After a break-up, however, people can get spiteful and vindictive. What protections, and recourse, does an individual have against a former romantic partner who is in possession of intimate photos or videos?
Luckily, in most states, the unauthorized dissemination of intimate photos or videos is a crime. According to Cyber Civil Rights Initiative, 48 states, plus the District of Columbia, have such laws on the books – commonly referred to as “revenge porn” laws. The only states that do not yet have such laws appear to be South Carolina and Massachusetts.
Violation of these laws – at least the first offense – are considered misdemeanors in Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Indiana, Iowa, Kentucky, Maine, Maryland, Michigan, Mississippi, Montana, Nebraska, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Utah, Vermont, Virginia, West Virginia, and Wyoming.
In other states, a violation is considered a misdemeanor unless other conditions are met that raise the level of the violation to a felony. In the District of Columbia, the offense is a felony for “first degree,” but a misdemeanor for “second degree.” In Minnesota, it is a misdemeanor unless there are other factors, like if the image was disseminated with an intent to profit, if it causes the victim financial loss, or if it is publicly disseminated on a porn site, in which cases it rises to a felony. Minnesota also qualifies this act as a “qualified domestic violence-related offense,” which could have an impact on penalties for domestic violence convictions.
In New Jersey, a violation is considered an invasion of privacy and is considered either a fourth degree crime or a third degree crime. In Rhode Island, it is a misdemeanor unless the material was used to commit extortion, in which case it is a felony. In South Dakota, it is a misdemeanor that rises to a felony if the person depicted in the image is a minor and if the perpetrator is 21 years old or older. Similarly, in Wisconsin is it also a felony if the person depicted in the image is a minor, but otherwise a misdemeanor. In Washington it is a gross misdemeanor.
Finally, in the remaining 48 states, the violation of these laws is a felony. States in which the unauthorized dissemination of intimate images or videos is a felony include Arizona, Hawaii, Idaho, Illinois, Kansas, Louisiana, Missouri, New Hampshire, North Carolina, Texas, and our own state, Nevada.
The penalties for violating these laws vary by state. In California, for example, California Penal Code 647(j)(4) dictates it is a misdemeanor to distribute photographs or recordings of the “intimate body parts” when the parties had agreed that the image would remain private, punishable by up to six months incarceration and a fine of up to $1,000.00. In Alabama, while the first offense is still a misdemeanor, it is punishable by up to a year in jail.
In Louisiana, the potential punishment for the nonconsensual disclosure of private images is a fine of up to $10,000.00 and imprisonment – “with or without hard labor” – for up to two years.
Nevada’s law is covered by NRS 200.780, “Unlawful dissemination of intimate image.” The statute provides that it is a crime to disseminate an “intimate image” with the “intent to harass, harm or terrorize another person” when the individual in the image did not give prior consent to the dissemination or sale of the image, had a reasonable expectation that the image would be kept private and not made public, and if the individual was an adult.
Under the statute, such actions constitute a category D felony. Per NRS 193.130, a category D felony can come with sentence of one year minimum, and four years maximum, imprisonment, and a fine of not more than $5,000.00.
The statute does, however, come with some caveats. The statute does not apply to the dissemination of an intimate image for the purpose of a “legitimate public interest,” reporting unlawful conduct, lawful law enforcement or correctional activity, the investigation or prosecution of a violation of the law, or preparation for or use in a legal proceeding. Subsection four of the statute also states that an individual who commits such a crime does not need to subject as a sex offender.
The statute following this statute, NRS 200.785, states that if a person demands payment of money, property, or services in exchange for removing an intimate image from public view is guilty of a category D felony as well.
NRS 200.700 defines what an “intimate image” is. The statute states that this term encompasses photographs, films, videotapes, or other recorded images which depicts a fully exposed female breast, or one or more persons engaged in sexual conduct. The statute states the definition does not include an image of an individual who is not clearly identifiable, who voluntarily exposed themselves in “a public or commercial setting,” or a person who is a “public figure.”
This law was passed in Nevada in 2015, but it has not gone without criticism. As noted by a law review article by Camilla Dudley published in the Nevada Law Journal in 2019, the “intent” section of the statute may present “overly burdensome requirements” for a victim to obtain relief under the statute. The author argues that the “intent” requirement should be done away with, as well as the “public figure” exception, which she points out is not actually defined for the purposes of the statute.
The Nevada statute, as well as other states’ statutes, will likely be amended in the future as technology evolves and as critiques of current legislation are considered. There is also a push for federal legislation on the subject. It is fair to assume that “revenge porn” laws are here to stay and that all 50 states will have such laws eventually.