By Lisa Autz
Photo courtesy of James.
Our technological lives present new normative and legal challenges. A growing number of reports highlight the issue of non-consensual pornography, or “revenge porn,” being distributed online without the consent of the individual pictured. The spreading of this revenge porn has become a digitized form of sexual violations that struggle to be criminalized throughout the states.
Legislators in the UK, meanwhile, rushed to pass a bill criminalizing the leaking of private sexual images and videos for up to two years in prison. The action followed a controversy over the lack of legislation in the US criminal law. Back in July, British women paid thousands of dollars to have revealing photos taken down from US-based revenge porn sites.
The spearheaded action of the British government is putting all the more pressure on US legislatures to crack down on the growing pixelated harassment. According to EndRevengePorn.org, an organization of the Cyber Civil Rights Initiative (CCRI), approximately 10 percent of ex-partners have threatened to post sexually explicit photos online and 60 percent of those threats became a reality. Of those victims, 90 percent were women.
Mary Anne Franks, a law professor at the University of Miami and the board vice president for CCRI’s legislative reform work, advised UK’s Member of Parliament Maria Miller in her efforts to introduce the bill in Britain. She also advised legislators in 18 states in the drafting of laws prohibiting the non-consensual distribution of intimate images.
Franks explains to BTR the major hurdles in forming this type of federal statute.
“Unfortunately, many of the laws that have passed are flawed, some in terms of their inadequate protection for victims; some in terms of their inadequate protection for First Amendment values; and some in terms of both,” she says.
The issues are because both legally and culturally, we have failed to reach a consensus on how to categorize such a crime. Does the public’s perception of revenge porn depend on whether these images were taken by the victim themselves? Are victims more or less blameworthy if it’s a selfie? How do we signify consent?
“The law should make no distinction between people who took pictures of themselves and people whose pictures were taken by other people, as there is no reason to distinguish between them.” explains Franks.
Unfortunately, many laws do include that degree of distinction. For instance, in October, California signed a bill making revenge porn a misdemeanor with a punishment of up to six months in jail. However, the law does not protect those who capture selfies or other nude photographs of themselves. The exception leaves a majority of victims out of the law’s protection. According to estimations from the CCRI, 80 percent of revenge-porn images were recorded by the victims.
So far, 15 states have laws prosecuting revenge porn–a leap from just three states in 2012. More encompassing bills criminalizing revenge porn are still being considered in states like New York, Connecticut, and Florida.
Many of the current laws troublingly focus the crime on the misuse of the production of such images or videos aiming at copyright and intellectual property issues instead of violations towards the human body. Whitney Erin Boesel, a fellow at the Berkman Center for Internet & Society at Harvard University, spoke with BTR on how lawmakers should view revenge porn offenses.
“Put simply, ‘revenge porn’ is more ‘revenge’ than ‘pornography,’” explains Boesel. “Accordingly, when we think about legislating against revenge porn, we should begin by looking at laws against assault and abuse rather than laws related to copyright, content, intellectual property, or speech.”
Boesel also considers revenge porn as a type of sexual violence that largely targets women, transgender people, and others who are genderqueer. Of course, sexual violence towards these demographics is nothing new, so why, in the digital medium, are they not treated with the same seriousness of the law?
“Anyone can feel hurt and betrayed when a past partner shares intimate images without consent–but where a gender-conforming man is more likely to be laughed at, a woman is more likely to be stalked, threatened, or harassed,” says Boesel.
From that standpoint, the uncertainty of how we view revenge porn can be cleared. Boesel sees such cases as evident expressions of power and acts of domination in a crowd sourcing form of violence against others.
The misguided approach of legislation continues to have dire effects on the victims. People who have inappropriate images of them published without consent will continue to feel helpless if they lack avenues towards a type of amendment or recovery. According to the CCRI, victims report experiencing significant emotional distress due to revenge porn. They also suffer from compounded acts of stalking and sexual harassment in the wake of the disclosure.
Cynthia Najdowski, an assistant professor of criminal justice at SUNY Albany, wrote a column in the Society for the Psychological Study of Social Issues emphasizing the need for more psychological research on the impact of the crime.
“I don’t know of any research that has examined the psychological impact of revenge porn. That’s one of the reasons I wrote the column on it earlier this year–to call psychologists’ attention to this new form of victimization and research its effects,” says Najdowski. “I think it’s critical that we explore not only how revenge porn affects victims, but also how it contributes to rape culture and legitimizes this and other forms of sexual abuse and assault.”
Najdowski is a proponent of more effective laws.
Perhaps the lack of tougher legislation is due in part to the digital dualism we face today in our court system. Laws are often written as technologically specific in order to result in actual criminalized action. Local law enforcement often consider offenses that occur in the digital realm outside of their jurisdiction.
But, in truth, our digital world is really an extension of ourselves and our bodies–a point that Boesel eloquently expressed during her speech at the annual Association of Internet Researchers meeting.
Our digitization is new, but the violence against the female body, in particular, is old. Hopefully legislation will catch up.