New York City Has Proposed a “Revenge Porn” Law, But Will It Be Effective?

New York City Has Proposed a “Revenge Porn” Law, But Will It Be Effective?

Imagine the following situation: after breaking up with your boyfriend, he posts a nude picture you let him take one night on the Internet or his social media account, or both. If you live in New York, your ex-boyfriend has not committed a crime.  As New York law stands, the illegal surveillance statutes only outlaw the distribution of videos or pictures originally taken without consent.^[1] But fortunately, for victims of ‘revenge porn,’ both New York State^[2] and New York City are trying to change that. On September 14^th 2016, City Councilman Rory Lancman introduced a bill designed to make the “non-consensual disclosure of explicit images” a misdemeanor.^[3] While introducing a bill is an important step in recognizing the need to criminalize non-consensual disclosure, the proposed bill suffers from a major flaw: it contains an intent requirement. As the text reads, the photos or videos need to be disclosed with “the intention to cause economic, emotional or physical harm.”^[4] Intent requirements are written into statutes to placate ACLU concerns but there are states without the requirement that have not been ruled unconstitutional.^[5]

There are multiple problems with requiring any form of intent. First, intent is hard to prove, partially because the defendant can say they are motivated by some other factor. For example, the photos could be published for making a profit or as a joke.^[6] Second, it includes only a limited list of harms and does not recognize other harms that can result when these images go public. For example, these images can ruin the victim’s reputation, educational or employment opportunities. Third, focusing on whether or not the defendant intended to harm minimizes the harm the victim suffers. If the victim suffers emotional harm but the defendant says they only intended to post the image as a joke and not to cause emotional harm, there is nothing that can be done. In a 2016 Guide for Legislators, it was reported that 93% of victims have suffered emotional distress but as the law stands if they cannot prove that the defendant intended that result then there would likely be no repercussions. In my opinion, if that’s the result, the law is ineffective.

Before 2012, this behavior was a crime in only three states.^[7] As of the date of this blog post, 34 states have laws criminalizing revenge porn.^[8]. In July 2016, the Intimate Privacy Protection Act was introduced in Congress.  We are clearly moving in the right direction and making fast progress but it is important to keep in mind what makes a law effective when drafting them in the remaining states.  An effective law will provide all forms of protection possible for a victim and not create an additional hurdle by including an intent requirement.