REVENGE PORN – IT’S NOT JUST BAD MANNERS, IT’S A FELONY
Sexting, cyber-sex, cyber-porn – all new sexual phenomenon born out of the age of instant connectivity through smartphones and the internet. Pornography, as we know it, has existed for decades and is heavily regulated by the government. What has gone untouched until now is the public disclosure of private sexual pictures and videos without the consent of both parties (a.k.a. Revenge Porn). Through applications like Snapchat, Facebook, Instagram, Tinder, Grindr, etc. people are sending pictures and videos of a sexual nature to themselves and others at a speed and frequency never seen before. Some might argue that it has become an accepted part of the online “dating game.” And like all things on the internet, once it’s “out there” you can never get it back.
“Revenge porn,” a term created by the media, is one of the many dark-sides to sex on the internet. Common scenario – girlfriend and boyfriend make a “sex-tape” together that boyfriend records using his smartphone. Two weeks later, girlfriend breaks up with boyfriend. Boyfriend posts “sex-tape” on social media website where anyone who follows girlfriend or boyfriend can see it. Until recently, this was not a crime. Girlfriend could file a civil suit against boyfriend, but she could not have him criminally prosecuted.
On December 1st, 2015, the North Carolina General Assembly enacted a “Revenge Porn” statute, more politely entitled a law to prevent the Disclosure of Private Images (NCGS 14-190.5A). Under the statute, a person is guilty if they knowingly disclose an image of another person with the intent to injure that person in some way (coercion, harassment, humiliation, extortion, etc). The person depicted must:
- Be identifiable from the image or from information connected to it;
- The person’s intimate parts are exposed or the depicted person is engaged in sexual conduct in the disclosed image;
- The image is disclosed without the affirmative consent of the depicted person;
- The image is obtained without the consent of the depicted person or under circumstances such that the person know or should have known that the depicted person expected the images to remain private.
Sounds straight forward right? Let’s take a closer look…
What are intimate parts?
This includes genitals, pubic area, anus, or the nipple of a female over the age of 12. The statute would not apply to a picture of someone’s nude buttock area. It is also would not apply to exposure of any part of the female breast other than the nipple.
What is sexual conduct?
The statute specifically defines it as:
- Vaginal, anal or oral intercourse, whether actual or simulated, normal or perverted;
- Masturbation, excretory functions, or lewd exhibition of uncovered genitals;
- Any act or condition that depicts torture, physical restraint by being fettered or bound, or flagellation of or by a nude person or a person clad in undergarments or in revealing or bizarre costume.
This section has many terms that are, as of yet, undefined in the legal context. For example, what is perverted simulated anal intercourse? What defines simulation? Lewd exhibition of uncovered genitals is equally vague. Are all uncovered genitals not protected under the statute? Is it only the genitals that are exposed in a lewd way? How do we define lewd? The questions are endless. And we haven’t even started on the “costume” section…
Who is protected?
In its original form, the statute used the framework of NCGS 50B-1 to define what types of relationships were protected under the statute. It left many people without protection, including same-sex couples.
After the latest amendment to the statute, everyone is protected under this statute regardless of sexual orientation, length or nature of relationship between discloser and subject portrayed. Anyone who discloses an image of another when they knew or should have known that the person portrayed intended for the images to stay private is guilty.
What is the punishment?
If the person who disclosed the image is 18 years or older à Class H Felony.
If the person who disclosed is less than 18 years old à Class 1 Misdemeanor (*for the first offense. A subsequent offense will be punished as a Class H Felony).
We should all follow one simple rule – don’t send sexual pictures, videos or anything else of yourself to another person. Clearly, very few people follow that rule anymore. Hence, the creation of this legislation.
It’s easy to agree that this kind of disclosure should be criminal, but the Disclosure of Private Images statute is vague and how it will be applied is unclear. What is clear is that this is a felony with significant consequences for anyone charged. Just like that naked picture you can never remove from the internet, this is a charge you may never be able to leave in the past. Call us today – don’t let a conviction for revenge porn frame the rest of your life.
August 15, 2017 Posted in Felony Comments Off on REVENGE PORN – IT’S NOT JUST BAD MANNERS, IT’S A FELONY
