Why Revenge Porn Laws May Not Protect Women

It's not your imagination: Laws that typically protect women, such as stalking or revenge porn statutes, are rarely enforced.

(Photo: Robert Daly/Getty Images)

Dec 2, 2014· 3 MIN READ
Hayley Fox is a regular contributor to TakePart who has covered breaking news and the occasional animal story for public radio station KPCC in Los Angeles.

Noe Iniguez was angry about his breakup and crossed the line when he posted a topless photo of his ex-girlfriend on her employer's Facebook page—and unlike most horrible exes, on Monday he paid the price for that harassment.

The 36-year-old Los Angeles resident became the first person convicted under California's "revenge porn" law and he was sentenced to a year in jail—even though he tried to avoid detection by using an alias when he posted the picture and called her a "drunk," a "slut," and a bunch of other nasty names, according to Frank Mateljan, a spokesman for the L.A. City Attorney.

While Iniguez may have gotten away with this behavior in the past or in a different state, California's new statute against invasion of sexual privacy prohibits the posting of naked pictures without the subject’s permission. After a seven-day trial, Iniguez was found guilty of three criminal counts: two restraining order violations and the revenge porn infraction.

“California’s new revenge porn law gives prosecutors a valuable tool to protect victims whose lives and reputations have been upended by a person they once trusted,” said L.A. City Attorney Mike Feuer in a statement. “This conviction sends a strong message that this type of malicious behavior will not be tolerated.”

But this type of conviction may prove rare, even as revenge porn laws become increasingly common. This is partly due to the loose language of some states’ statutes, the reluctance of law officials when it comes to enforcement, and the hesitation many women feel in reporting a sexual crime, said Mary Anne Franks, vice president of the Cyber Civil Rights Initiative, a nonprofit that aims to reduce online harassment through national legislation and support victims.

Franks has worked with legislators in New York, Wisconsin, Maryland, and other states to develop nonconsensual pornography laws, better known as revenge porn laws. Since 2013, 13 states have enacted legislation and in 2014, similar bills were introduced in 28 more states, according to the National Conference of State Legislatures.

But these laws are not without their shortfalls. One of the most problematic aspects is the “emotional distress” clause many states have adopted, said Franks, which states that the perpetrator must have posted the nude photo with intent to cause emotional harm.

"That clause will make it very, very difficult to bring prosecutions," she said. "The more difficult that is, the less likely law enforcement is to even take it up."

That’s because a prosecutor would have to prove beyond a reasonable doubt that the defendant posted the photo to intentionally hurt the victim, not because he thought it was “fun” or “profitable” as some claim, said Franks.

Because these revenge porn laws are relatively new there’s not a lot of hard data on how many victims have tried to use them, but online harassment is an increasingly studied topic. Forty percent of adult Internet users report being harassed online, and 19 percent of Internet users witnessed other people being sexually harassed, according to a study released in October by the Pew Research Center.

Internet harassment is not just a nuisance, said Franks, it’s an offense in the same category as domestic violence and sexual assault. Having an unauthorized nude photo of yourself posted online is “deeply traumatizing,” she said, and at a minimum can cause psychological scarring for the victim.

One victim’s naked picture was found on thousands of different websites, said Franks, and nearly all victims become vulnerable to harassment and potential stalking. Some may lose their jobs, get kicked out of schools, or even commit suicide because of revenge porn. In 2012, Canadian teenager Amanda Todd committed suicide after a topless photo of her made its way around the Internet and she was continually bullied online.

Younger victims are more likely to take their own lives because of revenge porn, said Franks, as they often think the harassment will never end.

"Sadly enough, they may be right about that," she said.

Despite these traumatic effects, nonconsensual porn seems to be going the way of stalking and voyeurism, said Franks.

"All these types of actions that disproportionately target women, all of them, tend to not get too much attention from law enforcement," said Franks.

Even if a state has a revenge porn law on the books, it doesn’t mean police will actively enforce it or inform victims of it, said Franks. In fact, she's heard from multiple women that when they called local law enforcement to report victimization, they were told by police this posting of nude photos wasn't illegal—even in states where it was.

Like Internet crimes such as gambling, revenge porn often isn’t isolated in one state. Victims can be publicly demeaned by someone across the country, so prosecution can get tricky. Some laws dictate that if the victim or the perpetrator is a resident of the state, the case can be filed, said Franks. Others leave this aspect open to interpretation, to be determined by court cases down the road.

So while the Cyber Civil Rights Initiative and other supporters are pushing for federal legislation against revenge porn to give all women in America protections, certain media groups and the American Civil Liberties Union are pushing back.

In September, the ACLU sued the state of Arizona for its overly “broad” revenge porn law and just last week, the law was put on hold until a new version can be drafted. The ACLU claims the existing law could be used to censor the sharing of non-pornographic images, such as a cute naked baby photo or the Pulitzer Prize winning “Napalm Girl” one that shows a naked Vietnamese girl.

“[The law] applies to anyone who shares a nude image, not just to bad actors who intentionally invade another’s privacy,” wrote ACLU Staff Attorney Lee Rowland in a September blog post about Arizona's law. “And the law applies equally to a private person’s hacked naked photo and a beautiful nude at a photography exhibit—because the law’s breadth encompasses truly newsworthy, artistic, and historical images.”

The U.K. has already enacted a national law against revenge porn, and just last month its first offender was jailed for the offense. Franks is pushing for similar national change in the U.S. but it is slow going. She's been working with California Congresswoman Jackie Speier on developing the legislation, and collaborating with the bill's many opponents to diffuse some of its controversy before its official introduction to federal legislators.