17 Pages Posted: 10 Oct 2013 Last revised: 17 Mar 2016
Date Written: September 7, 2014
Non-consensual pornography, defined as the distribution of sexually graphic images of individuals without their consent, transforms unwilling individuals into sexual entertainment for strangers. A vengeful ex-partner or malicious hacker can upload an explicit image of a victim to a website where thousands of people can view it and hundreds of other websites can share it. In a matter of days, that image can become the first several pages of “hits” on the victim’s name in a search engine, as well as being emailed or otherwise exhibited to the victim’s family, employers, co-workers, and peers. Victims are routinely threatened with sexual assault, stalked, harassed, fired from jobs, and forced to change schools. Some victims have committed suicide. Non-consensual pornography can destroy victims’ intimate relationships as well as their educational and employment opportunities. While non-consensual pornography can affect both male and female individuals, empirical evidence indicates that the majority of victims are women and girls, and that women and girls face more serious consequences as a result of their victimization. By violating legal and social commitments to gender equality, non-consensual pornography is similar to sexual harassment, rape, and domestic violence.
This working paper details the lack of appropriate legal response to this issue. While victims can in theory make use of tort or copyright law, such civil actions are burdensome, costly, and often bring increased attention to the harmful material. Moreover, non-consensual pornography is a form of sexual abuse and should be treated as such by the law. Currently, only two states have criminal laws that offer protection against such conduct, and there is no federal criminal law that directly addresses it. Both state and federal criminal laws are necessary to address non-consensual pornography. State criminal laws are necessary to address conduct that does not cross state lines. Federal law is necessary because state laws are limited both by jurisdiction and by the Communications Decency Act §230, which creates high hurdles for either civil or criminal charges against website operators who distribute non-consensual pornography. Given that the Internet has greatly amplified the scope and harm of non-consensual pornography, an effective law must also reach Internet traffickers. According to existing federal provisions, using the Internet to transmit information qualifies as “interstate commerce,” which Congress has the power to regulate. Combined with the fact that CDA §230 does not shield websites from federal criminal liability, this means that a federal criminal prohibition is both appropriate and necessary to fully address the problem of non-consensual pornography.
Notes: August 18, 2015: some of the information in this working paper is now outdated. For more up-to-date information, please see "Drafting an Effective Revenge Porn Law: A Guide for Legislators" and the article "Criminalizing Revenge Porn" in Wake Forest Law Review, both available on SSRN.
Keywords: revenge porn, sexual abuse, cyber harassment, First Amendment
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