Deconstructing the Statutory Landscape of 'Revenge Porn': An Evaluation of the Elements that Make an Effective Nonconsensual Pornography Statute

69 Pages Posted: 17 Jun 2020

Date Written: 2020

Abstract

This Article examines these issues by deconstructing the regulatory schema of the jurisdictions that criminalize NCP into fundamental elements. Part I addresses background facts, representative incidents, and damages to victims. Part II analyzes the general construction of criminal statutes into actus reus and mens rea elements. Part III sets forth a review of the statutory schemes that criminalize NCP. Part IV reviews the circumstances of jurisdictions without NCP statutes. Part V considers some sources of differences in the elements included in the various NCP statutes.

This analysis reveals that the more numerous the essential elements of an NCP statute, the more likely the statute will allow substantial NCP conduct to escape prosecution. Conversely, statutes that focus on the issue of the victim’s lack of consent for the defendant to distribute the intimate image and that have fewer additional essential elements allow fewer perpetrators of NCP to escape prosecution.

This Article also examines the underlying factors that resulted in these disparities, including the rigors and compromises inherent in the political process under-lying the enactment of such statutes, and the influence of the First Amendment to the U.S. Constitution.

As described herein, the twenty-first century is characterized by constant technological innovation and an increased pace of change in social values. The shortcomings of these NCP regulatory schema raise the prospect that the U.S. legal system is struggling to protect the general public from bad actors that exploit these techno-logical and social developments.

Suggested Citation

Sales, Jonathan S. and Magaldi, Jessica A., Deconstructing the Statutory Landscape of 'Revenge Porn': An Evaluation of the Elements that Make an Effective Nonconsensual Pornography Statute (2020). American Criminal Law Review, 2020, Available at SSRN: https://ssrn.com/abstract=3608398 or http://dx.doi.org/10.2139/ssrn.3608398

Jonathan S. Sales

Bentley University ( email )

175 Forest Street
Waltham, MA 02145
United States

Jessica A. Magaldi (Contact Author)

Pace University ( email )

One Pace Plaza
New York, NY New York 10038
United States

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