With the dawn of smartphones and social media, more individuals can access video recording devices. The ease of access to these devices has led many people in intimate relationships to find it easy to exchange pornographic content of themselves or even consent to the filming of sexual acts. Unfortunately, when the intimate relationship or marriage ends, a bitter or malicious partner can post or share a consensually taken video or picture without the other party’s permission, with the intent to embarrass, manipulate, or annoy.
Disseminating compromising videos or pictures of your partner is a crime codified under PEN 617(J)(4) to discourage revenge porn or nonconsensual porn. The crime is severely punished because it leaves victims feeling like they are falling apart, as they are afraid of the damaged reputation. In most cases, revenge porn is associated with domestic violence, making it even more serious. So, if you face the charge, you can turn to CCLG: Los Angeles Criminal Attorney to help you contest the charges for a fair outcome.
Revenge Porn and Domestic Violence (DV) at a Glance
Revenge porn has become a common form of domestic violence thanks to the advent of smartphones and other recording devices. Previously, domestic violence was viewed by many as an act of physical violence against an intimate partner. Many people, including legislators, ignored the emotional aspect of domestic violence. However, with the dawn of social media and smartphones, a new form of DV has emerged, where an abuser can share compromising photos or videos of their partner with the public to humiliate or embarrass them.
Many individuals enter into intimate relationships with pure intentions, but no one knows how the relationship will progress. As the relationship progresses, a traumatized partner can turn abusive, prompting the other to want to escape the physical and emotional abuse. Unfortunately, most abusers are obsessive and do not want the relationship to end. They end up using sexually explicit materials of the other person obtained through consent earlier in the relationship for blackmail. Those who dare to leave have this material shared with other people or posted on their official websites, destroying lives.
The California DV definition is broad to include intentional or reckless actions that result in the use of physical force or emotional suffering against the victim. If you intimidate, coerce, or threaten a current or former intimate partner by deliberately or recklessly sharing their intimate pictures or videos on the internet or social media, your conduct amounts to revenge porn, despite the materials having been obtained consensually. The intimate partner can be a fiancé, romantic partner, cohabitant, or registered domestic partner.
Revenge Porn Legal Definition
As per PEN 617(j)(4), it is unlawful to intentionally disseminate sexually explicit photos or videos of a current or former intimate partner without their permission when doing so would cause the victim severe emotional stress. The California Legislature enacted the law in 2013 to crack down on revenge porn, which had become prevalent. The offense is a misdemeanor, and if found guilty, you will face no more than 6 months in jail and court fines of up to $1,000.
Examples of behavior that amounts to revenge porn include:
- Recording sexually explicit pictures or videos of an intimate partner and then sharing them on social media after a breakup.
- Consensually taking compromising pictures or videos of a woman and uploading them online
Disgruntled former lovers are not the only people who engage in revenge porn. Even a stranger can record a sexual act without consent and upload it to pornographic websites.
Revenge Porn Elements
When prosecuting PEN 617(j)(4) violation charges, the prosecutor must prove that:
- You possess sexually explicit or intimate parts, videos, or pictures of an identifiable individual
- You intentionally disseminated the sexually explicit materials
- You and the party depicted in the videos or images had agreed that the recorded or shared pornographic materials would remain private, or the victim did not consent to the sharing.
- You knew or ought to have known that posting or distributing the sexually explicit materials would trigger significant emotional distress in the victim.
- The individual identifiable in the materials or the victim suffered actual emotional stress
Revenge porn is not the same as invasion of privacy. In revenge porn, the victim usually consents to the recording of the pornographic material or even consensually shares the intimate body part pictures with the abuser early in the relationship. However, in privacy invasion, the images or videos are recorded without the victim’s knowledge or consent.
The legal terms used in the definition and elements of revenge porn can be confusing. Explained below are some of these terms for a better understanding of your crime:
Intimate Body Parts of an Identifiable Individual
“Intimate parts” refer to the genitals, anus, or any part of the female breast fully uncovered or visible under clothes. Meanwhile, an identifiable individual means that the party depicted in the videos or photos could be identified by a person who accesses the shared compromising material. During prosecution, the court focuses on whether the victim’s face was in the pictures or videos to determine whether the victim was identifiable. A background tattoo, item, or birthmark in the shared sexually explicit photos or videos can also be identified with a certain individual, making the party identifiable.
Intentional Dissemination or Distribution
Another element in the revenge porn legal definition that you should understand is intentional distribution. You intentionally or purposely disseminate sexually explicit content if you distribute the material in person or deliberately cause another party to distribute or share it.
So, if you accidentally attach a sexually explicit video of you and your ex-lover instead of a promotional video when sending a work email or accidentally share an intimate part image of your partner in a social media group, you are not guilty of revenge porn because your actions were not deliberate or on purpose.
Intent to Inflict Emotional Distress or Harm
The prosecutor must show you intended or planned to cause the victim emotional harm by:
- Engaging in an extreme or reckless act. Extreme conduct is conduct accomplished with malice, and that exceeds the standard bounds. In the case of revenge porn, it is the uploading online of sexually explicit or intimate photographs of an intimate partner, former or current, without their consent.
- Causing severe emotional harm to the victim. Severe emotional harm or stress is one that the victim experiences for an extended duration after the posting. For instance, when you post sexually explicit videos of your former lover, they will be embarrassed for weeks or months because of the incident, which amounts to severe emotional distress.
Revenge Porn Exceptions
There are several instances when intentionally disseminating intimate photos or sexually explicit videos of another person does not amount to a violation of PEN 617(j)(4). These include:
- When in the process of reporting an unlawful activity
- When complying with a subpoena or any other court order for use in a legal proceeding
- When engaging in a lawful proceeding
Sharing sexually explicit or intimate parts or materials with the court or law enforcement is not a crime. The court will not find you guilty if you posted or shared the materials under these circumstances.
Revenge Porn Legal Penalties
A PEN 617(j)(4) violation is a misdemeanor whose conviction attracts:
- At most six months of jail incarceration
- Court fines of no more than $1,000
If the victim was underage or you are a repeat offender, you will face the following penalties upon conviction:
- At most $2,000 in monetary court fines
- No more than twelve months of county jail confinement
If the victim was a minor and you were 18 or older, and the current revenge porn offense is your second or subsequent violation, the offense becomes a wobbler. The prosecutor can charge it as a felony or misdemeanor depending on the case’s circumstances. If convicted of a misdemeanor, your penalties will be as follows:
- At most twelve months of jail incarceration
- Court fines not exceeding $2,000
Conversely, a felony conviction will attract:
- 16, 24, or 36 months of jail confinement
- No more than $10,000 in court fines
Additionally, the judge can impose informal or summary probation in place of jail confinement after a misdemeanor conviction. The probationary term is usually no more than 36 months and comes with stringent conditions you must adhere to. These include:
- Enrollment in a court-approved counseling program
- Community labor participation
- Victim restitution
- Adherence to restraining or stay-away orders
- Enrollment in anger management classes
- Avoiding crime while serving probation
- Payment of court-related costs
Unless you can provide clear and compelling evidence for a violation of these terms, judges take a breach of informal probation seriously. If you are guilty of the violation, the judge can easily let you off the hook with a warning and allow you to continue on probation, or modify the probationary terms to make them stricter. In worst-case scenarios, the judge will revoke your probation and impose the initial misdemeanor penalties, including the maximum jail term.
Misdemeanor probation exists to offer offenders a chance at rehabilitation. However, the option is normally available for first-time offenders. Still, repeat offenders can qualify for misdemeanor probation if an attorney can make a convincing argument that rehabilitation is in the public interest. An experienced attorney will work hard to ensure you are sentenced to probation instead of jail confinement.
Other Consequences of a Revenge Porn Conviction
Apart from court fines, probation, and jail incarceration, other consequences of revenge porn include:
- Inadmissibility or deportation, as the offense is categorized as a moral turpitude offense and is subject to immigration consequences if you are an alien.
- Your partner can use the conviction to secure full custody if you have an ongoing custody case in court.
- A restraining order barring you from contacting the victim
- Loss of gun rights
- Making a payment towards a battered women’s shelter
- A personal injury lawsuit from the victim seeking compensation for the harm caused by your conduct.
- Professional disciplinary measures from your licensing body
The collateral consequences of the crime include:
- Problems finding a job or an apartment lease
- License revocation if you hold a professional license in a field that substantially relates to the offenses, such as education or healthcare.
- Adverse rulings on child custody
- Problems renting or leasing an apartment
Most employers and property managers run background checks before hiring someone. If you have been convicted of a revenge porn crime, the conviction will appear on your record during criminal record checks, hurting your chances. Fortunately, you can file for an expungement if you qualify to obtain post-conviction relief from all the collateral consequences of a guilty verdict. An expunction sets aside the conviction, releasing you from the disabilities of the verdict. However, you need an experienced attorney to help you file a successful petition.
An attorney is critical in every stage of the case, from investigation to sentencing. With the right attorney, you can put up a strong defense to prevent a conviction or for a lenient sentence, such as informal probation. Also, even if you are convicted, an attorney can help you obtain a clean slate by expunging the conviction from your record.
Revenge Porn Legal Defenses
Your defense attorney will evaluate your case and conduct an independent investigation to gather evidence to build a valid legal defense. The common defenses your criminal attorney will apply in your case, contingent on the circumstances, include:
- You Had Approval or Consent from the Alleged Victim to Disseminate the Explicit Material
You are guilty of committing revenge porn if you and the victim had an agreement that the explicit material shared or recorded consensually must remain confidential. Even if you obtained the material through consent, you are expected to keep it private. However, if the other party gives you permission to post or distribute the material, you are not guilty. Also, if the victim had already shared similar material, it means they did not regard the content as private, meaning you are not guilty of revenge porn for sharing the same material.
- You Published the Explicit Content by Mistake Without Intent to Harm
It is often hard for the prosecutor to establish your intent in the case of revenge pornography. Intent implies the mental state at the time of the crime. The prosecutor has to prove that you had the specific intention when you committed the offense. Establishing a defendant’s intent can be tricky, as it requires proving their state of mind and the possibility that they disregarded the likely consequences of their conduct. This could include a message sent to your ex-lover before the offense stating that you would publish explicit images and videos in the event of a breakup. If these circumstances exist and there is physical evidence of you threatening to distribute the content, it will be easy to prove intent.
However, when there is no proof to support the circumstantial argument, your attorney can argue that you posted the images by accident and had no intent to cause the alleged victim emotional distress. For example, you can say that you were posting non-explicit images but by mistake posted the explicit ones.
Additionally, you assert you were not aware that the publication of the explicit content would result in emotional distress for the victim; therefore, you lacked the criminal intent. You can argue that the victim had posted or shared the same material in the past, making you reasonably believe it would not cause any emotional distress if you shared the same.
Electronic devices can easily be hacked, giving another person access to your private information. In these circumstances, you can argue that someone accessed your phone or recording device without your consent and shared explicit material without your knowledge, leading to the charges.
- The Victim did not Suffer Severe Emotional Harm
For the court to deem your action as revenge porn, the prosecutor must demonstrate that the victim suffered severe emotional harm, which refers to distress that happens for a long time after the posting of explicit content. So, your attorney can argue that even though you posted the compromising material without the victim’s approval, the material did not cause the victim severe emotional distress because the victim knew it was a prank or believed you shared it with other people because you believed they would find it funny.
Also, because the prosecutor bears the burden of proof, they must show the victim suffered severe emotional distress because of your actions. If they cannot prove this element beyond a reasonable doubt, you are not guilty.
- The Alleged Victim Was Not Identifiable
The sexually explicit content shared without the consent of the victim must clearly depict the victim or make them identifiable. So, if there is any reasonable doubt that the person depicted in the explicit content is the victim, the court will drop the charges.
- False Accusations
Emotions run high in domestic violence cases. The victim of the abuse can accuse you of revenge porn to retaliate or punish you for the violence. They can do this by secretly using your phone to post or share explicit content of themselves so that they can accuse you of revenge porn.
Many arrests and charges are based on victim accounts. In cases of retaliation, the victim may falsely accuse the perpetrator of the crime, leading to arrest or charges. In other cases, they might mistake you for the person who posted the images because you are the only person who had access, even when someone else accessed your phone without your knowledge or consent. In all these cases, you can argue that the accusations are false and that you did not commit the crime.
However, you will need more than your word to prevent a wrongful conviction. Your attorney must prove that your phone was hacked or someone stole your recording device, distributing the explicit content. The attorney must look for evidence that shows the actual events that took place, or you could not have committed the crime.
The main defenses of revenge prone focus on casting doubts on the elements of the crime. So, you need an attorney who makes the jury or judge doubt the truth of the charges against you, leading to a charge reduction or dismissal, as the charges do not attain the evidentiary standard of beyond a reasonable doubt.
Reasons You Should Retain the Services of a Competent Attorney After a Revenge Porn Arrest
Hiring a skilled attorney when you learn of an impending arrest or after an arrest for revenge porn can significantly help your defense. Partnering with a competent attorney is advantageous for several reasons. These include:
- An attorney can request anticipatory bail if an arrest is imminent or bail after arrest, pending court hearings and trial.
- Dedicate maximum time and resources to your case, increasing the chances of a favorable verdict.
- An attorney will offer legal counsel in every stage of the case
- The attorney will conduct an independent investigation into the allegations to obtain new witness and expert testimony in your favor.
- The attorney can negotiate with the prosecutor early in the case to prevent charges or for charge dismissal.
- The attorney will defend you in the trial for a fair verdict
Partnering with a seasoned criminal defense attorney can help your case even when it seems hopeless. However, not every criminal attorney out there can streamline the criminal court process. So, when hiring, consider the following factors to pick the best attorney:
- Reputation and accreditation
- Years of experience
- Availability
- Qualification in the type of charge you face
- Communication skills
- Licensure
- Cost of legal counsel
If you consider these factors when hiring, you will find a reliable and seasoned attorney for your defense.
Find a Competent Criminal Defense Attorney Near Me
With non-consensual porn sites becoming prevalent, it can be confusing to face revenge porn charges, as the crime did not exist until 2013. So, when you are under investigation, arrested, or charged with a crime, you contact your attorney to understand the nature of the crime, possible penalties, and how to prevent an unfavorable verdict.
At CCLG: Los Angeles Criminal Attorney, we can offer legal guidance and defense if you face PEN 617(j)(4) charges. Contact us at 323-922-3418 for a no-obligation consultation.
