Revenge Porn

California Penal Code section 647(j)(4)

Specifically, you can be prosecuted for this Pen. Code violation if:

1. you willfully distributed the image(s) of the sexual organ(s) of the purported victim, or of that person engaged in any manner of sexual act;
2. even if the purported victim consented to the videotaping or photographing, so long as he or she believed that the footage or images would remain private, this statute is invoked;
3. you knew or should have known that the distribution of these images would cause the purported victim serious mental suffering; and
4. he or she did in fact suffer serious mental suffering.

See leginfo.legislature.ca.gov.

As mentioned above, the prosecutor does not need to prove you acted out of vengeance; merely that you intended to cause the victim severe emotional distress.

It should go without saying that if you’re a defendant in a revenge-porn case, you should consider yourself lucky that the current law only categorizes this crime as a misdemeanor. However, in light of the recent rise in these types of offenses, in all probability the law will eventually include felonies in the most egregious cases. (By contrast, New Jersey, which passed America’s first anti-revenge porn law in 2003, prosecutes this crime as a felony.) But as discussed below, this law will soon change.

Convictions and Sentencing Terms for Domestic Violence – Revenge Porn

Unlike other misdemeanors, where you can get up to a year in the county jail, the maximum jail sentence for a revenge porn conviction under Pen. Code § 647(j)(4) is “only” six months. Alternatively, or in addition thereto, you may also face a thousand-dollar fine, plus any proscriptions the judge orders as part of any (informal) probationary term (which would typically be three years’ duration).

If you are/were a minor at the time of the alleged violation, then your maximum jail sentence and fine could both double. Pen. Code § 647(k)(2).

Defenses to Domestic Violence – Revenge Porn

The identity of the purported victim is not readily apparent from the uploaded images

In order for the alleged violation to be prosecutable, the purported victim must be “identifiable” in the sexually explicit images. Thus, if his or her face is hidden, obscured or otherwise not clearly depicted, then you should not be convicted of this crime.

You did not deliberately upload the photos to the internet or to any social media account

If you accidentally or otherwise unintentionally did so, then you lacked the requisite mindset (also known as specific intent, mens rea or “scienter”) to be criminally culpable.

The body parts depicted in the images are not those proscribed by the revenge porn statute

Penal Code § 647(j)(4)(C) specifically identifies the intimate body parts that trigger this law as follows:

1. any part of the male or female genitalia;
2. the rectum; or
3. any part of a woman’s breasts beneath the upper part of the areola.

Thus, any other part of the human anatomy will not be actionable.

Codified exceptions in the revenge porn criminal code

Even if all of the foregoing elements are met and proven at trial, Pen. Code § 647(4)(D) nevertheless excuses you if:

1. you distributed the images as part of a criminal complaint you’re making to the police (either as the victim or a witness);
2. you distributed the images to comply with a court order or subpoena as part of civil or criminal litigation; or
3. you distributed the images as part of a legally sanctioned public hearing (such as open hearings dealing with a local or state bill or law).

Any agreement to allow distribution to any third party, regardless of how limited, negates privacy

According to Penal Code § 647(j)(4)(A), the images must have been photographed or filmed pursuant to an agreement – whether implied or clearly understood, and whether orally or in writing – between you and the purported victim that said images would “remain private”.

The legal definition of the term “private” refers to a transaction, communication, agreement or understanding between two or more private individuals, as opposed to any third parties/members of the public. See thelawdictionary.org.

Accordingly, if you and the purported victim had an agreement or understanding – regardless of how limited in scope or duration – that the images would be distributed to any third party, then by definition that agreement or understanding could not have been characterized as “private”.

For example, supposed you, as a professional photographer, videotaped the purported victim, an adult film actress, for the mutually-agreed-upon purpose of distributing to her highest-paying client (singular) on www.onlyfans.com. Maybe she even signed a release for that highly restricted purpose.

And then suppose you breached that agreement by distributing those images to any number of other third parties. While the purported victim could sue you in civil court for doing so, she could not press charges against you for revenge porn because the original agreement literally involved distribution to a third party.

In other words, since the understanding and agreement was never that the images would remain private, you would not be criminally culpable for this offense.

You did not reasonably believe the uploading of nude photos would cause severe emotional suffering

If the purported victim was, again, an adult film star whose sexually explicit videos were widely available on major pornographic sites on the internet, and you non-consensually posted video you shot on, say, your own newly-created website, a jury might agree that you should not have expected your act to bring him or her significant mental suffering.

On the other hand, this defense would require a highly skilled practitioner because you obviously never want to shame a purported victim. With that in mind, this defense could nevertheless prove effective in negating that critical element of the statute.

Your uploading did not actually cause the purported victim severe emotional distress

In the same previously described scenario, suppose the purported victim was furious with you because she felt you infringed on her copyrighted material or “brand” by posting the non-consensual material. No reasonable jury would ever find that he or she suffered emotional distress from merely incurring a financial loss.

You did not actually know the purported victim and, therefore, could not have wanted to harm him/her

If you had never had personal contact or otherwise been familiar with the purported victim, a jury would be hard pressed to believe that you nevertheless wanted to cause that person emotional or psychological harm.

For example, if you were a website operator who merely wanted to profit financially from the revenge porn, the prosecution would be unable to prove that requisite element of the statute.

Probable Amendments Next Year to California’s Current Revenge Porn Law

California’s current anti-revenge porn law is surprisingly lenient, at least in some cases, but that is certainly going to change by next year.

Specifically, on February 4, 2020, lawmakers introduced a new bill – Assembly Bill number 2065 – which would not only escalate the same offense to a felony charge (with potential prison time), but would significantly expand the current statute so that anyone along the chain of distribution who knowingly uploaded or passed along the non-consensual explicit material could also be charged with a felony.

It will even make someone who merely threatens to upload such material criminally culpable for a misdemeanor under certain circumstances. Finally, in the most extreme cases, a conviction under the new law could even result in you having to register as a sex offender.

Finally, the new law would criminalize – for the first time – what is known in the online pornography world as a “deep fake”, i.e., sexually explicit videos of adult film actresses who closely resemble real-life Hollywood movie stars, and wherein the video titles actually claim that the actresses are these stars. (Alternatively, deep-fake video producers use cutting-edge technology to make the film actresses resemble said movie stars.)

The new law, which is probably going to pass and, indeed, but for COVID-19 shutdowns would have been voted on months ago, will be codified as California Penal Code section 274.

See leginfo.legislature.ca.gov. See also sacbee.com.

Clearly, the bill’s backers hope that escalating the seriousness of revenge porn will result in state and local District Attorney’s offices and law enforcement agencies re-prioritizing suspects as potential sexual predators (which are always tempting prosecution targets for obvious reasons).

Since no specific prison term is identified in the proposed new law, then according to California Penal Code section 422, any such term will be set according to California Penal Code section 18 (prison term for any felony conviction under a statute which does not explicitly state the length of such a sentence) as follows:

1. sixteen months;
2. two years; or
3. three years.

See: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=18.

Examples of Domestic Violence – Revenge Porn – Misdemeanor Charges

Los Angeles resident is the first person in California to be convicted under the new revenge porn law

Although the state’s revenge porn law was passed in early October 2013, it would take exactly fourteen months before a suspect was actually convicted of that offense.

Specifically, on or about December 3, 2014, Mr. Noe Iniguez, an LA resident, was convicted of violating Pen. Code § 647 and was sentenced to a year in jail – six months for that misdemeanor, as well as six more months for violating a restraining order the victim had previously obtained against him.

The entire ordeal started in late 2011 (three years prior to his conviction) when Iniguez’s romantic partner dumped him. According to the LA Co. City Attorney’s Office which prosecuted him, he spitefully posted nude photos of her on her boss’s social media account, as well as sexually derogatory slurs.

See latimes.com.

Simi Valley man faces four-and-a-half years behind bars for revenge porn and extortion

On or about February 1, 2017, Simi Valley PD arrested local resident Yair Velazquez for suspicion of violating the revenge porn law by transmitting sexually explicit images to the suspect’s social acquaintances and colleagues.

According to authorities, he did so because she had spurned his romantic entreaties one year earlier. According to authorities, twelve months earlier, the woman had broken off their relationship, at which point he began using those same photos – which he threatened to publicly disseminate – to force her to have sex with him. Finally, in January 2017, the victim refused to have any further contact with him.

In addition to being charged with misdemeanor revenge porn (P.C. section 647(j)(4)), which, again, currently entails a maximum jail sentence of (only) six months, Velazquez was also charged with a single count of extortion under California Penal Code section 518 (see: https://codes.findlaw.com/ca/penal-code/pen-sect-518.html), which is always charged as a felony with a maximum four-year-prison term. Thus, if convicted of both charges, he would face up to 4.5 years of incarceration.

See latimes.com.

Example of a Domestic Violence – Revenge Porn – Felony Case

“Online revenge porn” case results in an almost-forty-year prison term

On or about February 16, 2017, in the culmination of what the LA Co. DA’s Office referred to as one of the biggest “revenge porn” cases ever prosecuted in California, Rosemead resident Cesar Davila was sentenced to four months shy of forty years in state prison. In addition to almost four decades in a state penitentiary, Davila was also hit with a lifetime sex-registration order.

Davila had pled nolo contendre the day before to almost forty felonies, most of which involved distribution and possession of child pornography. He admitted as part of his no-contest plea that he had extorted underage females (some as young as twelve) over a four-month period in early 2015 to provide him with explicit images of themselves after meeting them on the internet. He lured them in by posing as a model scout and promising to get them professional gigs.

But first, he explained to them, they had to send him partially nude photos. Once they did so, he then threatened to expose those photos to their relatives and associates unless they provided him with more explicit images.

Although Davila’s case could be categorized as an example of revenge porn, the prosecutors clearly decided not to include that misdemeanor count because of its de minimus punishment

See da.lacounty.gov.

Example of an Alleged Domestic Violence – Revenge Porn Incident Involving Celebrities

The alleged revenge porn incident involving Rob Kardashian and Blac Chyna

This has arguably been the most high-profile revenge porn “case” since California’s revenge porn law was enacted seven years ago (as of 2020). We put that word in quotes because it never actually materialized into the LA County City Attorney’s Office – which prosecutes only misdemeanors – actually filing charges against reality TV star Rob Kardashian. This was notwithstanding the fact that social-media model Blac Chyna was able to obtain a TRO against him based on this incident on or about July 6, 2017.

This ordeal began several days earlier after Kardashian allegedly uploaded graphic photos of Chyna (the mother of his child and until then-recently his live-in girlfriend) to his own various social media accounts. Kardashian allegedly did so because he believed she had been unfaithful to him. (Chyna, for her part, claimed they had split up months earlier and, therefore, was single at all relevant times.)

Oddly (or perhaps not), Chyna apparently never filed a criminal complaint against Kardashian with any law enforcement agency. (This was confirmed by a spokesperson for the LA Co. Sheriff’s Dept.) Maybe she did not do so because he quickly removed the images from his SM accounts. In any event, in his own defense, Kardashian indicated he had not originally taken the photos, and explicitly claimed Chyna had transmitted them to him first.

See latimes.com.