Revenge Porn Laws

What is a revenge porn crime in Minnesota?

20060803_024533_cd03loveland

By Minnesota Revenge Porn Attorney Thomas C. Gallagher

Revenge porn refers to posting sexual images online without consent, with intent to injure that person’s privacy, name, or security.

In recent years States around the U.S.A. have enacted various criminal statutes.  Courts have struck down some of these new laws as unconstitutional. As a Minnesota Revenge Porn Attorney, Gallagher has challenged the constitutionality of Minnesota Statute 617.261.

Each time a court strikes down one of these laws, another legislature somewhere drafts a newer version to limit it.  These legislatures hope to satisfy the courts that the new version does not go too far.

They hope the next generation law can withstand Constitutional scrutiny by the courts.  These developments result in a complicated revenge porn law.

Minnesota Statute 617.261 is Minnesota’s main revenge porn law.  But other Minnesota laws exist that prosecutors can also use to prosecute.  And Minnesota revenge porn attorneys can use these other laws to defend.

Minnesota’s Nonconsensual Dissemination of Private Sexual Images law

In Minnesota, the main “revenge porn” statute is Minnesota Statutes §617.261 (2016), entitled “NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES.”  Subdivision 1 begins to define the crime:

“Subdivision 1.  Crime. It is a crime to intentionally disseminate an image of another person who is depicted in a sexual act or whose intimate parts are exposed, in whole or in part, when:

(1) the person is identifiable:

(i) from the image itself, by the person depicted in the image or by another person; or

(ii) from personal information displayed in connection with the image;

(2) the actor knows or reasonably should know that the person depicted in the image does not consent to the dissemination; and

(3) the image was obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.”

Intentional dissemination to a third-party required

The law requires that the defendant intentionally disseminated to third-parties.

Sexting:”  Sending an image of one of the two parties, to the other party is not dissemination to a third-party.

Defense:  If the recipient shows the image to others; that is not evidence of the sender intentionally disseminating to a third-party.  Minnesota Revenge Porn Attorney Thomas Gallagher has successfully defended one of these cases on those facts, with this defense.

Image must be identifiable as a specific person

The image must be identifiable as a specific person.  If it is not identifiable as a specific person, there is no defamatory effect and no crime under this statute.

Nonconsensual

If there was dissemination to third-parties, there must be evidence that the subject or model did not consent.  Of course, the burden of proving this with evidence is on the prosecution.

Knowing invasion of the reasonable expectation of privacy

In addition, the law requires a knowing invasion of a reasonable expectation of privacy to get the image.  This requirement contains two significant parts.

First, the accused must have known about the model’s reasonable expectation.

Second, the model must have actually had a reasonable expectation.  A good Minnesota Revenge Porn Attorney dissects evidence of reasonable expectations.

Content-based restrictions on speech

The image must be “of another person.”  The image must either depict a sexual act or expose “intimate parts” of another person.

Subdivision 7 (e) defines “Intimate parts:” “‘Intimate parts’ means the genitals, pubic area, or anus of an individual, or if the individual is female, a partially or fully exposed nipple.

Big brother is watching you
Big brother is watching you

Sometimes an area of the body claimed to be an “intimate part” is outside a fair interpretation of this definition.   The hip area or buttocks may not be “intimate parts,” for example.

The statute’s limiting criminality based on gender seems a blatant gender-discrimination and violation of constitutional principles of equality.

Laws with content-based restrictions on speech discriminate against speech based on the substance. But, a content-neutral law applies to expression no matter what its substance. The Supreme Court may strike down laws that discriminate on the basis of expression.  Minnesota Statute 617.261 is relatively new.  Minnesota Revenge Porn Attorney Gallagher views it is an unconstitutional, content-based restriction on speech.

Consent is a defense, after all

Another problem with this statute is Subdivision 3, which boldly asserts: “No defense. It is not a defense to a prosecution under this section that the person consented to the capture or possession of the image.

That directly contradicts another part of the law.  Subdivision 3 contradicts the elements the crime defined in Subdivision 1:  “(3) the image was obtained or created under circumstances in which the actor knew or reasonably should have known the person depicted had a reasonable expectation of privacy.”  

The prosecution must have evidence to prove that “the actor knew or reasonably should have known…” and that the “person depicted [actually] had a reasonable expectation of privacy.”

That means, of course, that it is a defense if “the person depicted consented to the capture or possession of the image.”  The rules of statutory construction require contradictions in criminal statutes to be resolved on the side of fairness to the accused.

An experienced Minnesota Revenge Porn Attorney must know the law and how to persuade the judge and jury with it.

Related laws, remedies and legal procedures

Not every case fits the “revenge porn” prototype.  The law does not require a revenge motive, for example.  Prosecutors charge many different types of cases under these laws.  Beyond the most specific law, Minnesota Statute 617.261, prosecutors can use other laws as well.

These include different criminal and civil statutes including Harassment, Stalking, and Coercion.  A person facing one of these charges need a good Minnesota Revenge Porn Attorney who knows these laws well.

Minnesota Statutes §609.748 HARASSMENT; RESTRAINING ORDER is a civil remedy statutes proving for a procedure to ask the court for a Harassment Restraining Order.  It specifically references “a single incident of nonconsensual dissemination of private sexual images under section 617.261.”  But is broader, inclusive of many forms of harassment.

Thomas Gallagher, Minnesota Revenge Porn Attorney
Thomas Gallagher, Minnesota Revenge Porn Attorney

Minnesota Statutes §609.749 STALKING is a criminal statute.  Courts often call it “Harassment-Stalking.”  Prosecutors use this law in situations that fit the “revenge porn” prototype.  And they use it in other situations as well.

Minnesota Statutes §609.27 COERCION is also a criminal statute.  Prosecutors can use it in a blackmail or extortion fact-pattern.

It specifically refers to Minnesota Statutes §617.261 “NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES;” and is a lesser-included offense.  See the separate page here about the Minnesota Coercion law.

Defending dissemination of private sexual images cases

Years of defending clients charged with these crimes reveal two categories of defenses.  Many defenses and defense efforts apply to every type of criminal case.  And as you can see from this discussion, we have many defenses specific to this type of case.

If you are facing one of these criminal charges, you need to know the law.  More importantly, you need a good Minnesota Revenge Porn Attorney who knows the law inside and out.  Defense Attorney Thomas C. Gallagher can help.

Question?  You can call Minnesota Revenge Porn Attorney Thomas C. Gallagher about it at 612 333-1500