Revenge Porn Claims

20060803_024533_cd03lovelandA newer crime, revenge porn refers to a typical situation where a person posts sexually oriented images of a person online without their consent, with an intent to injure that person’s privacy, name, or security.  Various criminal statutes have been enacted by states around the U.S.A. in recent years, only to be struck down as unconstitutional violations of basic human rights.  Each time one of these laws gets struck down by courts for violating our Constitutional rights, another legislature somewhere has the opportunity to draft a newer version of the law in an attempt to limit it and satisfy the courts that the new version will not go too far, and perhaps withstand Constitutional scrutiny by the courts.

In Minnesota, the “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.”

The image must have been intentionally disseminated to third-parties.  “Sexting,” or otherwise sending, an image of one of the two parties to a communication to the other party would not be dissemination to a third-party.   If the person who received the image (of the receiving person) shows the image to others, that is not evidence that the sender intentionally disseminated the image to third parties.  We have successfully defended one of these cases on those facts, with that defense.

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.

If there was dissemination of an image 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.

In addition, the image must have been obtained via a knowing invasion of the reasonable expectation of privacy.  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.

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

“Intimate parts” is defined in Subdivision 7 (e)  “‘Intimate parts’ means the genitals, pubic area, or anus of an individual, or if the individual is female, a partially or fully exposed nipple.”  We have had cases where an area of the body claimed to be an “intimate part” turns out to be outside a fair interpretation of this definition, for example the hip area or buttocks.  The statute’s limiting criminality based on gender seems a blatant gender-discrimination and violation of constitutional principles of equality.

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 is in direct contradiction to the very elements of 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.

Related laws, remedies and legal procedures

Cases that fit the prototype fact pattern or do not but share some similarities have been and could be charged under different criminal and civil statutes including Harassment, Stalking, and Coercion.

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.

Minnesota Statutes §609.749 STALKING is a criminal statute, often referred to as the “Harassment-Stalking crime.”  This criminal statute could be used in situations that fit the “revenge porn” prototype, but many others in addition.

Minnesota Statutes §609.27 COERCION is also a criminal statute, that could be used in a blackmail or extortion fact-pattern.  It specifically refers to Minnesota Statutes §617.261 “NONCONSENSUAL DISSEMINATION OF PRIVATE SEXUAL IMAGES,” and so is a lesser-included offense.  See the separate page here about the Minnesota Coercion crime.

Question?  You can call Minneapolis Criminal Lawyer Thomas C. Gallagher about it at 612 333-1500.

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