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New Jersey is leading the way in prosecuting the newest form of break-up vengeance—revenge porn. “Revenge porn” is the term used when an ex publishes or distributes intimate images—both videos and photographs—of a former partner that were originally intended for private viewing rather than public consumption. Criminal lawyers in New Jersey say that both their state and California have enacted legislation aimed at stopping revenge porn, but the laws may not make it much easier to prosecute these cases.
Even if the ex who published the revenge porn has been apprehended, lawmakers say that there is no real way to expunge the pornographic images from existence, given the scope of online social media websites. Revenge porn that goes viral on YouTube and other video-sharing websites can reach a large audience quickly, and victims have no way of retrieving those videos or preventing their private material from being viewed or shared further. These images or videos cannot be used to bring legal action against the website on which they have been posted either. The Communications Decency Act, 47, U.S.C. 23o(c)(1), states that no user or provider of a website or other computer service can be held liable as a publisher or speaker of any material provided by another party. In this case, only the poster of the revenge porn—the ex who actively published the sensitive material—can be charged with criminal activity.
In 2004, New Jersey lawmakers passed N.J.S.A. 2C:14-9(c), a statute that makes it illegal for an ex-partner to “disclose any image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact” without the other partner’s knowledge and consent. This disclosure is considered a criminal offense, and can be punishable by jail time or fines. The state law also narrowly defines “sexual contact” as any intentional touching or intimate action that has a goal of “degrading or humiliating the victim or sexually arousing or…gratifying the actor”—for example, any pornographic imagery that embarrasses the victim.
Now, criminal lawyers in New Jersey report that lawmakers have moved to increase these penalties for instances of “revenge porn,” citing the emotional distress and trauma inflicted on the victims. Content-based restrictions on speech—including publication—that is protected under the First Amendment is allowable when the statute or law is narrow enough to only restrict malicious behavior or intent. This restriction must also serve a “compelling state interest” in order to be considered a valid restriction of rights.
Despite these updated statutes, criminal lawyers in New Jersey say that courts will have a hard time prosecuting these cases, due to both the emotional trauma of a trial for the victim, and the requirements for proving the perpetrator’s guilt. The prosecutor will have to not only prove the lasting negative impact revenge porn has had on the victim, but also demonstrate that the content poster acted out of revenge and malicious intent, with an aim to degrade and harm his or her ex-partner. These issues, along with the potential violation of the poster’s First Amendment rights, could stall or even completely derail a revenge porn case before it comes to trial.
At New Jersey law firm Helmer, Conley, and Kasselman, PA, our criminal attorneys represent anyone who has been accused of retaliatory or vengeful criminal activity, or has a free speech or publication issue. Contact an HCK attorney for a free consultation today.
