Revenge Porn

Revenge porn is the sharing of explicit or intimate images or videos of an individual without his/her consent. Its purpose is to cause harm, embarrassment, or humiliation. This act involves disseminating private, sexually explicit materials, typically by someone with a previous relationship or a level of trust with the victim. The term "revenge" implies that the act serves as retaliation or punishment, often occurring after a breakup or as a means of exerting control over the targeted person.

The consequences of revenge porn extend beyond mere online harassment. It inflicts severe emotional, psychological, and social repercussions on the victim. The experience can engender feelings of shame, embarrassment and violate personal privacy. Furthermore, it can damage one's reputation, loss of employment opportunities, strained relationships, and potential legal entanglements. That is why Long Beach prosecutors aggressively seek convictions for revenge porn. You also need an aggressive defense attorney. The California Criminal Lawyer Group fits this description.

Here is a breakdown of the crime under Penal Code 647(j)(4)(A).

Revenge Porn Under California Law

PC 647(j)(4)(A) establishes the criminalization of distributing or electronically transmitting intimate images of another person without his/her consent, specifically to cause emotional distress.

Per the statute, an individual who deliberately disseminates:

• An image containing the intimate body part or parts of a recognizable individual.
• An image depicting the person involved in sodomy, sexual intercourse, sexual penetration, oral copulation, or engaging in masturbation, wherein the understanding or agreement between parties is that the image will stay private.

The distributor who possesses or should possess knowledge that such distribution will lead to substantial emotional distress, resulting in the depicted person experiencing said distress, shall be held accountable for disorderly conduct, which is categorized as a misdemeanor offense.

The elements prosecutors require to secure a conviction are derived from the statute’s definition. Prosecutors must prove the following:

• You intentionally distributed or electronically transmitted an image.
• The image depicted another identifiable person's intimate body part(s) (an individual’s anus or breasts) or showed them engaged in sodomy, sexual intercourse, sexual penetration, oral copulation, or masturbation.
• You distributed the images or had another person distribute the images.
• The distribution occurred when both parties agreed or understood that the image would stay private.
• You knew or should have known that distributing the image would cause grave emotional distress.
• The person depicted in the image suffered from distress.

Whereas the law stipulates the above as actions that could result in a conviction for revenge porn, the law provides certain exceptions. You will not face PC 647(j)(4)(A) violation charges in the following circumstances:

• If the distribution happens while reporting an illegal activity.
• If the distribution happens within a public legal proceeding.
• If the distribution complies with a court order or subpoena for use in a lawsuit.
• If the distribution is connected to a matter in the public's interest. Notably, the status of the depicted person as a public figure alone does not qualify the distribution as a matter of public interest or concern.

Let us look at the elements in detail.

• Intimate Body Part

According to PC 647 (j)(4)(A), an "intimate body part" is an area of the human body ordinarily concealed by clothing and commonly associated with acts of intimacy or sexuality. This includes:

1. Genitals.
2. Anus.
3. Buttocks.
4. Breasts, specifically any part below the top portion of the areola.

• Identifiable Person

An "identifiable person" is an individual recognizable or identifiable by others based on the image's content. This recognition stems from the person depicted possessing distinguishing characteristics or attributes that render them identifiable to individuals familiar with them.

Factors contributing to this identification include their facial features, distinctive physical traits, tattoos, unique attire, or any other markers specific to their identity.

Specifying an identifiable person ensures the prosecution pertains to individuals who can be readily recognized by others, as opposed to anonymous or fictional persons.

• Intentional Distribution

Intentional distribution is the deliberate and voluntary act of sharing or transmitting an image to another individual or group. Specifically, image distribution should be a purposeful action undertaken by the responsible party.

Intentional means that you carried out the act consciously and willfully rather than by chance or without intention. The prosecutors must show that you engaged in distributing the image, fully aware of its content and the potential consequences of your actions.

Intentional distribution also encompasses intentionally causing another individual to share or transmit an image. This entails purposefully motivating or exerting influence on someone else to engage in the act of sharing the photo. Various methods can be employed to achieve this, for example, sending the image through text messages, social media platforms, email, or other electronic devices. Alternatively, the picture could be intentionally shared in person or even posted on a pornographic website or similar platform.

Crucially, the key element lies in the active and deliberate behavior of the individual, as they prompt or encourage another person to share the image without the explicit consent of the depicted individual.

The Victim’s Right to Sue

Technology has seen the rise of deep fake videos. A deep fake video involves manipulating or altering a video using AI or machine learning techniques to replace a person's face with another's. By employing sophisticated algorithms, these videos analyze and map the facial movements and expressions of the target person onto the original video's source. This technology can create the illusion that the target person is engaged in actions or utterances they never actually performed. Particularly concerning is the misuse of deep fake videos in cases of revenge porn, where individuals' faces, often celebrities, are grafted onto explicit material without their consent.

The emergence of deep fake videos has sparked apprehension due to their potential for abuse and the ethical dilemmas they pose. They can be employed to disseminate false information, deceive individuals, harm reputations, or facilitate harmful activities like identity theft and harassment. Consequently, there is a growing demand for heightened awareness, regulation, and countermeasures to mitigate the potential risks of deep fake videos.

Assembly Bill 602 aims to address these concerns by providing legal recourse. Under this statute, individuals depicted in fake sex videos can pursue legal action against those who created or shared them. However, this right to sue is contingent upon the absence of consent from the victim regarding the creation or distribution of the video.

Potential Penalties if Convicted

Revenge porn is a misdemeanor violation. The crime is punishable by the following penalties:

• Up to six months in jail.
• Fines not exceeding $1,000, or both.
• Summary or misdemeanor probation instead of jail time.

The penalties increase to:

• Up to one year in jail.
• $2,000 in fines, or both.
• Summary probation.

If the victim was a minor or you have a prior conviction for revenge porn.

Defenses You Can Raise in a Revenge Porn Case

You can challenge the prosecution’s case by asserting the following defenses. Engage your attorney to identify which defense strategy best suits your case.

• The Victim Consented

In a revenge porn case, asserting consent centers around your claim that you acquired the explicit material with the alleged victim’s consent. Your defense team would argue that the individual willingly and voluntarily agreed to the distribution or creation of the material, effectively undermining any allegations of revenge porn.

It is necessary to present compelling evidence demonstrating the depicted individual's explicit agreement to the distribution or creation of the explicit material. This will help you establish the validity of the consent defense. This evidence includes various forms of communication, for example, written consent, text messages, emails, or any other relevant means that unequivocally indicate the individual's consent.

The consent defense can only be considered valid if the depicted individual provided their consent freely. This means they were fully aware of and understood the implications of their decisions. Their consent should be free of coercion, deceit, or improper influence. Moreover, the defense's strength could be compromised or rendered ineffective if it can be proven that the consent was subsequently withdrawn or if the distribution or creation of the material surpassed the limits initially agreed upon.

• You Did Not Intentionally Distribute the Material

When asserting this defense, you will claim that there was no purposeful or deliberate action on your part to distribute or disseminate the explicit material. Its objective is to challenge the accusation of intentional sharing or publicizing of the material, thereby disputing the claim of revenge porn.

You must provide evidence supporting the absence of intent or voluntary involvement in distributing the explicit material. This evidence could involve demonstrating that the material was shared without your knowledge, consent, or active participation. For instance, you could argue that someone else gained unauthorized access to the material and shared it without your permission or awareness.

Moreover, you could present evidence showing that you took reasonable measures to prevent the distribution of the explicit material. Alternatively, you could show that you promptly took action to remove or stop its dissemination once you became aware of it. This evidence could include records of communication, security measures implemented to safeguard the material, or any other relevant documentation that corroborates your claim.

Claiming accidental distribution under this defense poses challenges since this defense strategy primarily centers on the absence of deliberate actions. Rather than focusing on inadvertent occurrences, the defense argument seeks to establish that there was no intentional act of distributing the explicit material.

However, if you genuinely believe the distribution was accidental, providing compelling evidence to support this claim becomes crucial. This evidence includes demonstrating your lack of knowledge regarding the material's existence or showcasing that the distribution occurred due to unforeseen technical glitches or errors.

Even in cases of unintentional distribution, it is necessary to demonstrate that you took reasonable precautions to prevent the accident. For example, if the material was stored on a device or platform with inadequate security measures, it could weaken the accidental distribution defense.

• You Had No Intention of causing Emotional Distress

You can assert that you had no intention to cause emotional distress. This defense strategy aims to counter the accusation that your actions were motivated by a deliberate desire to inflict emotional harm or distress on the depicted individual through the distribution or dissemination of explicit material.

This defense approach requires compelling evidence demonstrating your genuine lack of intent to cause emotional distress. This evidence can take various forms, such as:

1. Documented communications.
2. Credible testimonies.
3. Any other relevant documentation supporting your contention that your actions were not driven by a purposeful intention to harm or distress the depicted individual.

The court will carefully examine the evidence and consider the circumstances surrounding the case, including the impact of your actions on the emotional well-being of the depicted individual. This helps the court determine the extent of your culpability.

• Lack of Emotional Distress

You can also demonstrate to the jury that there was no significant emotional harm or distress experienced by the alleged victim because of the distribution or dissemination of explicit material. This defense challenges the claim that the actions taken caused substantial emotional suffering.

Pertinent evidence supporting the argument that the depicted individual did not undergo considerable emotional distress includes testimonies, statements, or expert opinions that indicate the absence of significant emotional harm.

Other than the law and the available evidence, the effectiveness of this defense hinges on other factors, including the judge's interpretation of emotional distress. The court considers factors like the alleged victim’s reactions, behavior, and overall well-being when assessing the extent of emotional distress experienced.

• Lack of Identification

The defense of "lack of identification" in a revenge porn case contests the accusation that the explicit material accurately identifies the alleged victim. This defense asserts uncertainty or ambiguity regarding the individual's identity. This approach challenges the notion that you intentionally targeted and disseminated explicit material specifically depicting them.

Courts examine elements like facial recognition technology, distinguishing features, or any other pertinent information to assess the level of certainty regarding the depicted individual's identity. You can demonstrate the lack of clear identification or uncertainty surrounding the depicted individual's identity. You do so with the help of expert opinions, testimonies from relevant parties, or any other documentation that supports the argument that the individual's identity is inconclusive or cannot be definitively determined.

• No Agreement Not to Distribute the Explicit Material

While asserting the lack of an agreement not to distribute explicit content, you argue that there was no explicit agreement or understanding between you and the alleged victim regarding the prohibition of distributing the material. This defense challenges the accusation of violating any preexisting agreement or understanding regarding disseminating the material.

You must provide evidence that proves the absence of any agreement or understanding explicitly forbidding the distribution of the explicit material. This evidence can include written or verbal communications, records of conversations, or any other documentation supporting the claim that no agreement or understanding existed.

It could not be assumed that the person who consented to the sexual pictures automatically agreed to their distribution if there was no explicit discussion. If you were aware or should have been aware that distributing the photos would cause significant emotional distress, it cannot be presumed that the individual consented to the dissemination.

For example, sharing the pictures with the person's friends, even without prior discussions about distributing the images, could result in severe emotional turmoil.

However, if the person you photographed specifically consented to specific individuals viewing the pictures, and you only shared them with those individuals as agreed upon, you would comply with the established understanding.

For example, the alleged victim could consent to a third party using the pictures for professional photography. If you then shared the images exclusively with those designated individuals, but they subsequently distributed the photos to others despite knowing it would cause profound emotional distress to the depicted individual, you would likely not be held accountable for any criminal wrongdoing. In this scenario, you reasonably assumed the third party would not further distribute the images.

• You Distributed the Material While Reporting an Unlawful Act

Asserting that the distribution of explicit material was solely to report or expose an unlawful act committed by the depicted individual challenges the accusation of revenge porn by presenting a legitimate reason for sharing the material. To prove this defense, you can consider the following strategies:

1. Establishing a clear connection by providing evidence that directly links the distribution of the explicit material to the reporting or exposure of the depicted individual's unlawful act. This can include documenting efforts to gather information, communicating with relevant authorities or organizations, or engaging in investigative activities to uncover and report illegal actions.
2. Maintaining a record trail, which requires keeping detailed records of actions, including correspondence, communications, or documentation supporting the intent to report the unlawful act. This could include emails, messages, timestamps, or other evidence demonstrating active involvement in reporting the crime or criminal behavior.
3. Documenting the unlawful act by gathering evidence substantiating the existence of the depicted individual's wrongful act. This evidence can include photographs, videos, witness testimonies, or any relevant documentation that supports the claim and strengthens the connection between the explicit material and the unlawful act.
4. Maintaining transparency and cooperation with law enforcement agencies, legal professionals, or other relevant parties investigating or prosecuting unlawful acts. Being transparent about actions, intentions, and evidence demonstrates a commitment to reporting criminal acts and distinguishes actions from those associated with revenge porn.
5. Consulting with legal professionals or authorities can help seek advice or guidance to establish the credibility and legitimacy of intentions and actions. Legal professionals, law enforcement agencies, or relevant organizations addressing the specific unlawful act can provide valuable input.

However, exercise caution when relying on this defense. Simply claiming intent to report an unlawful act may not always be sufficient. Engage your attorney to assess the viability of this defense in your situation.

Offenses Related to Revenge Porn

• Peeking While Loitering

Peeking while loitering, as defined by California Penal Code Section 647(i), involves the act of remaining, lurking, or lingering on someone else's private property without a legitimate purpose while intentionally peeping. The law also punishes people who observe through windows, doors, or other openings in a structure, aiming to invade someone's privacy.

A jury will only find you guilty of peeking while loitering if the prosecution proves beyond a reasonable doubt that:

1. You engaged in the activities above on another person's property.
2. You had no lawful reason or business to be there.
3. You intended to invade the privacy of another individual by peeping or looking through openings in a building.

If convicted of peeking while loitering, you could face penalties including:

1. Incarceration for up to 6 months and/or.
2. A maximum fine of $1,000.

• Illegal Invasion of Privacy

Under Penal Code Section 647(j), the "criminal invasion of privacy" offense involves the unlawful entry or remaining in a person's dwelling or private place without his/her consent, intending to physically invade their privacy. This statute distinguishes itself from another invasion of privacy laws by explicitly addressing the act of physically intruding into someone's private space.

Under the statute, it is prohibited to invade someone's privacy by employing various methods, which include:

1. Utilizing a device to observe or spy on someone through a hole or opening, for example, binoculars, telescopes, or any other tool that enables visual access.
2. Covertly capturing images or videos of someone without his/her consent using a concealed camera, specifically targeting private body areas typically covered by clothing.
3. Placing a hidden camera in a private room, for example, a bathroom, bedroom, or changing room, to secretly observe or record a person's body without their knowledge or consent.

The focus of the statute is on the act of invading someone's privacy. It does not necessitate the display, distribution, or specific use of any obtained images or recordings. Thus, the invasion of privacy through the actions above is deemed unlawful, regardless of whether the acquired materials are disseminated or shared with others.

You may be convicted of a misdemeanor if found guilty of criminal invasion of privacy. Convictions can result in:

1. A sentence of up to 6 months in county jail.
2. A fine of up to $1,000.

Find a Pasadena Criminal Defense Attorney Near Me

Considering the complexity of revenge porn cases and their potential legal consequences, it is best to seek the counsel and expertise of a proficient defense attorney specializing in this area. Engaging the services of a qualified attorney will enable you to obtain tailored guidance and assistance that aligns with your unique circumstances. By doing so, you can effectively navigate the complex legal process and make informed decisions throughout your case.

Contact the California Criminal Lawyer Group if you or a loved one is facing revenge porn charges in Long Beach. Contact us at 562-966-8120.