State House Sound Bites

Capitol reporter Mary Wilson covers Pennsylvania politics and issues at the Pennsylvania state capitol.

"Revenge porn" bill advances, but questions remain

Written by Mary Wilson, Capitol Bureau Chief | Jan 14, 2014 7:08 PM
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Photo by G.R. Wilson


A state Senate committee has approved a measure to criminalize what's known as revenge porn - the posting of nude or sexual images of people online, often by ex-partners.

Even if the bill becomes law, questions remain about the effectiveness and constitutionality of such measures.

Only New Jersey and California have signed laws to ban revenge porn. Perpetrators run the gamut, from one-time posters to the (recently arrested) entrepreneur who ran website that solicited naked photos and charged a fee for their removal.

Pennsylvania's current harassment law hasn't given the victims of such harassment any legal recourse in such circumstances, according to Sen. Judy Schwank (D-Berks), who sponsors the revenge porn ban.

"By passing this legislation, we'd be able to ensure that we'd at least deter this kind of behavior, or prosecute individuals that try to harm people in this way," Schwank said Tuesday, after the Senate Judiciary Committee voted to send her bill to the full Senate.

But some legal experts say it's not clear that the laws against revenge porn in New Jersey and California have led to successful prosecutions. Photos that have been posted once and removed can appear again on cached websites. Does the law allow for photos taken by the person shown in them?

What about the tricky job of proving that a perpetrator has criminal intent?

Intent isn't an issue in New Jersey's 2003 law, which made it a crime to publish naked or sexual photos of someone without his or her permission. But California's 2013 law made such an activity a crime only if the perpetrator intends to cause "serious emotional distress."

The closest that Pennsylvania's current law comes to outlawing revenge porn is in the criminal code's section on harassment. One of the categories of harassment is communicating "to or about such other person and lewd, lascivious, threatening or obscene words, language, drawings or caricatures." Schwank says it's not enough to prosecute someone for posting naked photos of an ex in order to tarnish his or her reputation.

Schwank's proposal defines revenge porn as having "no legitimate purpose and with the intent to harass, annoy or alarm the person depicted."

Note the intent language: the threshold it creates is not as high as what's in California's law. But Schwank still acknowledges it may be tough to prove in court.

"I think, well, that remains to be seen how we'll be able to prosecute these cases," said Schwank.

Privacy advocates, meanwhile, caution the difficulty of criminalizing revenge porn without restricting free speech. The American Civil Liberties Union of Pennsylvania is taking a neutral position on Schwank's measure.

Published in State House Sound Bites

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