Revenge Porn

You commit revenge porn or non-consensual pornography when you distribute sexually explicit images or videos of another without his/her consent. The content is typically shared online via social media, email, or other means, including text messages. Perpetrators often send explicit content with personal information, including the victim's name, address, or social media handles. Revenge porn sexually exploits and abuses victims. It can have devastating consequences for the victim, including distress, loss of employment, harassment, and damage to personal relationships.

The disgruntled ex-partner often targets the victim to humiliate or control them. In other cases, strangers gain access to the victim’s phone or laptop or take explicit photos or videos of the victim without consent. After that, they use the content to blackmail the victim.

Revenge porn can result in criminal charges and civil lawsuits. The California Criminal Lawyer Group offers legal representation for individuals facing criminal charges for revenge porn in Santa Ana. Below is a look at revenge porn under California law. 

Revenge Porn Under California Law

Under Penal Code 647(j)(4)(A), it is a crime to intentionally distribute or share an image or video of an identifiable person engaged in sexual conduct or with their intimate body parts exposed when the photo or video was taken under circumstances the victim believed to be private. Further, it is a crime to distribute the material without the victim’s consent and with the intent to cause harm or profound emotional distress.

Elements the State Must Prove in a Revenge Porn Case

Prosecutors bear the burden of proof. A jury will only find you guilty if prosecutors prove the following aspects of the crime:

• You deliberately distributed or shared a photo or video of an identifiable person engaged in sexual conduct or with their intimate body parts exposed.
• At the time the picture or video was taken, the victim had a reasonable expectation of privacy.
• You distributed the content without the victim’s consent.
• You distributed the content intending to cause grave emotional distress or harm to the person depicted in the image or video.

Let us look at each element in detail.

1. Intentional Distribution

An intent to distribute is challenging to establish. However, prosecutors rely on various pieces of evidence to show this intent. They include:

• Digital evidence — Prosecutors could rely on your conversations with other parties, including the victim. Expect the prosecution to present text messages, social media posts, or email exchanges to show that you distributed or shared the photograph or video. They could also use digital evidence to trace the source of the image or video and link it to you. Forensic experts could recover deleted files from your electronic devices. These files will provide evidence that you shared or distributed the explicit content.

• Witness testimony — Witnesses could testify that they saw you sharing or distributing the material. They could also claim that you admitted to doing so. The witness must show that you knew what you were doing when you shared or circulated the content and that you did so on purpose. If there is evidence that the distribution was accidental or unintentional, the jury will not convict.

2. Reasonable Expectation of Privacy

The circumstances of the case paint a picture of whether a reasonable expectation of privacy exists. The state will present evidence supporting the argument that the photos or videos were taken under a reasonable expectation of privacy, including:

• The victim’s testimony — The victim can testify that he/she believed they were in a private setting and did not expect to be recorded or photographed. They could also describe the location and circumstances in which the explicit material was taken.
• Forensic evidence — Forensic experts can recover metadata from the photo or video. This information will provide the location and time the image or video was taken. The experts will then examine the data to establish whether the victim had a reasonable expectation of privacy.
• Witness testimony — Witnesses present when the photo or video was taken could describe the location and circumstances when the photo or video was taken. Additionally, they could provide information about whether the victim had a reasonable expectation of privacy.
• Additional evidence, including the nature of your relationship with the victim — Prosecutors will consider it to determine whether the victim had a reasonable expectation of privacy.

Generally, you have a reasonable expectation of privacy in environments free from surveillance or recording, like a private bedroom or bathroom. 

3. Distribution Was Done Without The Victim’s Consent

The following are the likely sources of evidence prosecutors will present to the jury to prove the victim’s lack of consent.

• The victim’s testimony — The victim could testify that they did not permit the circulation of the photo or video. Further, they could assert that they were unaware that you had distributed the content until after the fact.
• Electronic evidence — Prosecutors could use electronic evidence to show that the victim did not consent to the image or video distribution.

If the victim agrees to the distribution of the content, you are not culpable.

4. Intent to Cause Harm

Intention is always difficult to prove. Thus, prosecutors opt to present various pieces of evidence to establish an intent to cause the victim harm. Some of the likely sources include the following:

• Victim’s testimony — Similar to the above elements, a victim’s testimony is pivotal in establishing an intent to cause harm. The victim could assert that you distributed the explicit content after threatening to do so.
• Electronic evidence — Your communications to the victim or other parties threatening to use the material to harm the victim will be introduced as evidence in your case.
• Witness testimony — Any individual party to your threats to harm the victim will testify. Their testimony could convince the jury of your guilt.

Defenses You Can Raise to Challenge Revenge Porn Charges

There are several defenses you can raise to challenge the prosecution’s case. The ideal defense strategy depends on the facts of your case. Here are a few examples of ideal defenses:

1. The Victim Gave Consent

Sometimes, the victim consents to the photo or video distribution, even if it is not explicit. The victim could have previously shared the image or video or permitted the defendant to take or distribute the image or video.

With several platforms paying for explicit materials, many individuals take and distribute nude photos and videos to these platforms or social media platforms for fame or monetary compensation. The alleged victims okay the distribution, turn around in case of a disagreement and claim to be victims of revenge porn. If this is your experience, this defense will be ideal.

The burden rests on showing that the victim consented to the image or video distribution.

For example, if the victim initially consented to the image or video being taken or shared but later withdrew consent, you could still be charged with the offense. Additionally, you can use this defense if the victim was under the influence of drugs or alcohol when he/she consented. However, you should assert that you reasonably believed the victim consented and were unaware of his/her intoxicated state. 

Moreover, the victim's consent must also be informed and freely given. There should be no evidence that you coerced or forced the victim to allow you to distribute the material. Further, if prosecutors present proof that the victim was unaware of the full extent of what they were consenting to, this defense could prove unsuccessful.

2. Lack of a Reasonable Expectation of Privacy

Revenge porn requires that the picture or video be taken under circumstances where the victim reasonably expected privacy. You should demonstrate that the victim did not have a reasonable expectation of privacy.

For example, there is no reasonable expectation of privacy if the photo or video was taken in a public park or crowded street. A similar expectation exists if the victim voluntarily poses for the shot or video in public. Additionally, if the alleged victim shared the image or video with others or made it publicly available, you can use this defense to fight the charges since the victim waived any expectation of privacy.

However, the "lack of reasonable expectation of privacy" defense is not always successful.

For example, it will be tough to argue that the victim did not have a reasonable expectation of privacy if the image or video was taken in a private location, like the victim's home or a hotel room. Additionally, a jury will likely convict you even if the photograph or video was taken in a public place and you distributed the content with the intent to cause profound emotional distress or harm to the victim.

3. You Were Falsely Accused

Cases of misidentification are possible in revenge porn proceedings. However, asserting that you are falsely accused requires presenting evidence to challenge the prosecution's case. This defense argues that you are factually not guilty of the crime because you did not commit the offense as alleged.

To raise this defense, you should provide evidence that questions the prosecution's case. You could argue that the alleged victim has the motive to make false accusations born out of revenge, jealousy, or a desire for attention. Your attorneys could also present evidence that you were not the person who distributed the image or video. Further, you were unaware that the person in the image or video did not consent to its distribution.

Another way of asserting this defense is by arguing that the alleged victim has a history of making false accusations or that there are inconsistencies in their story. Your attorney will claim the prosecution's evidence is unreliable or that the police investigation was flawed.

False accusations are tough to prove. You should present significant evidence to support your assertion of a false allegation. You must convince the judge or jury of your innocence for the courts to acquit you of the charges.

4. No Understanding or Agreement Not to Distribute

Prosecutors must prove that you circulated the explicit material without the victim’s consent and with the intent to cause serious emotional distress or harm. Only then will a jury find you guilty. However, if the victim did not explicitly state that they did not intend to distribute the material, you could argue that there was no understanding or agreement.

For example, if the victim shared an explicit photo or video with you before you shared it. However, the alleged victim did not raise any issues after finding out. You have no reason to believe he/she would object to the distribution if you distributed another video or photo that the alleged victim later shared. It is possible you had no reason to believe your actions were illegal then.

Additionally, if the victim had previously shared similar images or videos with you, you could argue that you had reason to believe that the victim consented to the distribution.

However, it is worth noting that this defense is not successful in all cases. If you knew or should have known that the victim did not want the image or video to be shared, you could be held criminally liable for your actions.

5. The Person in the Photos or Video is Not Identifiable

You could also call into question the individual's identity in the image or video and assert that it is not the alleged victim since the individual is not identifiable. One of the elements that prosecutors must prove is that the pictures or videos show an identifiable person. If your attorney can show that the person depicted in the images or videos is not recognizable, the prosecution will not have met its burden of proof.

This defense is particularly effective if the images or videos are blurry, pixelated, or distorted, making it difficult or impossible to identify the person depicted. The defense will argue that it is impossible to prove beyond a reasonable doubt that the person depicted is the alleged victim.

However, this defense is only effective if the prosecution cannot present evidence that helps to identify the person depicted in the images or videos. This includes testimony from witnesses who recognize the person or other evidence that shows the person's identity. The defense is less effective if the pictures or videos contain additional identifying information, like a name or social media handle.

Note: This defense only challenges one of the elements of the crime of revenge porn. The success of this defense will depend on the strength of the evidence and arguments presented by your attorney and the prosecution and the facts of the case.

6. Sharing the Image Did Not Cause the Alleged Victim to Suffer Emotional Distress

If the prosecution cannot prove that you shared the image or video with the specific intent to cause grave emotional distress or harm to the victim, you can argue that you did not commit the offense.

You could also argue that your actions did not cause profound emotional distress or harm. You could present evidence showing that the alleged victim suffered no emotional anguish. Alternatively, you could assert that the emotional distress suffered was not grave enough to meet the legal standard required for a conviction.

However, determining what constitutes "serious emotional distress" is a legal question that depends on the facts of your case. You need to provide evidence that the alleged victim did not suffer the required emotional distress, which can be difficult to meet.

Additionally, the defense cannot simply rely on the fact that the alleged victim did not suffer emotional distress. The prosecution should prove the other elements of the crime.

Penalties Under Penal Code 647(j)(4)(A)

Revenge porn is a misdemeanor. A conviction results in the following penalties:

• Up to six months in jail and
• $1,000 in fines.

On the other hand, convictions for a second or subsequent violation, or if the individual depicted in the video or photo was a minor at the time, result in the following penalties:

• Up to a year in jail and/or
• A maximum fine of $2,000.

Civil Lawsuits in Revenge Porn Cases

Revenge porn can also give rise to civil lawsuits. Victims can use civil action to seek restitution and other forms of relief for the harm caused by the distribution of explicit content. Several different types of civil lawsuits can be brought in response to revenge porn, including:

1. Invasion of Privacy

Invasion of privacy is a civil cause of action that allows individuals to seek damages for wrongful conduct that violates their right to privacy. Revenge porn can fall under the category of public disclosure of private facts, which is one type of invasion of privacy.

The California Invasion of Privacy Act (CIPA) was passed in 1967. The law provides individuals with a private right of action for various types of invasions of privacy, including:

• Intrusion upon seclusion — This happens when someone intentionally intrudes upon another person's solitude or private affairs in a way that would be highly offensive to a reasonable person.
• Appropriation of likeness — Appropriation arises when an individual uses another person's name, likeness, or identity for their commercial benefit without permission.
• Public disclosure of private facts — This disclosure arises when an individual publicly discloses confidential information about another highly offensive person and not of legitimate public concern.
• False light occurs when someone publicly portrays another person falsely or misleadingly, which is highly offensive to a reasonable person.

Under CIPA, individuals can bring a civil lawsuit against anyone who violates their privacy rights. If the court determines that a violation took place, the person who brought the case (the plaintiff) could receive damages. The award could include financial compensation and a court order to stop the offending behavior (injunctive relief).

The California Invasion of Privacy Act (CIPA) is considered one of the most extensive privacy laws in the country. Other states have used it as a blueprint to develop laws to safeguard people's privacy. It has been used in high-profile cases, like the celebrity photo leak scandal.

2. Intentional Infliction of Emotional Distress

Victims of revenge porn could bring a claim for intentional infliction of emotional distress. The lawsuit requires a showing that the defendant engaged in extreme and outrageous conduct that caused the victim severe emotional anguish.

3. Negligent Infliction of Emotional Distress

In some cases, victims of revenge porn could file a claim for negligent infliction of emotional distress. In this civil action, the alleged victim should show that the defendant's conduct fell below the standard of care and that he/she suffered emotional distress.

4. Copyright Infringement

The victim could hold the copyright to the image or video in question. He/she could bring a claim for copyright infringement against the person who shared or distributed it without their consent.

In civil lawsuits, victims can seek various remedies, including monetary damages for emotional distress, reputational damage, and other harm from revenge porn. They could also obtain an injunction to prevent further distribution of the photos or videos.

One of the notable civil actions relating to revenge porn is a $6.4 million judgment awarded to Jane Doe in 2014. The woman sued her former boyfriend, David K. Elam II, in the United States District Court in California to get him to stop distributing explicit material that involved her.

It is worth pointing out that criminal prosecution and civil lawsuits are independent. The alleged victim of revenge porn can seek civil action even if a jury finds you not guilty of the offense. Additionally, your conviction in a criminal proceeding will not impact the civil proceedings.

Find an Experienced Criminal Defense Attorney Near Me

Navigating revenge porn charges is challenging. The success of your defenses begins with the right hiring. Your pick for a criminal defense attorney should have experience and a proven track record, and we at The California Criminal Lawyer Group fit this profile. Call us today at 714-844-4151 if you or a loved one is facing revenge porn charges in Santa Ana. We will assess your situation and advise you on your legal options.