The inadequate state revenge porn law

March 1, 2017

Revenge porn, also known as cyber rape, sexual cyber harassment, sextortion, or cyber exploitation, is when an individual or a partner who has been in an intimate relationship has nude or sexual photos or videos posted on the internet or websites that are designed to blackmail, humiliate, intimidate or exploit them for breaking up with them, or to control them. They are posted on these sites without the victim's consent, and experts maintain it is a form of control and abuse. 

Unlike traditional pornography, it is not meant as a form of entertainment. It is a form of domestic and sexual abuse. Often personal information is posted along with the images, such as the victim's name, home address, workplace, and links to social media profiles, so that the viewer of the revenge porn can identify the victims – exposing them to workplace discrimination, cyberstalking, further harassment, or even physical attacks.

Revenge porn is meant to hurt and shame the victim. It succeeds by doing both. It also can haunt them for a long time, lingering on the internet, often in perpetuity. While victims are most frequently female, in their twenties and thirties, they can be of any age, and some victims are male. 

Now, since April 2016, revenge porn is also a misdemeanor criminal offense. But it's one without as much teeth as there should be for such a heinous act of cyberbullying against another human being. Which is leading prosecutors to charge perpetrators of revenge porn under other codified offenses, such as stalking or posting through electronic means, both of which are five-year felonies.

Michigan's revenge porn law is a misdemeanor, punishable by not more than 93 days in jail and or a maximum fine of $500. A second and subsequent violation would be a misdemeanor punishable by imprisonment for not more than a year and/or a maximum fine of $1,000. As Oakland County Chief Deputy Prosecutor Paul Walton said, “We may use this law, or we may not, because revenge porn is a misdemeanor, and it's terribly shocking to the victim. By the time they get to the point to contact the police and prosecute, they come in as true victims. They're humiliated. They're devastated. Then they learn it's a misdemeanor, and their ex, who did this to them, is going to walk out the same door as they are. It's terribly disheartening.”

Revenge porn is a new category of cyber transgressions that the law, both criminal and civil, is working to catch up with. In 2013, only two states had revenge porn laws. Today, 34 states do. As a criminal offense, Michigan's law was a bit of a communal cooking pot stew, with state legislators coming together in the last session, after a few failed efforts, to finally get a law passed. Its sponsors, Sen. Rick Jones (R-Grand Ledge) and Sen. Steve Bieda (D-Warren), worked across the aisle, with their associates in the state House never far from their minds. Jones said he made the compromise to make it a misdemeanor in order to get it passed in the state House of Representatives, feeling the $500 fine would make defendants think twice about posting the images. They also had to consider the ACLU, which looks to question infringements on Americans' right to free speech. 

While Arizona's revenge porn law has been ruled unconstitutional, Michigan's ACLU worked with state legislators to help craft a law which would stand up to constitutional scrutiny. While the ACLU said they did not support the law, they were neutral on it – in essence endorsing it. Yet, it left the law a bit of a shaved dog – it can still bark, but no one takes it seriously.

So everyone involved in making the law came away happy – except the victims and the prosecutors working to protect them.

A federal law is needed to provide universal protection to victims of revenge porn, to outlaw any and all posting of images without someone's consent. An effort in 2016, the Intimate Protection Privacy Act, spearheaded by U. S. Rep. Jackie Spear of California, died with the last Congress. 

In the meantime, it is left to prosecutors and the civil courts to find stronger remedies for those whose privacy and intimacy have been violated.

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