Skip to main content

'Revenge porn' should be a crime in U.S.

By Danielle Keats Citron, Special to CNN
updated 3:49 PM EST, Thu January 16, 2014
STORY HIGHLIGHTS
  • Danielle Citron: "Jane's" ex posted nude photo on revenge porn site with contact info
  • Citron: Women harassed, lose jobs, stalked as photos posted without permission go viral
  • Citron: Nonconsensual disclosure of naked images needs to be criminalized

Editor's note: Danielle Keats Citron is the Lois K. Macht Research Professor and professor of law at the University of Maryland Francis King Carey School of Law. She is an affiliate scholar at the Stanford Center on Internet and Society and an affiliate fellow at the Yale Information Society Project. She is writing a book on online harassment, which will be published by Harvard University Press. Follow her on Twitter.

(CNN) -- A new law in Israel makes it a sex crime to post sexual pictures or videos to the internet without the consent of the person featured in them. We need to follow that example.

Revenge porn can ruin a person's life. A single post can go viral. For example, in the United States, "Jane" allowed her ex-boyfriend to take her naked photograph because, he assured her, it would be for his eyes only. After their breakup, the man betrayed her trust.

On the revenge porn site UGotPosted, he uploaded her naked photo and contact information. Jane received calls, e-mails, and Facebook friend requests from hundreds of strangers, many of whom wanted sex.

Danielle Keats Citron
Danielle Keats Citron

After the site refused to take down the post and the anonymous calls and e-mails intensified, she turned to law enforcement. According to the officers, nothing could be done because her ex had not engaged in a harassing "course of conduct," as required by criminal harassment law, and because he had not explicitly solicited others to stalk her.

Criminal law should have a role in deterring and punishing revenge porn. It's not new that certain types of privacy invasions are crimes. Many states prohibit the nonconsensual taking of sexually explicit images -- the disclosure of someone's naked images should be criminalized as well.

Only California and New Jersey have laws against turning people into objects of pornography without their permission -- although a huge loophole in California allows the posting of "selfie" images and only applies to photos posted by the photographer.

Revenge porn and its ilk raise the risk of offline stalking and physical attack. Fear can be profound. Victims don't feel safe leaving their homes. Jane, who is a nurse, did not go to work for days. As many victims have told me, they struggle especially with anxiety, and some suffer panic attacks. Revenge porn victims withdraw from online engagement, shutting down their social media profiles and blogs to prevent strangers from finding them online. They cannot participate fully in our networked age.

The professional costs of revenge porn are steep. Because searches of victims' names display their naked images, they lose their jobs. Schools have fired teachers whose naked photos appeared on revenge porn sites. A government agency terminated a woman's employment after a co-worker circulated her nude photograph to colleagues.

Making 'revenge porn' illegal
Women sue revenge porn website
'Revenge porn' site founder defends site

Victims may be unable to find work at all. According to a 2009 Microsoft study, more than 80% of employers rely on candidates' online reputations as an employment screen. Common reasons for not interviewing and hiring applicants include concerns about their "lifestyle," "inappropriate" online comments, and "unsuitable" photographs, videos, and information about them.

Recruiters don't contact victims to see if they posted nude photos of themselves or if someone else did in violation of their trust. The simple but regrettable truth is that after consulting search results, employers don't call revenge porn victims to schedule an interview or to extend offers. It's just seen as good business to avoid hiring people whose search results would reflect poorly on them.

Revenge porn is a harmful form of bigotry and sexual harassment. It exposes victims' sexuality in humiliating ways. Their naked photos appear on slut shaming sites. Once their naked images are exposed, anonymous strangers send e-mail messages that threaten rape. Some have said: "First I will rape you, then I'll kill you." Victims internalize these frightening and demeaning messages.

New Jersey is the only state to make it a felony to disclose a person's nude or partially nude images without that person's consent. In California, it's a misdemeanor. The New Jersey statute is a helpful model for states that are considering proposals to criminalize revenge porn. Congress should amend the federal cyberstalking law, 18 U.S.C. ยง 2261A, to cover the use of any interactive computer service to produce or disclose a sexually graphic visual depiction of an individual without that individual's consent.

What about First Amendment objections to legislative proposals to criminalize revenge porn? A narrowly crafted criminal statute like New Jersey's can be reconciled with our commitment to free speech. First Amendment protections are less rigorous for purely private matters because the threat of liability would not risk chilling the meaningful exchange of ideas.

Listeners and speakers have no legitimate interest in nude photos or sex tapes published without the subjects' permission. That online users can claim a prurient interest in viewing sexual images does not transform them into a matter of legitimate public concern. Nonconsensual pornography lacks First Amendment value as a historical matter, and could be understood as categorically unprotected as obscenity. Although the Court's obscenity doctrine has developed along different lines with distinct justifications, nonconsensual pornography can be seen as part of obscenity's long tradition of proscription.

Criminalizing revenge porn is a crucial step in protecting victims from real and profound harms to their physical, emotional, and financial health and safety. It would deter damaging privacy invasions and send the powerful message that posting someone's most private moments, most often in a breach of their trust and without their permission, is unacceptable.

That lesson needs to be repeated early and often before online users, especially young people, think that shaming and terrorizing individuals is an acceptable practice. We need a "cyber civil rights" agenda to combat bigoted online abuse. The criminalization of nonconsensual disclosure of someone's naked images is an important part of that agenda.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Danielle Citron.

ADVERTISEMENT
Part of complete coverage on
updated 11:30 PM EST, Sun December 28, 2014
Les Abend: Before we reach a conclusion on the outcome of AirAsia Flight QZ8501, it's important to understand that the details are far too limited to draw a parallel to Flight 370
updated 8:27 PM EST, Fri December 26, 2014
The ability to manipulate media and technology has increasingly become a critical strategic resource, says Jeff Yang.
updated 11:17 AM EST, Fri December 26, 2014
Today's politicians should follow Ronald Reagan's advice and invest in science, research and development, Fareed Zakaria says.
updated 8:19 AM EST, Fri December 26, 2014
Artificial intelligence does not need to be malevolent to be catastrophically dangerous to humanity, writes Greg Scoblete.
updated 10:05 AM EST, Fri December 26, 2014
Historian Douglas Brinkley says a showing of Sony's film in Austin helped keep the city weird -- and spotlighted the heroes who stood up for free expression
updated 8:03 AM EST, Fri December 26, 2014
Tanya Odom that by calling only on women at his press conference, the President made clear why women and people of color should be more visible in boardrooms and conferences
updated 6:27 PM EST, Sat December 27, 2014
When oil spills happen, researchers are faced with the difficult choice of whether to use chemical dispersants, authors say
updated 1:33 AM EST, Thu December 25, 2014
Danny Cevallos says the legislature didn't have to get involved in regulating how people greet each other
updated 6:12 PM EST, Tue December 23, 2014
Marc Harrold suggests a way to move forward after the deaths of NYPD officers Wenjian Liu and Rafael Ramos.
updated 8:36 AM EST, Wed December 24, 2014
Simon Moya-Smith says Mah-hi-vist Goodblanket, who was killed by law enforcement officers, deserves justice.
updated 2:14 PM EST, Wed December 24, 2014
Val Lauder says that for 1,700 years, people have been debating when, and how, to celebrate Christmas
updated 3:27 PM EST, Tue December 23, 2014
Raphael Sperry says architects should change their ethics code to ban involvement in designing torture chambers
updated 10:35 PM EST, Tue December 23, 2014
Paul Callan says Sony is right to call for blocking the tweeting of private emails stolen by hackers
updated 7:57 AM EST, Tue December 23, 2014
As Christmas arrives, eyes turn naturally toward Bethlehem. But have we got our history of Christmas right? Jay Parini explores.
updated 11:29 PM EST, Mon December 22, 2014
The late Joe Cocker somehow found himself among the rock 'n' roll aristocracy who showed up in Woodstock to help administer a collective blessing upon a generation.
updated 4:15 PM EST, Tue December 23, 2014
History may not judge Obama kindly on Syria or even Iraq. But for a lame duck president, he seems to have quacking left to do, says Aaron Miller.
updated 1:11 PM EST, Tue December 23, 2014
Terrorism and WMD -- it's easy to understand why these consistently make the headlines. But small arms can be devastating too, says Rachel Stohl.
updated 1:08 PM EST, Mon December 22, 2014
Ever since "Bridge-gate" threatened to derail Chris Christie's chances for 2016, Jeb Bush has been hinting he might run. Julian Zelizer looks at why he could win.
updated 1:53 PM EST, Sat December 20, 2014
New York's decision to ban hydraulic fracturing was more about politics than good environmental policy, argues Jeremy Carl.
updated 3:19 PM EST, Sat December 20, 2014
On perhaps this year's most compelling drama, the credits have yet to roll. But we still need to learn some cyber lessons to protect America, suggest John McCain.
updated 5:39 PM EST, Mon December 22, 2014
Conservatives know easing the trade embargo with Cuba is good for America. They should just admit it, says Fareed Zakaria.
updated 8:12 PM EST, Fri December 19, 2014
We're a world away from Pakistan in geography, but not in sentiment, writes Donna Brazile.
updated 12:09 PM EST, Fri December 19, 2014
How about a world where we have murderers but no murders? The police still chase down criminals who commit murder, we have trials and justice is handed out...but no one dies.
updated 6:45 PM EST, Thu December 18, 2014
The U.S. must respond to North Korea's alleged hacking of Sony, says Christian Whiton. Failing to do so will only embolden it.
updated 4:34 PM EST, Fri December 19, 2014
President Obama has been flexing his executive muscles lately despite Democrat's losses, writes Gloria Borger
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT