Defining Down Revenge Porn

Via the Daily News’ crack court reporter, Oren Yaniv, a decision was issued in New York’s first “revenge porn” prosecution:

New York’s first “revenge porn” case was nixed.

A Manhattan judge dismissed criminal charges Tuesday against a man who shared naked photos of his girlfriend on his Twitter account and also sent the nudes to her sister and employer.

“The Court concludes that defendant’s conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged,” Criminal Court Judge Steven Statsinger wrote in a decision published Wednesday.

The opinion, People v. Barber, starts with a shaky premise:

This case appears to the first in which a New York court has considered criminal charges stemming from what has come to be known as “revenge porn.”[FN1] Defendant is accused of posting nude photos of the complainant, who was then his girlfriend, to his Twitter account and to have sent those same photos to her employer and sister, without her consent. After carefully considering the allegations in the Information, the Court concludes that defendant’s conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged.

Footnote 1: This phenomenon has become common enough to have its own Wikipedia page, which defines the conduct as “sexually explicit media that is publicly shared online without the consent of the pictured individual.” http://en.wikipedia.org/wiki/Revenge_porn (last accessed February 11, 2014). That is precisely what is alleged in this case.

Curiously, the court cited to Wikipedia for its definition of “revenge porn,” a source that grade school teachers typically reject, while the 9th Circuit was castigated for citing to a New York Times article.

Up to now, discussion of revenge porn has centered on the scum websites of Hunter Moore, Kevin Bollaert and Casey Meyering, who created them to serve as repositories for images designed to harm women and make themselves a cheap buck. Barber raises different issues.

According to Judge Statsinger’s decision, at the time Ian Barber twitted naked images of Adriana Batch, they were still boyfriend and girlfriend.  Based upon the date of the twit, July 26, 2013, and the date of arraignment, August 2, 2013, the relationship didn’t last much longer.

While the use of the word “porn” in revenge porn is hyperbolic, as nude photos are not pornography by any legal definition, it carries the negative connotation of unacceptability to most people, and the connotation of sexual gratification to those inclined to seek out porn. So as much as it might be a troubling descriptor, it serves its purpose of imparting what’s wrong with this conduct.

But what of the revenge aspect? If the two were still dating, engaged in a relationship of some sufficient degree that he was given possession of nude photos, does the word “revenge” apply?  There is nothing in the opinion about what, if anything, was said in the offending twit. Would it matter if Barber twitted, “my girlfriend is the most beautiful woman ever”?

Another issue unreached in the case is the dispute between Barber and Batch as to whether she had consented to his twitting the image. She says no. He says yes. In her favor, it appears that she promptly went to the police to complain of Barber’s conduct. In his favor, twitting a nude image of your girlfriend without her consent is surely the way to keep a relationship thriving.  But the judge assumed the complaining witness’ allegations to be truthful, which was appropriate given the ruling, if not the rhetoric.  Of course, in the absence of due process, it’s presumptive at this stage of the proceedings.

Yet there is an additional twist that appears to have gotten short shrift in the decision.  Barber also sent the images to Batch’s employer and sister. This conduct seems qualitatively different, as it’s nearly impossible to conceive of a benign motive to send such an image to a person’s employer. Perhaps there is a detail that would explain this, but if so, it eludes me.

While Judge Statsinger characterizes Barber’s conduct as “reprehensible,” which seems somewhat dependent on a factual determination that had yet to be made as to who was telling the truth as far as consent, he nonetheless held that it failed to meet the elements of any of the three misdemeanor offenses charged.  Clearly, the judge was correct in his ruling.

But this raises the question of whether Barber’s conduct, a twit of nude photos of a woman who was, at the time, his girlfriend, should be a crime. It’s certainly not the same as what miscreants like Moore, Bollaert and Meyerling were doing, but it’s also hardly harmless in the absence of a willingness by Batch to have nude images of her on the internets.

On the up side, Batch’s complaint was taken seriously by the New York City Police Department, who didn’t blow her off but took her complaint and acted upon it. As did the district attorney’s office.  On the down side, the charges levied didn’t cut it and the case was dismissed.  Barber may have beaten the rap, but he was still forced to take the ride.

Had there been an expansive anti-revenge porn law in effect to hold the medium criminally liable for hosting the images Barber put online, Twitter would have been in the well next to Barber. Would that have been a desired outcome?

As most of the discussion surrounding “revenge porn” has been on a monumentally simplistic level, this case provides some insight into the real life concerns as the issue filters down from the major players of revenge porn to individuals who are swept up by the vague concepts and terminology.  Ian Barber may have been a blithering idiot to have put images of his girlfriend on Twitter, regardless of whether he thought she approved or not, but should he be criminally punished for it?  As for sending images to the employer, that’s another story.

One thing is certain. Don’t publish nude pictures of your girlfriend (or boyfriend, for that matter) on the internet. Just don’t do it.

24 comments on “Defining Down Revenge Porn

  1. Charles. B. "Brad" Frye

    Mark Bennett, of Texas, who has written extensively on this subject, recently won a case invalidating all (or the most important part) of Texas’s “revenge porn” statute. These statutes seem difficult to square with established notions of due process and the First Amendment.

    1. SHG Post author

      Would that be the Houston Mark Bennett? Because if it was, then the case he won had nothing whatsoever to do with revenge porn, but with online solicitation of a minor. But I guess accuracy is for other people.

        1. Charles. B. "Brad" Frye

          Yikes. “New Frye test.” Good one. I’ve already sworn off commenting in the morning before the third cup of coffee!

          1. SHG Post author

            There are few things I admire more than a guy who can take a punch with a sense of humor. Maybe that should be the new “Frye” test.

  2. Kaylei Elworth

    Are you implying that nude photos are never pornography? I don’t think there’s a legal distinction between photos and video that contain explicit sexual content. Or there’d be a whole lot of happy child pornography defendants.

  3. DDJ

    I like the ole “If you don’t want it on the front page of the New York Times … Don’t.”

    If young women and men, or the not so young, choose to make and set free those particular sorts of chickens they shouldn’t be surprised or upset when they come home to roost.

    Commercial exploitation might be different, but these are competent adults in a modern society. They have an obligation to conduct themselves in such a way as to avoid foreseeable negligence, risk or harm, do they not?

    1. SHG Post author

      This is where things get dicey. On the one hand, the fact that a woman gives a man a nude photo of herself does not make it her fault that he took that photo and displayed it to the world. This is where victim blaming comes in. His act of publishing it is independent of her act of giving it to him.

      Does she open herself to risk by doing so? Obviously. Is she at fault for it. I don’t think so. I don’t consider publishing a nude image of someone without consent foreseeable in the normal course of things. But then, I’m old, and think this whole thing is outrageous and absurd. None of this should be happening, and I can’t for the life of me understand why any of this is happening.

      1. Alex Stalker

        I think that’s a generational issue. If someone else has pictures of you, it’s not unreasonable to fear at some point in time they could enter the internet. And the internet is both insecure and forever.

        In this day and age I think the takeaway is to not let anyone else have pictures of you that you would fear being posted somewhere on the internet. Or at least, if I had kids, that’s what I’d teach them.

        1. SHG Post author

          My takeaway goes to both sides: I taught my children to do nothing to create the potential for them to be compromised on the internet, and never to do anything to anyone else that would compromise them. But then, I made both my kids read Dan Solove’s The Future of Reputation so they would appreciate the dangers the internet posed.

      2. Fubar

        But then, I’m old, and think this whole thing is outrageous and absurd. None of this should be happening, and I can’t for the life of me understand why any of this is happening.

        For self-protection, we need to revive the ancient common writ of Abstinere ab gramina mea!

  4. AlphaCentauri

    I’m a little concerned about how much you consider the fact that she was his girlfriend at the time to be evidence that his actions were stupid rather than malicious. To me, it sounds like an abusive relationship, where he considered her “his girlfriend” in the sense that he owned her like his car or any other object.

    If it was in fact an abusive relationship, logic goes out the window. She could have been with him at that point because he was very manipulative and she wasn’t skilled at seeing through it or brave enough to risk standing up to him, not because she trusted him enough to allow him to take nude photos of her.

    It might well have been her sister or her employer who marched her to the police station to make the complaint once they received the photos, and that without them intervening, she would still have been afraid to object to his behavior.

    1. SHG Post author

      We know that there were boyfriend/girlfriend because the decision says so. We don’t know that the relationship was abusive, because it doesn’t say so. To make that leap involves pure speculation, and the problem with that is that we are then free to engage in all manner of speculation to suit our biases, but have no basis whatsoever to know whether any of it is true.

  5. AlphaCentauri

    “But this raises the question of whether Barber’s conduct, a twit of nude photos of a woman who was, at the time, his girlfriend, should be a crime.”

    My point is that the fact that he she was his girlfriend at the time doesn’t raise that question at all. Being someone’s girlfriend does not give them a right of control over you. He didn’t send the photos to his own friends. He sent them to people she knew. Whether you call it “revenge” because she’s escaped the relationship or “control” because she hasn’t, it should be treated the same way.

    1. SHG Post author

      The “revenge porn” aspect of this, if it can be so described, was his twit of the picture publicly, not the sending it the employer and sister. It has nothing to do with his “right of control” over her, but with his intent and understanding of her approval/disapproval of his conduct. Crimes aren’t made of outcomes we don’t like, but of mens rea, a culpable mental state.

      I realize that this is all fuzzy, as those promoting revenge porn contend that it’s all outcome and mental state should make no difference, but that’s what distinguishes crimes from conduct that shouldn’t be criminal.

  6. Pingback: Revenge Porn Prosecution Stumbles In New York | Technology & Marketing Law Blog

  7. Patrick Maupin

    Just tell your kids to register their selfies with the copyright office before they share them — then they can go for $150K statutory damages on the re-share.

      1. Patrick Maupin

        Sorry, didn’t put it in the right place. It was more of tongue-in-cheek “solution” to this very valid lament:

        “Does she open herself to risk by doing so? Obviously. Is she at fault for it. I don’t think so. I don’t consider publishing a nude image of someone without consent foreseeable in the normal course of things. But then, I’m old, and think this whole thing is outrageous and absurd. None of this should be happening, and I can’t for the life of me understand why any of this is happening.”

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